A06-1212

State of Minnesota,

Respondent,

vs.

Levar Patterson,

Appellant.

Filed May 15, 2007

Affirmed

Worke, Judge

St. Louis County District Court

File No. K4-00-600405

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

Melanie S. Ford, St. Louis County Attorney, James T. Nephew, Assistant County Attorney, 100 North 5th Avenue West, Suite 501, Duluth, MN 55802 (for respondent)

John M. Stuart, State Public Defender, Andrea Barts, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Worke, Judge.

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

WORKE, Judge

On appeal from an order revoking his probation, appellant argues that the district court abused its discretion in revoking probation without making adequate findings and by failing to find that the need for confinement outweighed the policies favoring probation. We affirm.

D E C I S I O N

Appellant Levar Patterson argues that the district court abused its discretion by revoking his probation and executing his sentence. 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. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). The Minnesota Supreme Court has established a three-step analysis that must be applied before probation may be revoked. Id. at 250. “[W]hether a [district] court has made the findings required under Austin presents a question of law, which is subject to de novo review.” State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).

Under Austin, 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.” 295 N.W.2d at 250. This process insures that the district court’s decision is not “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.” Id.at 251 (quotations omitted).

Here, appellant was charged with three counts of possession with intent to sell cocaine and second-degree possession of cocaine. Appellant pleaded guilty to second-degree possession of cocaine. In October 2000, the district court sentenced appellant to the presumptive sentence of 48 months in prison, but departed dispositionally, staying execution of the sentence and placing appellant on probation for five years. Appellant was ordered to serve 18 months in jail; pay a fine and surcharges; and refrain from using alcohol and drugs, committing any related offenses, and having contact with gangs. Appellant was also required to: remain law abiding, report to his probation officer (P.O.), obtain permission from his P.O. before leaving the state, not change residence or employment without approval from his P.O., report any arrests, cooperate and be truthful, comply with additional requirements imposed by his P.O., submit to drug/alcohol testing, comply with institution/program rules, and pay fees as directed.

In 2002, appellant violated his probation by failing to report to his P.O., missing several probation appointments, and failing to pay his fine and court costs. The district court continued the stay of execution and ordered appellant to serve 30 days in jail or complete 30 days on the sentence-to-service program (STS). In March 2005, appellant’s P.O. recommended that the district court execute appellant’s sentence after appellant violated his probation by failing to keep probation appointments; failing to report address and employment changes; failing to serve 30 days in jail or complete STS; and failing to pay his fine and court costs. In April 2006, appellant appeared in court after he returned from Utah, where he had been living since March 2005. Appellant waived his right to a contested hearing and admitted that he violated his probation. The district court revoked appellant’s probation and executed his 48-month sentence.

First, Austin requires the district court to “designate the specific condition or conditions that were violated.” Id.at 250. The district court stated: “you violated your probation by failing to keep appointments with probation,” “failed to report any address or employment changes[,]” “failed to complete either your 30 days in jail as a probationary requirement or your sentence to service,” and “failed to pay the fine and court costs.” Second, Austin requires the district court to “find that the violation was intentional or inexcusable.” Id. The district court found that appellant knew what he was supposed to do and he did not do it and that “it was an intentional and inexcusable violation.” Third, in order to revoke probation, Austin requires the district court to “find that need for confinement outweighs the policies favoring probation.” Id. In considering this factor, the district court “must balance the probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and the public safety.” Modtland, 695 N.W.2d at 607 (quotation omitted). The district court must consider three policies: (1) whether confinement is necessary to protect the public; (2) whether the offender needs correctional treatment that can best be provided in prison; and (3) whether not revoking probation would depreciate the seriousness of the violation. Id.at 607.

The record shows that the district court considered this final Austin factor. The district court stated:

You have been given the opportunities and you have just failed to comply with the responsibilities. And I guess, somewhat reluctantly, I agree that it would be inappropriate to ignore the repeated violations here, particularly in mind of the break you were given on the front end if we did not revoke your probationary status and execute the underlying sentence.

While the district court did not consider whether confinement was necessary to protect the public, appellant’s violations were not the type of violations that would cause the district court to be concerned about the public. The district court considered that the need to confine appellant outweighed his interest in freedom; this was appellant’s second violation, and the district court could not ignore that appellant was not able to follow through with his probationary responsibilities. Additionally, the presumptive sentence was a 48-month commitment; appellant was given a break and he failed, on more than one occasion, to comply with the terms of his probation. The district court did not abuse its discretion in revoking appellant’s probation.

Affirmed.