This opinion will be unpublished and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

A05-1388

 

 

State of Minnesota,

Respondent,

 

vs.

 

Brandon Arndt,

Appellant.

 

 

Filed June 13, 2006

Affirmed

Toussaint, Chief Judge

 

Olmsted County District Court

File No. K7-99-340

 

 

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

 

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

 

John M. Stuart, State Public Defender, Richard A. Schmitz, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Brandon Arndt pleaded guilty to first-degree criminal sexual conduct in 1998, and the sentencing court stayed appellant’s 86-month prison sentence, placing him on probation subject to certain conditions, including completion of sex offender treatment.  After appellant was terminated from treatment for failing a polygraph examination and engaging in disruptive behavior, the district court revoked appellant’s probation and executed the stayed sentence.  Appellant challenges the probation revocation, arguing that the district court abused its discretion by failing to make the requisite findings to support the revocation and that the evidence was insufficient to show that the probation violation was intentional and the need for confinement outweighed the policies favoring probation.  We affirm.

D E C I S I O N

The district court has “broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.”   State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  A district court’s failure to exercise its discretion will result in a remand for reconsideration.  See, e.g., State v. Abeyta, 328 N.W.2d 443, 445 (Minn. 1983).  Whether the district court has made the findings required under Austin presents a question of law, which is subject to de novo review.  State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005). 

The district court must engage in a three-step analysis before probation can be revoked:  (1) designate the specific condition that was violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation.  Austin, 295 N.W.2d at 250.  The decision to revoke cannot be a reflexive reaction to an accumulation of technical violations but requires a showing that the offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial activity.  Id. at 251. 

In the past, appellate courts have applied a “sufficient evidence exception” to the requirement that district court make findings in support of the Austinfactors.  See State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995) (stating that district court’s failure to make express findings on Austin factors is not abuse of discretion when record contains sufficient evidence to warrant revocation), review denied (Minn. July 20, 1995).  But the “sufficient evidence” exception recognized by this court in Theel cannot “be reconciled with the language of Austinitself.”  Modtland, 695 N.W.2d at 606.  It is not the defendant’s burden to request the district court to make specific findings on each of the Austinfactors;  as Austinholds, the district court is required to make the three findings on the record before probation may be revoked.  Id. 

Appellant argues that the district court abused its discretion when it revoked his probation without making the requisite findings on each of the Austinfactors. But the record indicates that the district court addressed the three Austinfactors both orally and in writing.  The district court addressed the first two factors at the initial probation revocation hearing, finding that appellant violated a condition of probation by failing to complete sex offender treatment and that the violation was “intentional and willful.”

The district court did not address the third factor at that time because appellant’s counsel proposed that the hearing be continued for 30 days to provide appellant the opportunity to be re-admitted to the treatment program.  At the subsequent hearing, the district court addressed the third Austinfactor, finding that “at this juncture there aren’t any treatment options available to you.”  Following the second hearing, the district court issued a written order containing its findings regarding the three Austinfactors. 

Appellant nonetheless argues that the district court abused its discretion by dividing the probation revocation into two separate hearings.  Appellant relies on Modtland to argue that the district court revoked his probation at the first hearing and did not make findings regarding all three Austinfactors until the second hearing.  But Modtland is distinguishable.  In that case, the district court revoked probation during the “probation revocation” phase of the hearing without making findings regarding two of the three Austinfactors, then proceeded to the “resentencing” phase to hear testimony on whether the offender should be allowed to continue on probation and return to treatment.  The supreme court reversed, stating, “Austindoes not support this division of the revocation hearing into a ‘revocation’ phase and a ‘resentencing phase.’  Instead, Austincontemplates an evidentiary hearing in which the district court makes the requisite three findings before deciding whether to revoke the defendant’s probation.”  695 N.W.2d at 607. 

Here, the district court did not officially revoke appellant’s probation until after it addressed the three Austinfactors at the second hearing.  Further, the first hearing was continued at the request of appellant’s counsel.  A defendant may not challenge a district court’s action on appeal when the defendant’s attorney requested the action.  Majerus v. Guelsow, 262 Minn. 1, 11, 113 N.W.2d 450, 457 (1962).

Appellant also argues that insufficient evidence supports the district court’s findings that the probation violation was intentional and that the need for confinement outweighed the policies favoring probation.  Appellant does not dispute that he violated a specific condition of probation. 

            Appellant first contends that the evidence is insufficient to show an “intentional” violation because appellant’s failure of the polygraph examination could be attributed to the inherent unreliability of such tests or the erroneous administration of this particular test.  But the record indicates that appellant previously admitted the sexual misconduct in a psychosexual evaluation, yet denied such conduct during a polygraph examination. Thus, there is evidence that the failed polygraph is attributable to appellant’s intentional deception rather than some flaw in the examination itself.  Further, even assuming that the polygraph exam failure was insufficient to establish an intentional violation, the district court also found that appellant was terminated from treatment for his behavior when confronted with the results.  Appellant’s violent and disruptive behavior, which threatened the safety of others in the program and required police intervention, clearly was intentional.  Consequently, sufficient evidence supports the district court’s finding that the violation was intentional.

Second, appellant contends that the evidence is insufficient to show that confinement outweighed the policies favoring probation because it was appellant’s first probation violation.  But the record indicates that, in addition to the current violation, appellant has had a string of unsuccessful treatment attempts.  After five years, appellant had not only failed to complete sex offender treatment, but actually regressed in treatment by denying any responsibility for the offense.  Appellant refused to take the necessary steps to be re-admitted to the sex offender program following the violation.  On this record, there is sufficient evidence to support the finding that the need for confinement outweighed the policies favoring probation.    

Because the district court made the requisite findings regarding the Austinfactors prior to revoking probation and the findings were supported by the evidence, the district court did not abuse its discretion in revoking appellant’s probation.

Affirmed.