This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-796

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jeffrey Kortkamp,

Appellant.

 

 

Filed ­­­April 17, 2007

Affirmed

Dietzen, Judge

 

Lyon County District Court

File No. KX-03-554

 

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

 

Richard R. Maes, Lyon County Attorney, 607 West Main Street, Marshall, MN 56258 (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 Hudson, Presiding Judge; Dietzen, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the district court’s order revoking his probation and executing his sentence for conspiracy to commit a first-degree controlled substance offense, arguing that the district court failed to make the Austin findings as required by State v. Modtland.  Because we conclude that the district court made the required Austinfindings, we affirm.

FACTS

            In March 2004, appellant Jeffrey Kortkamp pleaded guilty to conspiracy to commit first-degree controlled substance crimes and received a stayed sentence with probation.  In November 2004, appellant’s probation officer filed a report asserting that appellant had violated his probation.  Appellant admitted the violations, and following the hearing, the district court ordered out-patient treatment as an additional probation condition.  In 2005, appellant received two more violation reports, one of which was later withdrawn, involving his failure to complete the drug treatment that was a condition of his probation.  When appellant failed to appear at the hearing regarding his probation violation, the district court ordered him to serve 90 days in jail and reinstated probation.

            In December 2005, appellant’s probation officer filed another violation report.  At the hearing, which was held on January 20, 2006, appellant admitted, with explanation, the violation of his probation conditions.  The district court stated that appellant had done “very little” to show compliance with the rules of his probation and ordered that his probation be revoked and his sentence executed.   

            Appellant filed a motion to reopen, arguing that he was “under the misimpression that he would be reinstated on probation” if he admitted the violations, that he was “under-represented” at the hearing, and that he wished to present additional information to the court.  The district court stayed execution of appellant’s sentence and agreed to hear his motion.  Following a hearing, the district court denied appellant’s motion to reopen in March 2006 and concluded that “there is not an appropriate basis to allow [appellant] to withdraw his admission to the probation violations;” appellant’s “conduct in violating the terms and conditions of his probation was intentional or inexcusable;” and “the need for confinement outweighs the policies favoring probation.”  This appeal is taken from the district court’s January and March orders.

D E C I S I O N

Appellant argues that the district court abused its discretion by revoking his probation in January without making findings on the three factors required by State v. Austin, 295 N.W.2d 246, 250-51 (Minn. 1980), and that the district court’s subsequent findings in its March order may not be considered.  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. Modtland, 695 N.W.2d 602, 605 (Minn. 2005) (quotation omitted).  Whether a district court has made the findings required under Austin presents a question of law, which is subject to de novo review.  Id. 

  The Minnesota Supreme Court has established a three-step analysis that must be applied before probation may be revoked.  Austin, 295 N.W.2d at 250.  Before the district court may revoke probation 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.”  Id.  The supreme court reaffirmed this requirement in 2005 and noted that “[t]his process prevents courts from reflexively revoking probation when it is established that a defendant has violated a condition of probation.”  Modtland, 695 N.W.2d at 608.

Appellant argues that our review is limited to the January order and that the subsequent hearing and resulting March order is not properly before us.  The crux of appellant’s argument is that State v. Modtland prohibits a district court from conducting a second hearing to reconsider probation revocation.  We disagree. 

In Modtland, the district court revoked appellant’s probation solely on the basis of his admission of violations and it then proceeded to a “resentencing phase.”  Modtland, 695 N.W.2d at 604.  Our supreme court, in affirming Austin’s core holdings, held that “Austin contemplates an evidentiary hearing in which the district court makes the requisite three findings before deciding whether to revoke the defendant’s probation.”  Id. at 607 (emphasis in original). 

Here, the district court, in response to appellant’s motion to reopen, conducted a second evidentiary hearing, made the requisite Austin findings, and then affirmed its earlier decision to revoke his probation.  In doing so, the district court’s March order satisfied the purpose of the Modtland requirement that an evidentiary hearing be conducted before the probation decision is made.  We do not read Modtland to prohibit a district court from addressing the Austin factors in a subsequent order when the defendant requests that the hearing be reopened. 

Appellant further argues that this matter must be remanded for the district court to properly consider the Austinfactors.  But a remand to remedy deficiencies in the January order is moot because the district court remedied its failure to make the required Austinfindings.  See, e.g., In re Welfare of M.A.C., 455 N.W.2d 494, 499 (Minn. App. 1990) (declining to reverse for failure to make findings where additional findings “would serve no purpose at this point in the proceeding”); King v. King, 368 N.W.2d 317, 319 (Minn. App. 1985) (affirming implied award of unvalued pension where remand for more specific findings would be a “pointless act”).

We turn then to whether the district court’s March order satisfied the requirements of Austin.  First, Austin requires the district court to “designate the specific condition or conditions that were violated.”  Austin, 295 N.W.2d at 250.  Here, the court clearly designated appellant’s alleged probation violations.  Appellant admitted the violations at his January probation hearing, and the district court denied appellant’s request to withdraw his admissions.  Appellant does not challenge this determination.

            Second, Austin requires the district court to “find that the violation was intentional or inexcusable.”  Id.  The district court found that appellant’s “conduct in violating the terms and conditions of his probation was intentional or inexcusable.”  Appellant argues that his failure to maintain contact with probation was excusable because there was “some slippage between the two counties’ probation authorities” when he moved from Lyon County to Ramsey County and “confusion” over letters that were sent to his parents’ address.  But the district court found, and the record shows, that appellant knew that Ramsey County sent him two letters at his parents’ address and that he failed to respond.  Further, it is a probationer’s responsibility to stay in contact with probation and not the other way around. 

Appellant argues that his failure to obtain a chemical-use assessment was not intentional or inexcusable, and that he was involved in the Teen Challenge program to assess and treat his chemical-dependency issues.  But appellant had previously been terminated from drug-treatment programs on several occasions for admitted drug use, “lack of progress,” and a lack of amenability to treatment.  This pattern supports a finding that the violations are intentional or inexcusable.  See In re Welfare of J.K.,641 N.W.2d 617, 621 (Minn. App. 2002) (finding sufficient evidence to support finding that probation violations are intentional or inexcusable where probationer “deliberately and repeatedly refused to comply with probation requirements or take advantage of treatment opportunities”). 

Appellant also argues that his failure to pay the fines and restitution was unintentional or excusable because he was only able to work for short periods of time.  But even if the failure to pay fines was excusable due to the short time he was able to work, the other violations provide a sufficient basis to revoke his probation and execute his stayed sentence.

            Third, in order to revoke probation, Austin requires the district court to “find that need for confinement outweighs the policies favoring probation.”  Austin, 295 N.W.2d at 250.  District courts should consider whether:

(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.

 

Modtland, 695 N.W.2d at 607 (quoting Austin, 295 N.W.2d at 251).  “The purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed.”  Austin, 295 N.W.2d at 250. 

Here, the district court found that “confinement of [appellant] is necessary to protect the public from further criminal activity.”  The district court made detailed findings on appellant’s pattern of probation violations and the seriousness of his convictions, and it ultimately found that his “conduct in this matter has demonstrated that he is not currently amenable to probation.”  The district court’s findings are factually supported by the record.

Appellant nonetheless argues that confinement is not required because he had not committed any new crimes or endangered public safety and because he was admitted to a new drug-treatment program.  But the evidence shows that he had been terminated from two drug-treatment programs for drug use, lack of progress, and not being amenable to treatment, which demonstrates that the goal of probation—rehabilitation—was not being met and that revocation is appropriate.  Therefore, the record supports the district court’s finding that the need for confinement outweighs policies favoring probation.

            Affirmed.