STATE OF MINNESOTA

IN COURT OF APPEALS

A06-296

In the Matter of the Welfare of:

C.R.W.

Filed September 12, 2006

Affirmed

Ross, Judge

Hennepin County District Court

File Nos.: 204707/J1-01-066059

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

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

Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401-2700 (for appellant)

Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.

U N P U B I S H E D O P I N I O N

ROSS, Judge

In this appeal from an order revoking appellant C.R.W.’s probation and executing his stayed sentence, C.R.W. argues that the revocation order should be reversed because the district court failed to make adequate supporting findings. He also argues that the district court abused its discretion by revoking probation based on (1) technical violations, (2) conduct that had been addressed at a previous revocation hearing, and (3) conduct that was not included in the probation-violation notice. Because we find no abuse of discretion, we affirm.

FACTS

In September 2001, Minneapolis police officers responded to a reported shooting and found a victim lying on the ground and suffering from a gunshot that entered his chest and exited his back. The record suggests that this shooting arose from an argument about a prior shooting. The state charged juvenile C.R.W. by delinquency petition with attempted first-degree murder and second-degree assault. The state amended the petition to include additional charges of second-degree murder and first-degree assault. C.R.W. and the state agreed to proceed with an extended juvenile jurisdiction (EJJ) designation. C.R.W. pleaded guilty to attempted second-degree murder in January 2002, and the district court dismissed the other charges. The court imposed a stayed sentence of 153 months’ incarceration and placed C.R.W. on probation to continue until his twenty-first birthday. It ordered him to participate in and complete a youth-rehabilitation program, to remain law abiding, to have no contact with the victim, and to follow the conditions of his probation.

C.R.W. had difficulties satisfying the conditions of his probation. First, the district court removed C.R.W. from the rehabilitation program because he had failed to make adequate progress. The court transferred him to a program at the correctional facility in Red Wing. He completed that program the following year. Then in August 2004, the state charged C.R.W. with a controlled-substance crime. At the consequent probation-revocation hearing, C.R.W. admitted that he violated the terms of his probation by using controlled substances and by accumulating new criminal charges. Rather than revoke his probation, the district court continued C.R.W.’s probation and ordered him to complete a chemical-dependency program while serving six months at a Hennepin County workhouse.

C.R.W.’s difficulties continued when he was released from the workhouse to a group home in January 2005. During that placement, in what C.R.W. believes was retaliation for the shooting that he pleaded guilty to, an assailant shot C.R.W. He was discharged to his mother’s custody for his safety in April 2005. On July 6, 2005, police arrested C.R.W. for making terroristic threats and being a felon in possession of a weapon. He was not charged with a crime, but the victim obtained an order for protection. C.R.W. tested positive for marijuana use on July 20 and August 12, 2005, and police soon arrested him for violating the order for protection.

The district court issued a warrant to apprehend and detain C.R.W. based on several alleged probation violations. When C.R.W.’s probation officer notified him of the warrant, he promised to turn himself in. But C.R.W. ceased contact with his probation officer for more than a month. In September 2005, authorities took him into custody for violating the order for protection and for possessing a controlled substance. C.R.W. pleaded guilty to violating the protection order.

The district court revoked C.R.W.’s probation after a probation-revocation hearing in November 2005. It executed the stayed 153-month sentence for attempted second-degree murder. The district court credited C.R.W. with 655 days for time spent at various correctional and detention facilities. This appeal of C.R.W.’s probation revocation follows.

D E C I S I O N

C.R.W. challenges the district court’s decision to revoke his probation. The district court has broad discretion when determining whether sufficient evidence exists to revoke probation and execute a sentence, and we will not reverse absent a clear abuse of that discretion. State v. Austin, 295 N.W.2d 246, 249–50 (Minn. 1980). In Austin, the Minnesota Supreme Court adopted a three-step analysis that the district court must use to determine whether revocation of probation is proper. Id. at 250. To revoke probation and execute a sentence, 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 the need for confinement outweighs the policies favoring probation. Id. The supreme court later held that courts must also apply this analysis in the EJJ context. State v. B.Y., 659 N.W.2d 763, 768–69 (Minn. 2003). A violation supporting revocation of EJJ probation must be proven by clear and convincing evidence. Minn. R. Juv. Delinq. P. 19.11, subd. 3(C)(1).

C.R.W. first asserts that the district court failed to make sufficient findings on the Austin factors. He argues that because the district court did not designate which conditions of probation he violated, it failed to properly apply the first Austinfactor. But C.R.W.’s challenge is unfounded. The district court concluded that he failed to remain law abiding and failed to maintain contact with his probation officer, and the court expressly referenced the first Austin factor. The district court made various findings supporting its conclusion that C.R.W. violated these conditions.

The district court also made findings regarding the second Austin factor, which addresses whether the probation violation is intentional or inexcusable. The court found that C.R.W. knew that he had to remain law abiding and that he admitted to committing two criminal offenses. The district court found that his continuing criminal conduct was inexcusable. The court also found that C.R.W. intentionally used marijuana and inexcusably ceased contact with his probation officer for more than a month. The district court’s clear explanation and conclusion satisfy Austin’s second factor.

Finally, the district court found that “the need for [C.R.W.]’s confinement outweighs the policies favoring probation.” The district court noted that C.R.W. “has been offered numerous EJJ probation services and yet he continues to re-offend.” The court reasoned that he “has consistently and repeatedly violated the terms of his EJJ probation,” demonstrating that “he is not amenable to probation.” The court also found no mitigating factors relating to C.R.W.’s probation violations. It made findings regarding the services that C.R.W. has received and C.R.W.’s progress in those programs. The district court ultimately found that C.R.W.’s repeated probation violations have “exhausted the resources available to him under juvenile jurisdiction” and that revocation of probation was required to ensure public safety.

It is clear to us that the district court made considered findings on all three Austinfactors. These findings have sufficient support in the record, and they confirm its conclusion decision to revoke C.R.W.’s probation. The district court’s Austin analysis does not support C.R.W.’s assertion that the court abused its discretion by revoking C.R.W.’s stayed disposition and executing his sentence.

C.R.W. also argues that his probation violations are technical violations that do not warrant revocation. C.R.W. misunderstands what is a “technical violation.” “[A]n accumulation of technical violations” should not be the basis for probation revocation. B.Y., 659 N.W.2d at 772 (quotation omitted). Rather, to support revocation, the violations must demonstrate that the offender “cannot be counted on to avoid antisocial behavior.” Id. (quotation omitted). In B.Y., the offending behavior—a single 20-minute violation of a 9:00 p.m. curfew—was not the commission of a new crime, was not a violation of a condition imposed by the district court, and, according to the supreme court, could not alone justify automatic incarceration and the execution of a 108-month sentence. Id. at 766, 770. In contrast, the supreme court affirmed revocation of Austin’s probation. The Austin court first adopted the federal courts’ language criticizing revocation decisions that are occasioned by mere reflexive reaction to a probationer’s technical violations. Austin, 295 N.W.2d at 250-51. But the Austin court nonetheless affirmed a probation revocation when the infraction was failing to obey a probation officer’s instruction to attend a specific residential treatment program. Id. at 251-52.

Although the supreme court has not defined “technical violation” since borrowing the term in 1980, treatment by the federal court informs our conclusion that C.R.W.’s infractions are not the sort of inconsequential technicalities that the Austin court was referring to. Federal courts have noted the importance of considering whether an offender’s chances of becoming a “useful citizen” are increased by remaining on probation and whether the offender’s behavior indicates a “pervasive unwillingness” to complete a rehabilitation program. See United States v. Burkhalter, 588 F.2d 604, 607 (8th Cir. 1978) (affirming a probation revocation and noting that although the offender’s “violations are not particularly serious in terms of their danger to society, his behavior indicates a pervasive unwillingness to follow the rehabilitation program”); United States v. Reed, 573 F.2d 1020, 1024–25 (8th Cir. 1978) (remanding a probation revocation, noting that the district court may wish to reevaluate the offender’s chances of becoming a “useful citizen”). For example, the U.S. Supreme Court has observed that “a minor traffic violation, or other technical probation violation, may well not rationally justify a conclusion that the probationer is no longer a good rehabilitative risk.” Black v. Romano, 471 U.S. 606, 622, 105 S. Ct. 2254, 2263 (1985). We conclude that a “technical violation” is not a fourth factor in the Austin analysis. Rather, it is simply a probation violation that alone does not demonstrate that an offender cannot be counted on to avoid antisocial activity.

C.R.W.’s violations were not “technical,” they were substantive and serious. While on probation, he was arrested on multiple occasions and pleaded guilty to crimes. He also tested positive for and admitted to several instances of using illegal drugs. This new criminal conduct violated the district court’s order that C.R.W. remain law abiding. C.R.W. also broke contact with his probation officer for more than a month, which also violated the court’s order. Instead of amounting to technical violations, as C.R.W. contends, this conduct demonstrates C.R.W.’s inability to remain law abiding and to avoid antisocial behavior. The district court did not revoke C.R.W.’s probation for technical violations.

C.R.W. also argues that the district court’s decision to revoke his probation was based in part on conduct not included in the notice of revocation. He is mistaken. Both the state and federal constitutions require that an offender be given notice of the alleged grounds for revocation before revoking probation. Austin, 295 N.W.2d at 252 (citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1759 (1973)). The district court’s findings include an admission to shoplifting charges, C.R.W.’s failure to report these charges to his probation officer, C.R.W.’s cessation of contact with his probation officer, and C.R.W.’s arrest and guilty plea for violating an order for protection. C.R.W. bases his argument on the limited language in the apprehension-and-detention warrant, which mentions only C.R.W.’s failed drug tests and his arrests for making terroristic threats, being a felon in possession of a weapon, and violating a protection order. But the Notification of Violation Hearing includes all of the violations noted by the district court. C.R.W.’s argument of his lack of notice has no factual merit.

C.R.W. contends finally that the district court abused its discretion by considering conduct that the district court addressed in a prior revocation hearing. The district court found that C.R.W. was arrested for a controlled-substance crime in August 2004. This violation prompted C.R.W.’s first probation-revocation hearing, after which the district court decided not to revoke probation and ordered C.R.W. to complete a six-month term at the Hennepin County workhouse.

Although it appears that the district court considered C.R.W.’s 2004 controlled-substance violation in its conclusion that C.R.W. is not amenable to probation, this violation was not the basis for the 2005 probation revocation. This alone defeats C.R.W.’s argument. Additionally, C.R.W. cites no authority for the proposition that prior probation violations cannot be considered when determining whether probation should be revoked in a subsequent probation-revocation hearing. And revocation of probation is justified when an offender “persists in violating” the terms of probation “despite prior use of expanded and more onerous conditions of a stayed sentence.” State v. Hamilton, 646 N.W.2d 915, 918 (Minn. App. 2002) (quotation omitted), review denied (Minn. Sept. 25, 2002), abrogated on other grounds byState v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005). C.R.W.’s failure to follow the district court’s multiple orders to remain law abiding indicates that he is not rehabilitating and that probation is not working. See State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995) (noting that failure to follow a district court’s order despite repeated warnings indicates that probation is not succeeding), review denied (Minn. July 20, 1995), abrogated on other grounds byModtland, 695 N.W.2d at 606. In that context, C.R.W.’s prior probation violation is relevant and lends additional support for revocating probation. The district court did not abuse its discretion by considering it.

Affirmed.