This opinion will be unpublished and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

A05-2421

 

State of Minnesota,

Respondent,

 

vs.

 

Steven Arthur Doherty,

Appellant.

 

Filed September 12, 2006

Affirmed

Hudson, Judge

 

St. Louis County District Court

File No. K1-04-601407

 

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

 

Alan L. Mitchell, St. Louis County Attorney, James T. Nephew, Assistant County Attorney, 100 North Fifth Avenue West, Room 501, Duluth, Minnesota 55802 (for respondent)

 

John M. Stuart, State Public Defender, Ngoc Nguyen, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

This is an appeal from an order revoking appellant Steven Arthur Doherty’s probation, which was imposed when Doherty pleaded guilty to first-degree felony driving while impaired (DWI).  Appellant argues that the district court abused its discretion in revoking probation without making adequate findings on two of the three factors required by State v. Austin, 295 N.W.2d 246 (Minn. 1980).  Specifically, Doherty argues that (1) the court’s Austin findings were insufficient; and (2) his consumption of alcohol and his failure to report to his probation officer did not warrant revocation where the latter was caused by a work injury.  Because the district court did not abuse its discretion, we affirm.

FACTS

 

When Steven Doherty pleaded guilty to first-degree felony DWI (test refusal) in violation of Minn. Stat. § 169A.20, subd. 2 (2004), the district court sentenced him to a guidelines sentence of 36 months with a stay of execution on the sentence.  As conditions of probation, the district court ordered Doherty to serve one year in the Northeast Regional Correctional Center (NERCC) and not to use alcohol or any other mood-altering substances.

In June 2005, following a review hearing, the district court allowed Doherty to leave the NERCC to work for the summer months and to return in the fall to serve the remainder of the one-year jail sentence.  The district court specifically stated that Doherty had to abide by all the terms and conditions of probation previously set out at the April 2005 hearing.

In late August 2005, Doherty submitted to a preliminary breath test and it showed a positive reading for the use of alcohol.  At a September 9, 2005 revocation hearing, the state alleged that Doherty violated the terms of his probation by consuming alcohol and by failing to report to his probation officer.  Doherty admitted to consuming alcohol.  He also admitted failing to report, but then attempted to excuse his failure due to a job-site injury that had him “laid up for a week[.]”  Doherty admitted that he should have called his probation officer.  As a result of the hearing, the district court found that Doherty was in violation of the terms and conditions of probation and revoked the stay of execution.  Doherty was committed to the Commissioner of Corrections for a period of 36 months.  This appeal follows.

D E C I S I O N

Doherty argues that the district court abused its discretion by revoking his probation without making findings on two of the three Austin factors.  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 discretion.”  State v. Austin, 295 N.W.2d 246, 249–50 (Minn. 1980).  But before a district court can revoke probation, it must make findings on the record which satisfy the three factors outlined in Austin.  State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005) (citing Austin, 295 N.W.2d at 250).  These three factors are: (1) a finding that a specific condition of probation was violated; (2) a finding that the violation was intentional or inexcusable; and (3) a finding that the need for confinement outweighs the policies favoring probation.  Austin, 295 N.W.2d at 250.

As a preliminary matter, appellant argues that there are “no written findings of fact at all.”  Appellant’s claim is without merit because the September 15, 2005 order includes nine findings of fact, some of which expressly address the Austin factors. 

The Austin Factors

The first required factor is that the court specify the condition of probation that was violated.  Austin, 295 N.W.2d at 250.  Here, both the hearing transcript and the findings of fact indicate that the restriction on the use of alcohol was the specific condition violated.[1]  It is not contested that this factor was met.

The second required factor is that the court must find that the violation of the condition was intentional or inexcusable.  Id. Doherty admitted that he consumed alcohol during his probation.  While Doherty did provide an excuse for his failure to report, he did not provide any excuse for his use of alcohol.  During the hearing, the court questioned Doherty about his understanding that one of the terms and conditions of his probation was to abstain from the use of alcohol.  Doherty stated that he understood the condition and admitted he consumed alcohol in violation of that condition.  Doherty further stated, “I’m not making an excuse for my drinking, I know – for some reason it grabs me.”  Doherty’s testimony, his lengthy history of alcoholism, and his ten prior DWI or test-refusal convictions provide adequate support for the district court’s finding that “Defendant’s behavior in the use of alcohol during the course of probation was intentional and not excused behavior.”  That finding satisfies the second Austin factor.

The third required factor is that the district court find that the need for confinement outweighs the policies favoring probation.  Id.  Appellant argues that because he presented additional jail time as an alternative to going to prison, the need for confinement did not outweigh the policies favoring probation.  “The purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed.”  Id.  Further, “[t]here must be a balancing of the probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and the public safety.”  Id.(citing Gagnon v. Scarpelli, 411 U.S. 778, 785, 93 S. Ct. 1756, 1761 (1973)).  This does not require a “last resort” analysis as appellant contends, but merely a showing that the “offender’s behavior demonstrates that he or she ‘cannot be counted on to avoid anti-social activity.’”  Id.at 251 (quoting United States v. Reed, 573 F.2d 1020, 1024 (8th Cir. 1978) (quoting Morrissey v. Brewer, 408 U.S. 471, 479, 92 S. Ct. 2593, 2599 (1972))).  The district court noted in finding of fact number 6 that:

[Doherty] has at least ten prior DWI or test refusal convictions.  According to the Presentence Investigation completed prior to his sentencing on April 29, 2005, [Doherty] has violated his previous probation status at least five times.  [Doherty] has a lengthy history [of] alcoholism.

 

While this is technically Doherty’s first probation violation in this file, and drinking alcohol is not a crime in itself, given the nature of the underlying offense—his tenth DWI violation—the requirement that Doherty not consume alcohol was at the heart of his probationary agreement.  Given that appellant admitted to drinking alcohol shortly after having been released on probation for his tenth DWI, a decision not to revoke the stay would trivialize the seriousness of the violation.  Doherty’s behavior—including his multiple DWI convictions, his inability to refrain from using alcohol, and his failure to abide by conditions of probation on other files—supports the district court’s determination that probation was not a viable option for Doherty.  Thus, the record supports the district court’s finding that Doherty’s confinement outweighed any policies favoring probation.

Because the district court systematically considered each of the three Austin factors in its written order to revoke the stay of execution of Doherty’s sentence, the district court’s determination does not appear to be a “reflexive reaction to an accumulation of technical violations,” which was the concern addressed in Austin.  We conclude that the district court’s determination that Doherty was a risk to public safety and needed confinement was not an abuse of discretion.

Affirmed.