A06-1225

State of Minnesota,

Respondent,

vs.

Rosedale Smith,

Appellant.

Filed January 30, 2007

Affirmed

Willis, Judge

Scott County District Court

File No. KX-03-05842

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

Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Justice Center JC340, 200 Fourth Avenue West, Shakopee, MN 55379-1380 (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 Willis, Presiding Judge; Peterson, Judge; and Wright, Judge.

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

WILLIS, Judge

Appellant challenges the revocation of his probation, arguing that the district court failed to make the required Austinfindings and abused its discretion by revoking his probation despite a mitigating factor and policies that favor probation. We affirm.

FACTS

In March 2003, appellant Rosedale Smith was charged with first-degree refusal to submit to chemical testing, in violation of Minn. Stat. § 169A.20, subd. 2 (2002); driving after cancellation, inimical to public safety, in violation of Minn. Stat. § 171.24, subd. 5 (2002); and exceeding the terms of a restricted license, in violation of Minn. Stat. § 171.09 (2002). Smith pleaded guilty to the charge of first-degree refusal to submit to chemical testing; the state agreed to dismiss the remaining charges and not to oppose a maximum sentence of 48 months’ imprisonment. Because of Smith’s criminal-history score, the district court imposed a 54-month sentence but stayed the sentence and placed Smith on probation for seven years. Among other conditions of Smith’s probation, the district court required that he “maintain [his] sobriety,” “submit to testing to show that [he was] not using alcohol,” and remain law-abiding.

In November 2004, Smith was charged with two violations of his probation: testing positive for alcohol and being convicted of fifth-degree domestic assault. At the revocation hearing, the district court noted that the consequences of failing to abide by the terms of his probation had been made “clear as a bell” to Smith, and the district court vacated the stay and executed the 54-month sentence.

Smith appealed his probation revocation to this court. Relying on State v. Modtland, 695 N.W.2d 602 (Minn. 2005), this court reversed and remanded on the ground that although Smith’s admissions that he consumed alcohol and failed to remain law-abiding were sufficient to establish the first Austin factor, the district court failed to make findings on the second and third Austin factors.

On March 28, 2006, the district court held a second probation-revocation hearing and made specific findings on each Austinfactor. On the first Austinfactor, the district court iterated its previous finding that Smith consumed alcohol and failed to remain law-abiding in violation of the terms of his probation. On the second factor, the district court found that Smith admitted that his consumption of alcohol and his failure to remain law-abiding were “intentional and inexcusable.” On the third Austinfactor, the district court found that the need for confinement outweighed the policies favoring probation because “[i]t would unduly depreciate the seriousness of the violation if probation were not revoked” after Smith consumed alcohol despite being specifically ordered not to do so. And noting that Smith had participated in chemical-dependency treatment while incarcerated, the district court found that Smith is “in need of correctional treatment which can most effectively be provided during confinement.” Finally, the district court found that it was “obvious” that confinement was necessary to protect the public, because, shortly after the district court placed Smith on probation, Smith committed fifth-degree domestic assault and consumed alcohol, both of which violated the terms of his probation. The district court again revoked Smith’s probation, and this appeal follows.

D E C I S I O N

Smith argues that the district court failed to make sufficient findings on the Austin factors. Generally, the district court has broad discretion when determining whether probation has been violated and will not be reversed absent an abuse of discretion. State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004). The district court’s findings of fact are accorded great weight and should not be overturned unless clearly erroneous. Minn. R. Civ. P. 52.01. But whether the district court made the findings necessary to revoke probation is a question of law, which this court reviews de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).

The Minnesota Supreme Court has required that district courts make certain findings before revoking a defendant’s probation: (1) the district court must designate the condition or conditions of probation that the defendant violated; (2) the district court must find that the defendant’s violation was intentional or inexcusable; and (3) the district court must weigh the defendant’s liberty interest against the state’s interest in the defendant’s rehabilitation and in protecting public safety, and determine whether the need for confinement outweighs the policies favoring probation. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). When making these findings, the district court must “seek to convey [the] substantive reasons for revocation and the evidence relied upon.” Modtland, 695 N.W.2d at 608.

Smith argues that the district court’s findings on remand are insufficient because the district court “essentially just mouthed . . . conclusionary language” and did not identify specific facts supporting its findings. In Smith’s first appeal, we determined that his admissions that he consumed alcohol and failed to remain law-abiding satisfied the first Austin factor. The second Austin factor requires a finding that Smith’s violation or violations were intentional or inexcusable. Austin, 295 N.W.2d at 250. Here, the district court again based its finding on Smith’s admissions that he consumed alcohol and failed to remain law-abiding in violation of the district court’s order, and found that Smith’s probation violations were “intentional and inexcusable.” We conclude that the district court’s finding is sufficient to satisfy the second Austin factor.

Under the third Austinfactor, the district court must balance the defendant’s liberty interest against the state’s interest in the defendant’s rehabilitation and in protecting public safety, and determine whether the need for confinement outweighs the policies favoring probation. Id.at 250-51. This finding cannot be a “reflexive reaction to an accumulation of technical violations” but must instead result from a showing that the defendant’s past behavior demonstrates that he cannot be relied on not to violate the conditions of his probation. Id. at 251 (quotation omitted). The district court must consider three policies: (1) whether confinement is necessary to protect the public; (2) whether the defendant needs correctional treatment that can best be provided in prison; and (3) whether not revoking probation would depreciate the seriousness of the defendant’s offense. Id. (citing ABA Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft 1970)). The record shows that the district court considered each of these policies and referred to specific evidence in reaching its decision. First, the district court found that confinement was necessary to protect public safety because Smith “admitted to an offense just after [the district court] sentenced him, and [Smith] drank.” Second, the district court found that Smith was in need of treatment that is best provided during confinement because he had “taken advantage of the chemical dependency treatment” that was available during his incarceration. Finally, the district court found that not revoking Smith’s probation would unduly depreciate the seriousness of the offense because of Smith’s extensive history of alcohol-related offenses and the seriousness of the current offense.

The district court’s decision to revoke Smith’s probation was not reflexive but was reflective of Smith’s criminal history and the facts that, after being placed on probation, he consumed alcohol and was convicted of fifth-degree domestic assault, both in violation of the terms of his probation. The district court made findings that more than adequately support its decision to revoke Smith’s probation.

Smith also argues that the district court abused its discretion when it revoked his probation despite the presence of a mitigating factor and despite Smith’s argument that the policies favoring probation outweigh those favoring confinement. First, Smith claims that the only reason that he consumed alcohol was to cause the execution of a sentence for a separate offense in Hennepin County; Smith argues that he “mistakenly thought the only way to do this was to violate the conditions of that probation.” But Smith’s argument does not explain Smith’s other probation violation: his conviction of fifth-degree domestic assault. Further, given Smith’s extensive history of alcohol-related offenses, his failure to abstain was not merely an insignificant, one-time, technical violation.

Second, Smith argues that the policies favoring probation outweigh the need for confinement, pointing to his successful completion of a chemical-dependency treatment program while incarcerated and his efforts to complete his GED. The Minnesota Supreme Court has counseled that the purpose of probation is rehabilitation and that “revocation should be used only as a last resort when treatment has failed.” Id. at 250. But one of the factors that the district court must consider is whether the defendant is in need of treatment that can be best provided while in confinement. Id. at 251; see also Modtland, 695 N.W.2d at 607. Here, the district court noted that Smith completed the treatment program while in jail and that he continued his chemical-dependency rehabilitation and work toward his GED while incarcerated on this probation violation. We conclude that the district court did not abuse its discretion by revoking Smith’s probation.

Affirmed.