This opinion will be unpublished and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

A06-1960

 

State of Minnesota,
Respondent,

vs.

Greg A. Wallin,
Appellant.

 

Filed August 21, 2007

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. 02040484

 

 

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

 

Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (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 Wright, Presiding Judge; Minge, Judge; and Worke, Judge.

 

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant challenges the district court’s revocation of his probation, arguing that the district court failed to make adequate findings under the third Austin factor and that the district court abused its discretion in concluding that the need for confinement outweighed policies favoring probation.  Because we conclude that the district court made adequate findings and did not abuse its discretion, we affirm.   

FACTS

 

            After police discovered child pornography on appellant Greg Wallin’s computer hard drive, appellant pleaded guilty to possession of pornographic work involving a minor, in violation of Minn. Stat. § 617.247, subd. 4(a) (2002).  The district court stayed imposition of appellant’s sentence and placed him on probation for five years, subject to various conditions.  Pursuant to these conditions, appellant was required to: (1) “serve 90 days in the workhouse [or] . . . on electronic home monitoring”; (2) refrain from accessing the Internet; (3) have “[n]o unsupervised contact with minors under the age of sixteen”; (4) “[c]ooperate with mental health and sex-offender assessment[s]”; and (5) “register as a sex offender.”

            In August 2003, the Hennepin County Corrections Department filed a probation-violation report with the district court because appellant “[f]ail[ed] to co-operate with Sex Offender Treatment” and “refus[ed] to participate in Sex Offender programming.”  In October 2005, the department filed a second probation-violation report because appellant “[f]ail[ed] to Complete Sex Offender Treatment” and “was terminated from therapy . . . for inappropriate behavior and a lack of progress.”  Following the filing of each report, the district court held a probation-violation hearing, warned appellant that he needed to cooperate to avoid revocation, and reinstated appellant’s probation. 

            In June 2006, the department filed a third probation-violation report, asserting that appellant violated the terms of his probation by “accessing the Internet at the Minneapolis Public Library.”  The district court held a hearing on the third report, revoked appellant’s probation, and executed appellant’s sentence.  The district court made no written findings.  This appeal follows. 

D E C I S I O N

 

I.

            The first issue is whether the district court made adequate findings to support revocation of appellant’s probation.  Whether the district court has made adequate findings before revoking probation is a question of law, which we review de novo.  State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).

            Before revoking a defendant’s probation, the district court must engage in a three-step analysis.  State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).  “[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. 

            The district court must make these findings on the record and “should not assume that [it] ha[s] satisfied Austin by reciting the three factors and offering general, non-specific reasons for revocation.”  Modtland, 695 N.W.2d at 608.  To ensure that the district court “create[s] [a] thorough, fact-specific record[] setting forth [its] reasons for revoking probation,” it should explain its substantive reasons for revocation and the evidence relied upon in reaching that determination.  Id.  Minnesota appellate courts will not uphold the district court’s revocation of probation in the absence of the requisite findings, even if revocation is supported by sufficient evidence.  Id. at 606 (abolishing the sufficient-evidence exception to the requirement that district courts make the three Austin findings).[1]

            Appellant concedes that the district court made adequate findings under the first and second Austin factors, but he contends that the district court’s oral explanation “did not satisfy the findings requirement as to the third Austin factor.”  Specifically, appellant objects to the thoroughness of the district court’s determination that the need for confinement outweighed policies favoring probation.  

            Following the state’s presentation of evidence at the revocation hearing, and after finding that appellant violated a condition of his probation by intentionally accessing the Internet, the district court considered whether reinstatement of probation was proper and concluded that it was not:

I also find that you are unamenable to probation. . . .  [T]his is the third time that you’ve been back here. . . .  I have a transcript of the first probation revocation on August 26th of 2003 when you were here because you failed to complete treatment and I reinstated probation and specifically told you that you need to cooperate with . . . your probation officer; [and that] you need to cooperate with the sex offender treatment program . . . .  You were here in 2005 for failure to complete sex offender treatment because you were terminated from therapy for inappropriate behavior and lack of progress. . . .  Nothing has changed other than the fact that you are trying to keep yourself out of prison.  At this point that does not make you amenable to probation. . . .  I have carefully considered all of this.  I have looked at all of these exhibits and I cannot find that you are amenable to probation and it appears that you are continuing to fail to accept responsibility for your actions.  

 

            In deciding to revoke probation, the district court relied heavily on appellant’s record of probation violations, emphasizing that appellant’s failure to cooperate with sex-offender treatment and his subsequent expulsion from a treatment program resulted in two probation-violation reports.  And the district court also considered its previous decisions to reinstate probation, its previous warning to appellant that its patience was running out, and appellant’s failure to cooperate with the conditions of his probation notwithstanding the district court’s leniency.  These findings bear directly on the likelihood of appellant’s successful rehabilitation if he were continued on probation and on whether confinement was necessary to protect the public from further criminal activity.  These are factors regularly and appropriately considered under the third Austin factor.

            We recognize that Austin and Modtland hold district courts to a high standard when considering whether revocation of probation is warranted.  And we agree that district courts’ careful and thorough consideration of the three Austin factors effectively works to prevent district courts from considering the propriety of revocation in an unduly cursory and reactionary manner.  On the other hand, district court judges in Minnesota capably and fairly handle heavy caseloads, and are not always afforded the time to more fully and more precisely explain the justification for their decisions. 

            Here, the district court’s findings are not model findings on the third Austin factor.  The district court never formally found that “the need for confinement outweigh[ed] the policies favoring probation.”  Austin, 295 N.W.2d at 250.  But the district court’s findings are also not general, non-specific, or reflexive.  Rather, the district court’s findings are reflective of appellant’s repeated failure to cooperate with the conditions of his probation.  The district court’s findings express its determination that there was an ample factual context showing that appellant violated an important condition of probation.  On this record, the district court’s finding that appellant was not amenable to probation is the functional equivalent of a formal finding that the need for confinement outweighed policies favoring probation.  Accordingly, no useful purpose is served by remanding to the district court for further consideration. 

            Because the district court’s findings communicate its determination that the need for confinement outweighed policies favoring probation, and that determination is supported by a reasonable substantive explanation on the record, we conclude that the district court’s findings are adequate to satisfy the requirements of Austin and Modtland.

II.

            The second issue is an extension of the first.  Having found that the district court adequately explained the decision to revoke probation, we now consider whether the district court abused its discretion in concluding that, under the third Austin factor, the facts support the conclusion that the need to confine appellant outweighed policies favoring reinstatement of his probation. 

            District courts have “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.”  Modtland, 695 N.W.2d at 605 (quotation omitted).  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.”  Id. at 606 (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).  When determining whether revocation is proper under the third factor, “courts 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 606-07 (quotation omitted).  Relevant considerations include: whether “‘confinement is necessary to protect the public from further criminal activity by the offender’”; whether “‘the offender is in need of correctional treatment which can most effectively be provided if he is confined’”; and whether “‘it would unduly depreciate the seriousness of the violation if probation were not revoked.’”  Austin, 295 N.W.2d at 251 (quoting A.B.A. Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft 1970)).

            Appellant claims that the record clearly shows that the need for confinement in this case did not outweigh the policies favoring probation.  The record includes evidence of appellant’s prior failure to cooperate with sex-offender treatment, appellant’s ejection from a treatment program on account of a lack of progress, appellant’s violation of probation by accessing the Internet, and appellant’s probation officer’s opinion that appellant is not amenable to treatment.  Austin clearly states that “[t]he purpose of probation is rehabilitation,” 295 N.W.2d at 250, and here the record supports the district court’s implicit determination that rehabilitative treatment has failed over the course of three years.  

            Appellant further argues that the need for confinement did not outweigh policies favoring probation because appellant had served more than three years of his five-year probationary term at the time of the third violation, because appellant’s probation violation was not serious enough to justify revocation, and because appellant testified that he would cooperate fully with treatment and take recommended medication.            

            First, the fact that appellant had been on probation for three years at the time of the violation, standing alone, is not determinative of whether the need for confinement outweighs policies favoring probation.  Appellant failed to comply with the terms of probation on two prior occasions.  Additionally, appellant’s use of the Internet to look at sexually provocative pictures is not as insignificant as appellant suggests.  The requirement that appellant refrain from accessing the Internet is meant to provide a bright-line and easily enforceable rule to prevent appellant’s access to child pornography.  To give little weight to appellant’s violation because the state did not prove appellant actually accessed something as offensive as child pornography weakens the effectiveness of the bright-line rule that is justified by the difficulty inherent in monitoring appellant’s Internet activity.  Appellant’s repeated failure to cooperate with sex-offender treatment also makes his Internet usage more serious.  Finally, the credibility of appellant’s testimony that he would fully cooperate with sex-offender treatment is a determination best left to the district court.  Here, the district court found that appellant’s testimony was not credible, and we defer to that determination.

            Because the district court is given broad discretion to evaluate whether the need for confinement outweighs the policies favoring probation and because there is sufficient evidence to support the district court’s determination, we conclude that the district court did not abuse its discretion in revoking appellant’s probation.

            Affirmed.

Dated: