STATE OF MINNESOTA

IN COURT OF APPEALS

A06-448

State of Minnesota,
Respondent,

vs.

Gene C. Ewers,
Appellant.

Filed October 3, 2006

Reversed

Minge, Judge

Wabasha County District Court

File No. K1-03-892

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

James C. Nordstrom, Wabasha County Attorney, Karrie S. Kelly, Assistant County Attorney, 625 Jefferson Avenue, Wabasha, MN 55981 (for respondent)

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

Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Minge, Judge.

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

MINGE, Judge

Appellant challenges the district court’s revocation of his probation. Because the finding and the record do not provide an adequate basis for the district court’s conclusion that the policies favoring continued probation for appellant are outweighed by the need for confinement, we reverse.

FACTS

Appellant Gene C. Ewers was charged with felony first-degree driving while impaired (DWI). Appellant pleaded guilty. On May 5, 2004, the district court sentenced appellant to a presumptive guidelines sentence of 48 months with execution stayed and placed him on probation for seven years with numerous conditions. On October 26, 2004, appellant’s Minnesota probation officer, Nicholas Francis, filed a probation-violation report, and, after appellant’s arrest, the district court held a contested hearing on December 15, 2004. The district court revoked appellant’s probation, and appellant filed an expedited appeal with this court, which reversed the probation revocation because the district court failed to make the requisite findings pursuant to State v. Austin, 295 N.W.2d 246 (Minn. 1980), and State v. Modtland, 695 N.W.2d 602 (Minn. 2005). State v. Ewers, No. A05-414 (Minn. App. Oct. 11, 2005) (order op.). On remand, the district court held a “continued” contested hearing and, after making the required findings, revoked appellant’s probation. Appellant challenges that determination.

At the outset of probation, appellant and Officer Francis discussed the possibility of transferring probation supervision to the state of Wisconsin, where appellant intended to reside with his mother. Francis prepared the necessary paperwork. Appellant testified that Francis told him that it may take three to four months for Wisconsin to decide whether to accept the transfer and that appellant should “just hang tight.” On August 11, 2004, the transfer request was filed with Wisconsin. This was the last time the probation office heard from appellant, even though a general condition of appellant’s probation was to maintain contact with probation authorities.

On September 22, 2004, Wisconsin denied the transfer because appellant’s whereabouts were unknown to probation authorities. Patrick Lynner, the Wisconsin probation officer who investigated appellant’s transfer request, testified that he unsuccessfully tried to contact appellant. Lynner testified that he called appellant’s mother’s home, which was his listed address, but that he was told that appellant had not been there for two weeks. According to Lynner, he left a message with appellant’s mother. The mother testified that Lynner never called her home, and appellant testified that he never received such a message. The record reflects that appellant’s mother was in ailing health and illiterate, which appellant contends may explain her failure to recall, write down, or communicate the alleged message. Appellant also testified that he stayed part of the time with his children, in a nearby town, and that this was why he was not at his mother’s house when Lynner called.

During this time, appellant was employed and had informed the probation office of the name of his employer. Lynner testified that he called appellant’s place of employment and left a message for appellant. Lynner indicated that he then waited approximately two weeks to hear from appellant before returning the transfer denial to Francis in Minnesota. Appellant acknowledged receiving a message at work and claimed to have called Lynner a couple of times and left messages on the probation office’s answering machine. However, Lynner testified that he neither heard from appellant nor received any message, and he also stated that, in the eight years he worked in the office, he never had any problems receiving messages from probationers.

Because appellant was subject to a medium supervision level, he was required to check in with his probation officer at least once a month. Francis filed a report stating that appellant violated his probation because appellant failed to contact either Wisconsin or Minnesota authorities between August 11 and October 26, 2004. Francis testified that he made no further attempts to contact appellant after he received the transfer denial from Wisconsin. An arrest warrant was issued, and appellant was arrested on December 5, 2004.

D E C I S I O N

The issue on appeal is whether appellant’s probation violation supports revocation. Probation violations must be proven by clear and convincing evidence. Minn. R. Crim. P. 27.04, subd. 3(3). 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.” State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).

The district court must make three specific determinations before it revokes probation: (1) that a specific condition of probation was violated; (2) that such violation was intentional or inexcusable; and (3) that the need for confinement outweighs the policies favoring probation. State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005) (quoting Austin, 295 N.W.2d at 250). The three-factor inquiry is not merely a procedural formality; “rather, courts must seek to convey their substantive reasons for revocation and the evidence relied upon.” Id. at 608.

As directed by this court, on remand the district court was required to make explicit findings on the second and third factors. Therefore, we begin with the premise that appellant in fact committed a violation of his probation and confine our review to considering whether the district court abused its discretion in its findings on the remaining factors. The second factor requires a determination that appellant intentionally or inexcusably violated the conditions of his probation. See id. at 606. The district court determined that appellant’s failure to contact probation officials between “August 11th of ‘04, when he met with Mr. Francis to prepare the interstate transfer papers, and December 5th of ‘04, when he was arrested” was an intentional failure by appellant to comply with the conditions of probation.

Here, there is a minimal factual dispute. The record indicates that attempts to contact appellant were complicated by the fact that he apparently had two residences: one with his mother and one with his children. Second, even when appellant was staying with his mother, his ability to receive messages was compromised by her ailing health and illiteracy. Third, appellant testified that he had returned calls to Lynner. Finally, based on Francis’s instruction to “hang tight,” appellant understood Francis’ supervision was informal while the transfer request was being processed. We also note that in addition to the stayed jail sentence, there were four special conditions of appellant’s probation agreement: pay a $50 fine; “[b]e law abiding and of good behavior in all respects;” “[n]o alcohol/illegal drug use,” enforced with random drug testing; and complete a chemical-dependency program. There were other general terms of probation including reporting as directed. There is no allegation that any violation occurred other than maintaining contact. We recognize that the duty to stay in contact with a probation officer is central to the concept of probation and appellant’s failure to maintain contact is serious and may be considered inexcusable. Also, we note factual differences between appellant’s account and that of Lynner about phone messages. The district court found that this violation was intentional and inexcusable. Given our deference to the district court’s factual determinations, we conclude that the district court did not abuse its discretion in concluding that appellant intentionally or inexcusably failed to comply with the terms of his probation.

The third factor requires the district court to determine whether the need for confinement outweighs policies favoring probation. Modtland, 695 N.W.2d at 606. In considering this factor, “we emphasize that . . . policy considerations may require that probation not be revoked even though the facts may allow it and that the purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed.” Id. (quotation omitted). 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.

Austin, 295 N.W.2d at 251 (quotation omitted).

Here, the violation of probation was a failure to keep in contact with probation authorities. Appellant pleaded guilty to felony first-degree DWI. Such a charge requires at least three prior DWI convictions. See Minn. Stat. §§ 169A.20, subd. 1, .24, subd. 1(1), 2 (2002). If appellant continued to drink and drive, he would clearly present a public safety concern. However, there was no evidence that appellant was driving a vehicle. Further, neither Francis nor Lynner testified that they were trying to schedule appellant for random drug or alcohol testing.

Appellant was working and was living with his mother and with his children. Although the district court noted that part of the purpose of the contact condition was to ensure that appellant remained sober, the record does not disclose why confinement of appellant is necessary to protect the public. There is no allegation of drinking, substance abuse, improper use of a vehicle, criminal conduct of any sort, or any other violation of probation. Also, appellant apparently served limited jail time and completed a chemical-dependency program. Other than his potential risk to society as an alcohol impaired driver, there is no evidence that appellant presents a risk to public safety. There is no claim that confinement was needed for added treatment. Finally, the district court does explain why failure to revoke probation will unduly depreciate the seriousness of the violation.

“[T]he 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.” Austin, 295 N.W.2d at 251 (quotation omitted). The record lacks evidence that appellant’s behavior meets this threshold. Based on a lack of findings why the need for confinement outweighs the policies favoring probation, we conclude that the district court abused its discretion in revoking appellant’s probation.

Reversed.