A06-146

State of Minnesota,

Respondent,

vs.

Joshua Ryan Patrow,

Appellant.

Filed November 28, 2006

Reversed and remanded

Ross, Judge

St. Louis County District Court

File No. K7-00-10155

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

Alan Mitchell, St. Louis County Attorney, Gordon P. Coldagelli, Assistant County Attorney, 300 South Fifth Avenue, Virginia, MN 55792 (for respondent)

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

Considered and decided by Ross, Presiding Judge; Dietzen, Judge; and Crippen, Judge.*

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

ROSS, Judge

Appellant Joshua Patrow challenges the district court’s order revoking his probation and executing his 86-month sentence of imprisonment for a first-degree controlled substance crime. Patrow argues that the district court revoked his probation without making the findings required by State v. Austin, 295 N.W.2d 246 (Minn. 1980). Because the district court failed to make the requisite Austin findings, we reverse and remand for additional findings.

F A C T S

Joshua Patrow pleaded guilty in June 2001 to drug-related charges. The district court honored the parties’ plea agreement and imposed a sentence of 33 months’ incarceration for fourth-degree controlled-substance crime, followed consecutively by 86 months of stayed incarceration for first-degree controlled-substance crime. Patrow was released to probation in November 2004 after serving 29 months of the 33-month sentence. Patrow’s probation conditions required him to remain law-abiding, abstain from alcohol and illegal drugs, and comply with any other conditions established by probation.

Patrow never reported to probation. His probation officer wrote to him regarding the failure to report. Patrow responded by leaving the officer a message five days later, saying that he was in the Twin Cities area seeking employment. The officer replied by leaving Patrow a message ordering him to call back to reschedule the required meeting. Patrow did not call again.

In addition to failing to report to the probation department, Patrow incurred another drug charge. On December 22, the probation officer reported to the district court that Patrow violated the conditions of his probation by failing to report and by incurring the new controlled-substance charge since being released from prison. The report recommended that the court revoke Patrow’s probation and execute the 86-month stayed sentence of incarceration.

Patrow appeared before the district court in May 2005 for arraignment on a driving charge. The district court used this opportunity to address the then five-month-old alleged probation violations. Although Patrow did not admit the pending drug offense, he admitted that he failed to report to the probation department. The district court therefore found that Patrow had violated the conditions of his probation and scheduled a disposition hearing regarding the violation for August 15, 2005.

In July 2005, before Patrow’s hearing, he had another encounter with law enforcement, and the state charged him with driving with a suspended license. At the scheduled August 15 probation hearing, Patrow pleaded guilty to the driving charge, but he asked for a continuance to September 19 for disposition of the probation violation. The court granted the request. When Patrow appeared in September, the court ordered a presentence investigation and scheduled sentencing for the violation for October.

At the October hearing, Patrow contested the probation department’s recommendation that the court execute the stayed portion of his sentence. He contended that he played only a “very minor” role in his post-release drug offense, that he has been a law-abiding citizen, and that he is not a candidate for prison. The district court continued the matter for two weeks to obtain relevant information regarding any credit Patrow may be entitled to for time served.

Before the rescheduled hearing, however, Patrow was again stopped while driving and charged with driving after suspension and without proof of insurance. Two days after this latest charge Patrow and his probation officer had a meeting in which he allegedly had drug paraphernalia in his possession and admitted to the officer that he had used methamphetamine.

The disposition hearing on Patrow’s probation violation finally occurred on October 17, 2005. Patrow contended that he had remained “relatively clean” since his release from prison. But the state noted that Patrow had pleaded guilty to the post-release drug charge, and it urged the court to execute Patrow’s stayed sentence. The district court highlighted Patrow’s December 2004 “offense” and told him, “[N]ow a week before you are to appear here for sentencing, it’s alleged that you had in possession drug paraphernalia, and that you have admitted using methamphetamine.” The district court revoked Patrow’s probation and executed his 86-month prison sentence. This appeal follows.

D E C I S I O N

I

Patrow argues that the district court abused its discretion because it failed to make proper findings before revoking his probation. We agree. A district court has broad discretion to determine if there is sufficient evidence to revoke probation and we reverse only if the district court clearly abused its discretion. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005). But before revoking probation, the district court must designate the specific condition that the probationer violated, find that the violation was intentional or inexcusable, and find that the probationer’s need for confinement outweighs the policies favoring continued probation. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). The district court’s discretion does not extend to allow it the option of not making these three specific findings on the record before it revokes probation. Modtland, 695 N.W.2d at 605. Whether the district court has made the required Austin findings presents a question of law, which is subject to de novo review. Id.

The district court made only one of the three findings required by Austin and Modtland, and that finding is somewhat confusing. At the disposition hearing, the district court cited Patrow’s “offense in December,” but it did not state whether it was referring to Patrow’s failure to report or his alleged possession of a controlled substance. The district court also referred to Patrow’s alleged possession of drug paraphernalia in October 2005 and his admission to his probation officer that he had been using methamphetamine. But it did not indicate whether the new allegations were sustained or whether they support revocation. Of these various alleged potential violations, Patrow’s only admission in district court was in May 2005, when he admitted to failing to report to his probation officer. Although it is unclear whether the district court intends to include only one, some combination, or all of the alleged offenses as support for the revocation, it expressly found only Patrow’s failure to report to be a probation violation based on Patrow’s admission. That finding is sufficient for us to conclude that the district court designated a specific, violated condition, as Austin requires. On remand, if the district court intends to include other alleged offenses as bases for support of revocation, it must specifically designate each offense on the record along with the probation condition that it violates.

The district court made no findings that address the second and third Austin factors. It did not find whether Patrow’s violation was intentional or inexcusable, and it did not determine whether the state’s need for Patrow’s confinement outweighs the policies that might favor continuing his probation. We reject the state’s argument that the district court’s failure to use Austin’s “magic words” before revoking Patrow’s probation is excusable because “[i]t is abundantly clear that the record in this matter affirmatively meets all three of the Austin factors.” The supreme court foreclosed this “sufficient evidence exception” in Modtland, holding that district courts must “create thorough, fact-specific records setting forth their reasons for revoking probation.” Id. at 606-08. Although the record suggests that Patrow’s frequent contacts with police may have created a difficult, moving target as the court tried to reach a disposition regarding the alleged probation violation, due process requires that it articulate the bases specifically.

Patrow argues that he is entitled to be reinstated to probation as the remedy for the district court’s failure to make the required findings. We disagree and remand for additional findings. See id. at 608 (reversing and remanding for new hearing because district court did not address either the second or third Austin factor before revoking probation); Erickson v. State, 702 N.W.2d 892, 898 (Minn. App. 2005) (reversing and remanding when record failed to indicate factors district court relied on when revoking probation).

Because we conclude that the district court’s failure to make the necessary Austin findings requires reversal and remand for additional findings, we do not address the issues Patrow raises in his pro se supplemental brief.

Reversed and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.