This opinion will be unpublished and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

A05-962

 

State of Minnesota,

Respondent,

 

vs.

 

Mercedes Delrocio Ortiz,

Appellant.

 

Filed May 9, 2006

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 03051730

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487  (for respondent)

 

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

 

 

            Considered and decided by Shumaker, Presiding Judge; Halbrooks, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges her probation revocation, arguing that the district court failed to make proper findings under State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980), as required by State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005), and that there is not clear and convincing evidence to support the probation revocation.  Because we conclude that the district court’s findings are adequate under Austin and Modtland and there is clear and convincing evidence to support the probation revocation, we affirm.

FACTS

            On August 18, 2003, appellant Mercedes Ortiz pleaded guilty to first-degree controlled-substance crime and fourth-degree driving while impaired.  A Spanish interpreter was present and sworn, and he translated for appellant throughout the proceedings.  After accepting appellant’s guilty pleas, the district court imposed an 86‑month sentence but stayed execution with the conditions that appellant would serve one year in the workhouse and be on probation for three years. 

The district court also recited the conditions of appellant’s probation on the record, including that she (1) obey all the rules established by the Drug Court case manager and the court; (2) not be charged with any misdemeanors, gross misdemeanors, or felonies; (3) not use, possess, receive, or transport any firearms; (4) not use unauthorized prescription or illegal drugs; (5) keep probation informed of her residence and work and not change those without the knowledge or consent of the court; (6) successfully complete any treatment recommended, including aftercare; (7) serve 365 days in the workhouse; (8) pay $25 to the defendant’s training and employment fund during probation; (9) be employed or otherwise engaged in productive activities and fulfill any child-support obligations; and (10) complete urinary analysis, for which $250 would be credited against the fine for each clean UA.

Upon appellant’s release from the workhouse on March 24, 2004, she was immediately deported to Mexico.  Appellant re-entered the country and was arrested in California, allegedly for a drug offense, on November 6, 2004.  Appellant was then sent to Minnesota for a probation-revocation hearing.  The district court made oral findings on the Austin factors, revoked appellant’s probation, and executed the 86-month sentence with credit for time served.  This appeal follows.  

D E C I S I O N

I.

            Before revoking probation, a district court must (1) designate the specific probation condition or conditions violated; (2) find the violation to be intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation.  State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).  Although a district court’s determination that sufficient evidence exists to revoke probation will be reversed only for an abuse of discretion, the issue of whether the district court has made the required Austin findings is a legal question, which this court reviews de novo.  State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).  The Minnesota Rules of Criminal Procedure also require that in a contested probation-revocation hearing, the district court must make “written findings of fact on all disputed issues including a summary of the evidence relied upon and a statement of the court’s reasons for its determination.”  Minn. R. Crim. P. 27.04, subd. 3(4).  “The ‘written findings’ requirement is satisfied by the district court stating its findings and reasons on the record, which, when reduced to a transcript, is sufficient to permit review.”  Modtland, 695 N.W.2d at 608 n.4 (citing Pearson v. State, 308 Minn. 287, 292, 241 N.W.2d 490, 493 (1976)).

In Modtland, the Minnesota Supreme Court reaffirmed Austin’s core holding that the district court must make findings on the record on the three Austinfactors before probation is revoked.  Modtland, 695 N.W.2d at 606.  The supreme court rejected this court’s prior interpretation that allowed affirmance of a district court’s probation revocation, despite that court’s failure to make the Austin-required findings, if “sufficient evidence” existed in the record to support those factors.  Id. (citing State v. Hlavac, 540 N.W.2d 551, 553 (Minn. App. 1995)).  In so doing, the supreme court noted that the process of making all three Austin findings before revocation

emphasizes that while an intentional or inexcusable probation violation is a necessary condition for probation to be revoked, it is not a sufficient condition.  Rather, once an intentional or inexcusable violation has been found, the court must proceed to an evaluation of whether the need for confinement outweighs the policies favoring probation.

 

Modtland, 695 N.W.2d at 607-08. 

            Appellant argues that the district court’s findings were inadequate because the district court failed to find that appellant’s probation violations were intentional or inexcusable and the district court’s analysis on the third Austin factor was cursory.  But we conclude that the district court’s findings on the Austinfactors were adequate. 

            Under the first Austin factor, the district court found that appellant violated two conditions of her probation, including the requirement that she maintain contact with probation and the condition that she remain law-abiding.  Appellant’s Minnesota probation officer testified at the probation-revocation hearing that the department had no records to indicate that appellant contacted probation after she re-entered the country and that appellant told her that she was arrested in California on a drug-related charge following her re-entry into the United States. 

Under the second Austin factor, the district court found that appellant knowingly violated the probation conditions because the conditions were “set forth in the oral presentation” of the district court at sentencing, were in the written sentencing order that appellant signed, and because appellant “was on notice” that she could not return to the United States without proper documentation after she signed a notice of removal.  While the district court did not recite the language of Austin as to whether either violation was “intentional” or “inexcusable,” the district court did indicate that appellant had knowing intent regarding both violations.  We conclude that is sufficient under Modtland. 

            As to the third Austin factor, which balances the need for confinement with the policies favoring probation, the district court found that appellant was not amenable to probation because she violated the conditions of her probation by returning to the United States within the three-year probation period.  The district court also noted the following:  (1) the matter was a first-degree felony; (2) appellant was formally deported and it should have been clear to her that she had no right to be in this country; (3) nonetheless, appellant violated the law by returning to this country and made no effort to contact Minnesota probation to supervise her; and (4) appellant was arrested in California during the probation period.  Because appellant was not amenable to probation, the district court concluded that “her need for confinement outweighs putting [appellant] on probation again after a probation sanction.”  This was a sufficient finding on the third Austin factor.

II.

            Appellant also argues that even if the district court made adequate findings on the record, the evidence is insufficient to support the findings.  A district court’s decision to revoke probation must be based on sound judgment and not just the court’s will.  State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004); Austin, 295 N.W.2d at 249-50.  A violation of probation must be established by clear and convincing evidence.  Minn. R. Crim. P. 27.04, subd. 3(3).

            Specifically, appellant argues that the district court erred because the evidence does not support a finding that appellant’s violation was intentional or inexcusable because the following facts create a doubt as to intent:  (1) this was appellant’s first violation of probation; (2) the record does not indicate whether appellant was informed of her continuing obligation to report to Minnesota probation when she was deported; (3) the record does not indicate whether appellant had a probation officer/contact since she was not placed on probation in the community but was deported immediately following her detention in the workhouse.

            But we conclude that clear and convincing evidence supports a finding that appellant violated at least one of the conditions of her probation.  Appellant pleaded guilty before the district court on August 18, 2003.  A certified Spanish interpreter was sworn and translated the entire proceedings for appellant.  The district court sentenced appellant to a downward departure of a stayed sentence of 86 months and probation of three years, then noted on the record the conditions of probation including the following: that appellant was not to be charged with any misdemeanors, gross misdemeanors, or felonies; that appellant was not to possess unauthorized prescription or illegal drugs; and that appellant must keep “us” informed as to where she lived and worked and was not to change these without the knowledge or consent of the court.

            The record also contains a sentencing worksheet signed by appellant that lists the terms and conditions of her stayed felony sentence.  The fourth condition required appellant to “keep the Drug Court Case Manager and Court informed at all times of your place of residence and employment, and make no change in these without the knowledge and consent of the Court.”  Appellant’s signature appears at the bottom of this worksheet.  While appellant’s probation officer testified at the probation-revocation hearing that she was unaware of whether a Spanish interpreter translated the sentencing worksheet to appellant because she was not present at the time, the district court noted that appellant knew what was required of her because of the district court’s oral recitation of the probation conditions that were translated to appellant at the sentencing stage of the hearing and appellant’s oral acknowledgement of her understanding on the record. 

            Affirmed.