This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2028

 

State of Minnesota,

Respondent,

 

vs.

 

Angel Carrera-Valdez,

Appellant.

 

Filed April 18, 2006

Affirmed

Lansing, Judge

 

Stearns County District Court

File No. K3-02-3889

 

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

 

Janelle Kendall, Stearns County Attorney, Shan C. Wang, Assistant County Attorney, 705 Courthouse Square, Administration Center – Room 448, St. Cloud, MN 56303 (for respondent)

 

John Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            On remand for redetermination of a probation revocation, following State v. Modtland,695 N.W.2d 602 (Minn. 2005), the district court found that Angel Carrera-Valdez’s probation violations demonstrated a need for confinement to protect public safety.  Carrera-Valdez appeals the revocation as an abuse of discretion and, in a supplemental pro se brief, challenges the violation findings.  Because the previous appeal affirmed the district court’s findings on the violation and the district court acted within its discretion by revoking Carrera-Valdez’s probation, we affirm.

F A C T S

            Angel Carrera-Valdez pleaded guilty in October 2002 to a third-degree controlled substance crime.  The district court sentenced him in April 2003 to the presumptive guidelines sentence of fifty-one months in prison but departed downward dispositionally by staying the sentence for up to twenty years on specific probationary conditions.  These conditions included paying restitution and fines, following all recommendations of his chemical-dependency treatment, and submitting to random testing to ensure abstinence from alcohol and mood-altering substances.  The probation also implicitly included the general conditions that he regularly report to a designated probation officer and that he commit no additional violations of the law.

In July 2003 police arrested Carrera-Valdez for receiving stolen property.  After he pleaded guilty to the ensuing felony charge in November 2003, the state alleged that he had violated his probation by failing to remain law abiding, complete chemical-dependency treatment, comply with alcohol-testing requirements, pay court-ordered fines and restitution, and maintain contact with his probation officer.

Following a probation-violation hearing, the district court found by clear and convincing evidence that Carrera-Valdez had failed to remain law abiding when he committed the July 2003 felony.  The court further found that his probation violations were not excused by his intervening incarceration.  At the probation-violation sentencing hearing, the state argued that committing the July 2003 felony, absconding from probationary supervision, and failing to complete chemical-dependency treatment demonstrated that Carrera-Valdez was a significant public-safety risk.  The district court revoked the stay of execution and committed Carrera-Valdez to the commissioner of corrections for fifty-one months.  The record contains no specific findings on whether the need for confinement outweighed the policies favoring probation.

Carrera-Valdez appealed his probation violation, and we affirmed in an unpublished opinion.  State v. Carrera-Valdez, No. A04-630, 2004 WL 2661483 (Minn. App. Nov. 23, 2004), rev’d in part, 696 N.W.2d 790 (Minn. 2005).  The supreme court granted Carrera-Valdez’s petition for further review and stayed proceedings pending final disposition in State v. Modtland, 695 N.W.2d 602 (Minn. 2005).  In Modtland the supreme court abrogated cases that allowed for a “sufficient evidence exception” to the requirement of on-the-record findings as articulated in State v. Austin, 295 N.W.2d 246 (Minn. 1980).  Modtland, 695 N.W.2d at 606.  Following the release of Modtland, the supreme court reversed Carrera-Valdez on the probation-revocation issue and remanded to the district court for a new decision in light of Modtland.  State v. Carrera-Valdez, 696 N.W.2d 790 (Minn. 2005).

            On the record at the resentencing hearing, the district court restated its earlier findings that Carrera-Valdez had violated the conditions of his probation.  Specifically, the district court stated that Carrera-Valdez had failed to remain law abiding, complete chemical-dependency treatment, maintain contact with his designated probation agent, comply with court-ordered chemical testing, and pay court-ordered fines, surcharges, and restitution.  The district court recognized that the failure to make court-ordered payments might be excused by financial inability but restated its earlier finding that some of the violations were not excusable or unintentional.  Finally, the district court weighed the factors supporting the need for confinement against the policies favoring probation and reinstated the previous fifty-one-month executed sentence.  Carrera-Valdez appeals the reinstatement of his sentence, contending that the decision is an abuse of discretion.  In a supplemental pro se brief, he challenges the findings supporting the revocation.

D E C I S I O N

            To revoke probation and execute an imposed sentence, the district court must (1) designate the specific condition or conditions that the defendant has violated, (2) find that the violation was intentional or inexcusable, and (3) determine that the need for confinement outweighs the policies favoring probation.  State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).  The district court has broad discretion in determining whether the evidence is sufficient to revoke probation and will be reversed only if there is a clear abuse of discretion.  Id.at 249-50.  Before the district court revokes probation, however, it must make the required Austinfindings on the record.  State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005).

At the resentencing hearing, the district court identified the specific conditions that Carrera-Valdez violated.  The court discussed Carrera-Valdez’s commission of a felony and his failure to complete chemical-dependency treatment, comply with court-ordered chemical testing, maintain contact with his probation agent, and make court-ordered payments.  Although the district court acknowledged that Carrera-Valdez’s limited financial resources might excuse his failure to make the court-ordered payments it concluded that some of his violations, particularly the intervening felony, were neither excusable or unintentional.  In evaluating whether the need for confinement outweighed the policies favoring probation, the district court heard argument from both the state and the defense.

The district court rejected Carrera-Valdez’s argument that the proposed disposition of a stayed sentence on his July 2003 felony demonstrated that incarceration was unnecessary to protect public safety.  Instead, the district court reasoned that this intervening felony demonstrated that it had “an obligation to protect the public from . . . additional criminal offenses.”  The court emphasized that Carrera-Valdez “remains untreated for the chemical dependency issues” that formed the basis for staying execution of the original prison sentence in April 2003.  And, finally, the district court commended Carrera-Valdez for his positive development and participation in programs, but noted that he progressed only when closely supervised in a confined setting.  For these reasons the district court concluded that the need for confinement outweighed the policies favoring probation. 

We see no abuse of discretion in the district court’s findings and conclusions on remand.  The district court restated the specific probationary violations, identified the violations that were intentional and inexcusable, and balanced Carrera-Valdez’s interest in freedom with the state’s interest in ensuring his rehabilitation and protecting public safety.  See id. (stating required elements for consideration in probation-revocation hearings).  Courts have consistently emphasized the primacy of conditions necessary to achieve rehabilitation when determining the appropriate response to a probation violation.  See id. at 607 (recognizing state’s interest in ensuring rehabilitation); see also Austin, 295 N.W.2d at 251 (sanctioning revocation when district court finds, on basis of intervening conduct, that offender is in need of correctional treatment, which can most effectively be provided during confinement). 

In a pro se supplemental brief, Carrera-Valdez challenges the district court’s findings that he violated the conditions of his probation and argues alternatively that any violations were excusable.  The district court made findings on the record at the first probation-revocation hearing on Carrera-Valdez’s violation of his probationary conditions and considered whether the violations were unintentional or excusable.  These determinations were affirmed in the first appeal to this court.  Carrera-Valdez, 2004 WL 2661483 at *2.  Consequently, these issues are not subject to reconsideration on remand to address the failure to make on-the-record findings of whether the need for confinement outweighed the policies favoring probation.  See Janssen v. Best & Flanagan, LLP, 704 N.W.2d 759, 763 (Minn. 2005) (confirming that district courts may, consistent with remand instructions, determine procedures on remand).

            Affirmed.