A04-966

State of Minnesota,

Respondent,

vs.

Anthony Carman,

Appellant.

Filed January 11, 2005

Affirmed

Willis, Judge

Olmsted County District Court

File No. K8-01-3989

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Government Center, 151 Fourth Street SE, Rochester, MN 55904 (for respondent)

John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge; Schumacher, Judge; and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant challenges the district court’s revocation of his probation, arguing that the district court abused its discretion by making no written findings regarding why the need for appellant’s confinement outweighs the policies favoring probation and, alternatively, that the record does not support such findings. Because the district court did not abuse its discretion, we affirm.

FACTS

In November 2001, four juveniles, including R.G.L. and T.P.D., stole ten pounds of marijuana from a drug dealer in Rochester. A few days later, the drug dealer and four companions kidnapped and assaulted several juveniles in an attempt to recover the stolen marijuana. After two juveniles were kidnapped from a park and put into a van, the drug dealer and his companions drove the van to a meeting place to sell drugs to appellant Anthony Carman. Carman left in the van with the drug dealer and the others. The juveniles were threatened with a gun and assaulted, and they eventually told the drug dealer that T.P.D. had the stolen marijuana.

T.P.D. was lured to a location where the drug dealer grabbed him and took him into the van. T.P.D. returned some of the marijuana and told the drug dealer that R.G.L. had the rest. The drug dealer found R.G.L. and put a gun in his mouth, which caused him to return the balance of the marijuana to the drug dealer. Carman was present, but there was no evidence that he assaulted any of the juveniles, and there was evidence that he tried to stop the drug dealer from striking one of the juveniles.

In late November 2001, Carman was charged with three counts of aiding and abetting first-degree aggravated robbery under Minn. Stat. § 609.245, subd. 1; six counts of aiding and abetting kidnapping under Minn. Stat. § 609.25, subds. 1(2), 1(3), and 2(1); six counts of aiding and abetting second-degree assault under Minn. Stat. § 609.222, subd. 1; seven counts of aiding and abetting terroristic threats under Minn. Stat. § 609.713, subd. 1; and six counts of aiding and abetting first-degree burglary under Minn. Stat. § 609.582, subd. 1(a), (b). Two of the aiding and abetting first-degree aggravated robbery counts and two of the aiding and abetting first-degree burglary counts were dismissed. Carman pleaded guilty to the remaining charges and cooperated in the prosecution of his co-defendants.

Carman was given a downward dispositional departure at sentencing in June 2003 because he cooperated with law enforcement, played a passive or minor role in the crimes, and the victims approved of the departure. Carman was sentenced to 180 months, stayed for 20 years, and was placed on probation. Under the terms of his probation, Carman agreed, inter alia, to: (1) abstain from all mood-altering chemicals, (2) avoid known users or sellers of drugs, (3) avoid establishments whose primary purpose is to serve alcohol, and (4) remain law-abiding.

In February 2004, Carman’s probation officer reported to the district court that Carman had violated the terms of his probation by: (1) using cocaine and alcohol, (2) associating with people known to be involved in the use and sale of drugs, (3) going into a bar to speak with his girlfriend, and (4) failing to remain law-abiding because he was arrested for first-degree burglary, damage to property, and interfering with a 911 call.

At his probation-revocation hearing in February 2004, Carman admitted to the first three violations of his probation but denied the fourth because the criminal case was still pending. Carman also told the court that he had not been involved in any chemical-dependency treatment but was enrolled in a treatment program that was going to start in a few weeks and that his friends and family were helping him straighten out his life. The district court found Carman’s violations to be intentional and willful and executed the 180-month sentence. This appeal follows.

D E C I S I O N

Carman argues that the district court abused its discretion by revoking his probation because it did not make written findings regarding why the need for confinement outweighs the policies favoring probation and that the record does not support such findings. The district court has broad discretion when determining if there is sufficient evidence to revoke probation. State v. Austin, 295 N.W.2d 246, 249 (Minn. 1980). Its judgment should be reversed only upon a clear abuse of that discretion. Id. at 250.

Before revoking a defendant’s probation, a district court must: (1) designate the specific condition or conditions that were violated, (2) find that the violation was intentional or inexcusable, and (3) find that the need for confinement outweighs the policies favoring probation. Id. Generally, the district court must make specific findings in the record that show it conducted the three-step Austin analysis. State v. Balma, 549 N.W.2d 102, 105–06 (Minn. App. 1996). But a district court does not abuse its discretion by revoking probation without making explicit findings on each element of the Austin analysis if the record supports a conclusion that the Austin analysis is satisfied. Austin, 295 N.W.2d at 250; State v. Hamilton, 646 N.W.2d 915, 918 (Minn. App. 2002), review denied (Minn. Sept. 25, 2002). Carman concedes that the first two factors of the Austin analysis are met and only challenges the satisfaction of the third factor. Carman argues that the district court was required to make explicit findings regarding why the need for confinement outweighs the policies favoring probation and abused its discretion by not doing so.

Carman cites two cases in support of his argument: In State v. Hlavac, this court determined that the district court abused its discretion by failing to make explicit written findings regarding the Austin factors because, at the revocation hearing, defense counsel specifically alleged that the state failed to produce “certain evidence that the government must prove under the Austin . . . litany.” 540 N.W.2d 551, 552–53 (Minn. App. 1995). But Carman’s counsel did not raise the issue of the absence of such evidence at Carman’s revocation hearing. We conclude that Hlavac is, therefore, inapposite.

Carman also points out that in State v. Balma, this court stated that “the trial court, at a minimum, must make specific findings on the record of the proceedings, if no written findings are made as part of the resulting order.” 549 N.W.2d 102, 105 (Minn. App. 1996). Here, the district court stated in its order that the “defendant has exhausted all community resources.” And at the revocation hearing, the district court weighed the fact that Carman was “a young man and [the court] wanted to give [him] the benefit of the doubt” against the fact that Carman was “someone who doesn’t have any understanding of the relationship of [his] drug use to the crimes that [he is] committing.” We conclude that this was sufficient under Balma.

Carman argues, alternatively, that the record does not support findings that the need for his confinement outweighs the policies favoring probation. See Austin, 295 N.W.2d at 250. We disagree. The district court concluded that Carman failed to abide by the conditions of his probation by using cocaine and alcohol, by entering an establishment whose primary purpose was to sell alcohol, and by associating with known drug dealers. The district court also found that Carman had been warned that his sentence would be executed if he violated his probation, that his violations were intentional, and that he “exhausted all community resources.”

A district court cannot revoke probation for technical violations; it must show that the defendant “cannot be counted on to avoid anti-social activity.” Id. at 251 (quotations omitted). The need for confinement outweighs the policies favoring probation if any of the following is present:

(i) confinement is necessary to protect the public from further criminal activity by the offender; or

(ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or

(iii) it would unduly depreciate the seriousness of the violation if probation were not revoked.

Id. (citation omitted).

Here, the record supports the conclusion that Carman is in need of correctional treatment that can most effectively be provided if he is confined. Carman did not receive treatment for his substance-abuse problems although he had nearly eight months after being placed on probation to do so. His substance abuse got Carman involved in the kidnappings and assaults in the first place: he was present because he was meeting with the dealer to purchase drugs. While incarcerated, Carman will be able to receive the chemical-dependency treatment that he needs.

The record also supports the conclusion that it would unduly depreciate the seriousness of the violations if probation were not revoked. Again, substance abuse appears to be the basis for Carman’s involvement in the offenses to which he pleaded guilty. The conditions of his probation were designed in large measure to keep Carman away from drugs and alcohol and people and places that sell them. He violated all such conditions.

Finally, Carman was warned that violating his probation could result in the execution of his sentence; such a warning also supports a district court’s decision to revoke probation. See State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), review denied (Minn. July 20, 1995).

Because the record supports the conclusion that the need for confinement outweighs the policies favoring probation, the district court did not abuse its discretion by revoking Carman’s probation.

Affirmed.