This opinion will be unpublished and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

A05-2027

 

State of Minnesota,

Respondent,

 

vs.

 

Jeffrey C. Murray,

Appellant.

 

Filed August 22, 2006

Affirmed

Kalitowski, Judge

 

Ramsey County District Court

File No. K2-95-3952

 

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

 

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

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

 

            Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            On appeal from an order revoking probation imposed for first-degree criminal sexual conduct, appellant Jeffrey C. Murray argues that the district court (1) erred by failing to make the findings necessary to revoke his probation; (2) abused its discretion by revoking his probation; and (3) erred in calculating his custody credit.  We affirm. 

D E C I S I O N

 

I.

When revoking probation, the 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 need for confinement outweighs the policies favoring probation.”  State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).  The third factor is satisfied if:

(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. at 251.  Whether the district court made the proper findings before revoking probation is a legal question, which this court will review de novo.  State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).

Recently, the supreme court reaffirmed the central holding from Austin, requiring specific consideration of each factor.  See Modtland, 695 N.W.2d at 606.  In so doing, the supreme court rejected decisions from this court allowing a reviewing court to affirm the district court so long as there was “sufficient evidence” supporting the district court’s probation revocation, even if the district court did not make the specific findings required by Austin.  See State v. Hlavac, 540 N.W.2d 551, 552-53 (Minn. App. 1995); State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), review denied (Minn. July 20, 1995); State v. Wittenberg, 441 N.W.2d 519, 521 (Minn. App. 1989).  The court emphasized, “in making the three Austin findings, courts are not charged with merely conforming to procedural requirements; rather, courts must seek to convey their substantive reasons for revocation and the evidence relied upon.”  Modtland, 695 N.W.2d at 608. 

            Here, appellant pleaded guilty to criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(g) (1994).  Appellant received a downward dispositional sentencing departure.  The district court stayed execution of the presumptive 86-month sentence and placed appellant on probation for 30 years.  Probation was conditioned on appellant serving 365 days in the workhouse, completing a sex-offender program such as Alpha House, and following probation’s recommendations regarding chemical-dependency treatment and aftercare. 

Appellant subsequently violated probation three times.  On December 16, 1997, appellant admitted that he violated the terms of his probation because he used alcohol, marijuana, and cocaine; had contact with the victim; and was suspended from treatment at Alpha House.  The district court ordered appellant to remain on probation with the additional special conditions that he (1) serve 180 days in the workhouse; (2) abstain from the use of alcohol and other mood-altering substances; (3) have no contact with the victim; and (4) reenter and complete treatment at Alpha House. 

On October 12, 1999, appellant admitted that he violated the terms of his probation because he used alcohol and tested positive for marijuana.  The district court ordered appellant to remain on probation with the additional condition that he serve 75 days in the workhouse.  The court added that there was a “very strong likelihood” that it would execute appellant’s sentence if he violated probation again.    

At his third probation-violation hearing on July 11, 2005, appellant admitted that he violated the terms of his probation by failing to report to his probation officer as requested and by failing to report changes of residence and employment.  The district court revoked appellant’s probation and executed his 86-month sentence.   

The district court addressed all three Austin factors on the record at appellant’s third probation-violation hearing.  The court concluded that appellant violated the terms of his probation, that the violations “were without justification or excuse,” and that “the need for public safety in this matter outweighs the need for rehabilitation.”  The court stated that it had reached “the end of the line” with appellant and refused to give appellant any more opportunities “given the seriousness of this offense and the fact that you’ve had several opportunities in the past.”  Additionally, the court found that appellant was not amenable to probation and that although he may have been capable of succeeding in probation, he seemed unwilling to do so. 

Appellant argues that the district court’s finding on the third Austin factor was insufficient because the court found that “the need for public safety . . . outweighs the need for rehabilitation” rather than finding that the “need for confinement outweighs the policies favoring probation.”  We disagree. 

The Minnesota Supreme Court has explicitly stated that “[t]he purpose of probation is rehabilitation.”  Austin, 295 N.W.2d at 250.  Thus, the district court’s substitution of the term “rehabilitation” for the phrase “policies favoring probation” does not render its finding on the third Austinfactor insufficient.  Because the district court addressed all three of the factors required to revoke probation and communicated the substantive reasons for revoking appellant’s probation, we conclude that the district court’s findings were sufficient under Austin and Modtland. 

II.

A 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.”  Austin, 295 N.W.2d at 249-50.  “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 (quotations omitted).  The state has the burden of proving the probation violation by clear and convincing evidence.  Minn. R. Crim. P. 27.04, subd. 3. 

When the district court revoked appellant’s probation, the court stated that it had “reached the end of the line” with appellant and that it did not know whether it could continue appellant’s probation given the seriousness of his offense and the fact that appellant had been given several opportunities in the past.  Furthermore, the court acknowledged that appellant was capable of succeeding in probation but had not demonstrated any willingness to do so.  The court also stated that it was concerned with public safety given appellant’s failure to comply with his probation requirements. 

Appellant argues that the district court abused its discretion by revoking probation because the evidence does not demonstrate that the need for appellant’s confinement outweighed the policies favoring probation.  We disagree.

Appellant’s failure to abide by the conditions of his probation provided a sufficient basis for the district court to conclude that he was unwilling to be rehabilitated in light of (1) the seriousness of the underlying offense; (2) the fact that appellant received a downward dispositional sentencing departure; (3) the fact that appellant failed to contact his probation officer for ten months; and (4) the fact that appellant violated probation for a third time after receiving explicit warning that such violation would likely result in the execution of his sentence.  On this record we cannot say that the district court abused its broad discretion by revoking appellant’s probation. 

III.

A defendant is entitled to jail credit for all time spent in custody following arrest, including time spent in custody on other charges, beginning when the prosecution has probable cause to charge the defendant with the current offense.  State v. Fritzke, 521 N.W.2d 859, 862 (Minn. App. 1994); see also Minn. R. Crim. P. 27.03, subd. 4(B) (requiring that “record accurately reflects all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed”).  The defendant has the burden of establishing that he is entitled to jail credit.  State v. Willis, 376 N.W.2d 427, 428 n.1 (Minn. 1985).  Determinations of jail credit are not discretionary with the district court.  State v. Parr, 414 N.W.2d 776, 778 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988); State v. Doyle, 386 N.W.2d 352, 354 (Minn. App. 1986).

Appellant contends that the district court erred by declining to grant him custody credit for the 26 months he spent in the Alpha House program.  We disagree. 

In Asfaha v. State, 665 N.W.2d 523, 528 (Minn. 2003), the Minnesota Supreme Court held that fairness and equity require that jail credit be granted for time served in a treatment facility when the “level of confinement and limitations imposed are the functional equivalent of those imposed at a jail, workhouse, or regional correctional facility.”  The court held that the district court did not clearly err by finding that a juvenile treatment center imposed restrictions that were the functional equivalent to those at a Minnesota correctional facility because (1) the building was secure, such that people could not leave or enter the facility without the control-booth operator opening doors for them; (2) there were bars on outside windows and security cameras throughout the building; and (3) when residents had to leave the premises for appointments, they were transported in mechanical restraints.  Id. at 527-28. 

Here, when the district court executed appellant’s sentence, appellant argued that he should receive custody credit of 26 months for serving in the Alpha program pursuant to Asfaha.  The district court distinguished Asfaha, stating that “Alpha House is not like that because you can leave.  You can walk away.  It does not have bars.  You can leave.  It’s not a jail.”  Because Alpha House was not the functional equivalent of a jail, the district court denied appellant’s request to grant him custody credit for time served at Alpha House. 

The record supports the district court’s findings.  Alpha House is a residential program that requires the participants to remain at the facility.  Appellant concedes that Alpha House does not have bars on its windows and that participants can physically leave if they choose to do so.  And nothing in the record indicates that participants’ movements are restrained during their stay at Alpha House.  Furthermore, appellant’s argument that the threat of probation revocation confined him to the facility is not consistent with the supreme court’s focus on physical restrictions and confinement in Asfaha.  See id. at 527-28.  On this record, we conclude that the district court did not err by finding that the restrictions imposed by Alpha House were not the functional equivalent of those imposed at a jail, workhouse, or correctional facility. 

            Affirmed.