STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1029

State of Minnesota,
Respondent,

vs.

Glen A. Huber,
Appellant.

Filed April 17, 2007

Affirmed

Minge, Judge

Anoka County District Court

File No. K6-03-9851

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

Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for respondent)

John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

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

MINGE, Judge

Appellant challenges a district court order revoking his probation. Appellant argues that the district court’s finding that the need for confinement outweighs policies favoring probation is not supported by sufficient evidence. Because we conclude that the district court’s finding is supported by sufficient evidence, we affirm.

FACTS

Appellant Glen Huber was charged with: count 1, first-degree driving while impaired in violation of Minn. Stat. § 169A.20, subds. 1(1), 3 (2002); count 2, first-degree driving while impaired (test refusal) in violation of Minn. Stat. § 169A.20, subd. 2 (2002); and count 3, driving after cancellation in violation of Minn. Stat. § 171.24, subd. 5 (2002). Subsequently, appellant pleaded guilty to count two, and the two remaining counts were dropped. At sentencing, appellant received the 42-month presumptive sentence. The district court stayed execution of the sentence and placed appellant on probation under the conditions that appellant: (1) serve one year in jail; (2) pay a $700 fine and related fees; (3) complete aftercare programming as recommended by Anoka County Community Corrections Department (Corrections); (4) submit to drug testing at his own expense; (5) refrain from using mood-altering chemicals or alcohol; (6) complete Project Save; (7) complete cognitive programming as directed; (8) remain law-abiding and of good behavior; and (9) obey rules of probation.

On October 26, 2004, Corrections filed a felony-probation-violation report recommending that the district court hold a probation-violation hearing and vacate appellant’s stay of execution. According to the report, appellant tested positive for methamphetamine on April 11, 2004, while serving his one-year workhouse sentence, and again on July 13, 2004. Appellant also failed to remain law-abiding. On October 7, 2004, appellant was arrested for driving after cancellation of his license. Additionally, appellant did not maintain contact with his probation officer and failed to provide requested urinalysis samples. Finally, appellant did not complete chemical-dependency treatment in accordance with the plea agreement. Pursuant to Corrections’ recommendation, appellant was ordered to appear in court on December 8, 2004, for a probation-violation hearing. Appellant failed to do so. Consequently, a warrant was issued for appellant’s arrest. On April 27, 2005, appellant was arrested in Wisconsin. Ultimately, he appeared before the Minnesota district court. At the hearing, appellant admitted violating the conditions of his probation. The court revoked appellant’s probation and executed his prior sentence.

Appellant appealed to this court. Relying on State v. Modtland, 695 N.W.2d 602 (Minn. 2005), we reversed and remanded the district court’s revocation of appellant’s probation because the district court did not make a finding that the need for confinement outweighs policies favoring probation, as required under State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). State v. Huber, No. A05-1485 (Minn. App. Oct. 11, 2005) (order op.). On March 3, 2006, following remand, the district court held a hearing and made further findings of fact. The district court again revoked appellant’s probation and ordered execution of his sentence. This appeal follows.

D E C I S I O N

The 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) (quoting State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980)) (quotation marks omitted).

Before revoking probation, Minnesota courts must engage in a three-step analysis. Austin, 295 N.W.2d at 250. “[T]he court 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. This appeal concerns only the third Austin requirement. Appellant concedes that the first two requirements were satisfied. In State v. Modtland, the Minnesota Supreme Court reaffirmed Austin’s core holding and emphasized that in making the third Austin finding, “district courts must bear in mind that policy considerations may require that probation not be revoked even though the facts may allow it . . . .” 695 N.W.2d at 606 (quotation omitted). When determining whether revocation is proper, “courts must balance the probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and the public safety . . . .” Id. at 606-07 (quotation omitted). The district court’s revocation decision should not 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 (quotations omitted).

Appellant’s sole argument on appeal is that, even though the district court made the required finding under the third Austin step, the district court abused its discretion in revoking probation because the evidence does not establish that the need for confinement outweighs the policies favoring probation.

Here, the district court found that “the need for confinement clearly outweighs the policies favoring probation . . . .” The district court’s finding is amply supported in the record. The court based its finding on appellant’s ten prior DWI’s, appellant’s failure to successfully complete chemical-dependency treatment, appellant’s failure to remain drug-free during his probationary period, and appellant’s thorough disregard of his probationary status. Moreover, the court explicitly found appellant unamenable to treatment. All of these facts are supported by the record.

While appellant offered multiple explanations for his probation violations, those violations are undisputed and, considering appellant’s extensive DWI history, appellant’s violations are not minor or technical. Moreover, the district court did not credit appellant’s explanations. The district court’s finding was not reflexive, but grounded on appellant’s criminal history and probationary conduct. The district court’s substantive reasons for revocation under the third Austin factor express its determination that confinement is necessary to protect the public from further criminal activity and that appellant is in need of treatment that can best be provided while appellant is confined. Because the district court explicitly found that the need for confinement outweighed policies favoring probation and because that finding is supported by sufficient evidence, we affirm.

Affirmed.

Dated: