This opinion will be unpublished and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

A06-463

 

State of Minnesota,

Respondent,

 

vs.

 

Adam Timothy Blake,

Appellant.

 

Filed January 9, 2007

Affirmed

Kalitowski, Judge

Concurring specially, Harten, Judge*

 

Morrison County District Court

File No. K6-04-140

 

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

 

Conrad I. Freeberg, Morrison County Attorney, Morrison County Government Center, 213 First Avenue Southeast, Little Falls, MN 56345 (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 Lansing, Presiding Judge; Kalitowski, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Adam Timothy Blake challenges revocation of his probation, arguing that the district court failed to properly address the Austin/Modtland factors.  We affirm.

D E C I S I O N

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

            A district court must consider three factors on the record before revoking probation.  Id. at 607.  Specifically, it 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.”  Austin, 295 N.W.2d at 250.  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. 

            After Austin but before Modtland, the court of appeals upheld probation revocation decisions so long as the record provided sufficient evidence to support the district court’s decision.  Modtland, 695 N.W.2d at 606.  Modtland announced that this “sufficient evidence exception” was a “misreading of Austin” and that:

[t]he requirement that courts make findings under the Austin factors assures that district court judges will create thorough, fact-specific records setting forth their reasons for revoking probation. . . . [I]n 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. 

 

Id. at 608; see also Minn. R. Crim. P. 27.04, subd. 3(4).  Thus, “[district] courts should not assume that they have satisfied Austin by reciting the three factors and offering general, non-specific reasons for revocation, as it is not the role of appellate courts to scour the record to determine if sufficient evidence exists to support the district court’s revocation.”  Modtland, 695 N.W.2d at 608.  The “written findings” requirement is satisfied by the district court’s on-record statements.  Id. at n.4. 

            Although the district court did not explicitly enumerate each Austin factor on the record, it did address all three.  First, the district court stated that appellant had failed to make restitution, failed to address his alcohol issues, and failed to remain law abiding.  Appellant had violated his probation conditions twice before and been returned to probation each time.  Although the first violation appears to be technical, the second violation involved criminal activity as well as continuing technical violations.  Here, appellant had engaged in further criminal activity and had failed to satisfy any of his probation terms. 

            Second, the violations were intentional and inexcusable.  And this probation violation was not the first; indeed, it was the third.  Even though a Career Corrections Officer recommended probation revocation following an earlier violation, the district court allowed appellant to remain on probation, giving him another chance to conform his behavior to the law.  Although appellant offered mitigating reasons as to why he had failed to pay restitution or fulfill other probation conditions requiring payments, appellant admitted there were no mitigating factors weighing against his failure to remain law abiding. 

            Third, the district court addressed whether appellant should be incarcerated by stating that “[t]he Court’s Orders would have little meaning if we’re not prepared to take action when the conditions are violated and the requirements of the Court Order are largely ignored.”  Furthermore, the district court also noted that appellant failed to remain law abiding.  Appellant’s continued criminal behavior and disregard of the seriousness of his probationary status satisfy two of the three elements listed in Austin for this factor.

            Although we would prefer that district courts address each Austin/Modtland factor more clearly, our de novo review reveals that the district court made sufficient findings.  Accordingly, we conclude that the district court did not clearly abuse its discretion in revoking appellant’s probation. 

            Affirmed.

HARTEN, Judge (concurring specially)

            The instant case constitutes a rare and limited exception to the Modtland rule.  The evidence detailed by the district court fulfilled the Austin requirements except as to form.  A remand to the district court would serve no practical purpose.  I concur with the court’s opinion in all respects.