This opinion will be unpublished and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

A06-2183

 

State of Minnesota,

Respondent,

 

vs.

 

Robert D. Horacek,

Appellant.

 

Filed August 14, 2007

Affirmed

Dietzen, Judge

 

Cass County District Court

File No. K0-05-1224

 

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

 

Earl E. Maus, Cass County Attorney, Christopher J. Strandlie, Assistant County Attorney, P.O. Box 3000, Walker, MN 56484 (for respondent)

 

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

 

            Considered and decided by Worke, Presiding Judge; Stoneburner, Judge; and Dietzen, 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 first-degree burglary, arguing that the district court failed to make the requiredfindings under State v. Austin and abused its discretion in revoking his probation.  Because we conclude that the district court made the required findings and did not abuse its discretion, we affirm.

FACTS

In October 2005, appellant Robert D. Horacek attended a bachelor party at Grand View Lodge in Cass County, Minnesota.  While at the party, appellant met J.A., another male party guest.  J.A., his girlfriend K.Y., and their five-year-old son live in a home adjacent to the lodge.  During the night, J.A. and K.Y. awoke to find appellant performing oral sex on J.A.  When they awoke, appellant fled.

Appellant was subsequently arrested and charged with first-degree burglary involving an assault under Minn. Stat. § 609.582, subd. 1(c) (2004); first-degree burglary under Minn. Stat. § 609.582, subd. 1(a) (2004); and criminal sexual conduct in the third degree under Minn. Stat. § 609.344, subd. 1(d) (2004).  Appellant entered an Alford plea of guilty to first-degree burglary involving assault, and the other two charges were dismissed.  Appellant then waived his right to have a jury determine whether there were aggravating factors and agreed to permit the court to make findings on aggravating factors and an upward durational departure.

The court sentenced appellant to 72 months and stayed execution of that sentence.  Appellant was placed on probation and ordered to serve 60 days of local incarceration with work release, complete a chemical-health assessment and follow the recommendations, complete sex-offender treatment, and abstain from the use of alcohol. 

During appellant’s local incarceration, he tested positive for alcohol use following his return to the jail after work release.  A probation violation report was filed and a probation hearing was held. 

The district court revoked appellant’s probation and executed his 72-month sentence.   The court stated:

I don’t know how much more clear I could have been at the time of sentencing.  You were given a break at sentencing when you came in with alcohol and now maybe that was a mistake.  Maybe you didn’t understand.  But there could have been no misunderstanding about what would happen if you violated again.  I made it so absolutely clear.  I think the record will reflect that.  I gave you a break by not sending you to prison the first time contrary to what the victims had asked for.

 

And the message that would be sent if I didn’t do this would be that you don’t have to follow probation, that you don’t have to do what you’re supposed to, and no matter what I say you’re going to be given a break again.  You were given a tremendous break.  All the reports indicate that you’re at high risk if you use alcohol and you did.

 

And so in the interests of public safety, and the fact that you violated not only the conditions of release but the terms of your probation indicates to the Court that you are not amenable to probation . . . .  I’m sorry you’ve made this choice, but you’re the one who’s put yourself in this position, and I think that public safety requires this.

 

This appeal followed.

D E C I S I O N

Appellant argues that the district court did not make the required findings under State v. Austin, 295 N.W.2d 246 (Minn. 1980), and that its decision to revoke his probation was not supported by the record.  Whether 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).  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.  Id. 

Our supreme court has established a three-step analysis that must be applied before probation may be revoked.  Austin, 295 N.W.2d at 250.  Specifically, the district 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 supreme court recently reaffirmed Austin’s core holding holding 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.”  Modtland, 695 N.W.2d at 607 (emphasis in original).

Appellant does not argue that the district court failed to make the required Austin findings on the first two factors.  But appellant does argue that the district court failed to make findings on the third factor.  Thus, we review whether the district court’s order satisfied the third requirement of Austin.

Austin requires the district court to “find that need for confinement outweighs the policies favoring probation.”  Austin, 295 N.W.2d at 250.  The district court 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 did not expressly find that the need for confinement outweighs the policies favoring probation.  But the district court did conclude that appellant was “not amenable to probation,” that “public safety requires” revocation, and that appellant was “at high risk” if he used alcohol.  The court observed that appellant was given a “tremendous break” by receiving probation, and that appellant needed to have consequences for his failure to follow the conditions of his probation. 

Appellant next argues that the district court did not consider his interest in freedom.  In considering the third factor, the district court should “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).  But Modtland and Austin do not require findings on appellant’s interest in freedom.  Rather, appellant’s “interest in freedom” is one of the considerations the court must weigh when making the required third finding.  Austin, 295 N.W.2d at 250; Modtland, 695 N.W.2d at 607-08. 

Appellant argues that revocation of probation should only be a “last resort.”  See Austin, 295 N.W.2d at 250 (stating that the “purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed”).  But the court may base its decision on “a showing that the offender’s behavior demonstrates that he or she cannot be counted on to avoid anti-social activity.”  Id. at 251 (quotation omitted).  Here, appellant consumed alcohol while on work release in violation of his probation and his work release. 

Appellant further argues that his consumption of alcohol does not prove that his treatment for alcoholism was unsuccessful.  Appellant points out that this was his only violation, that he has no prior criminal history, and that his drinking violation did not pose a danger to the public.  But appellant’s probation was specifically conditioned on his refraining from alcohol.  This condition was especially pertinent because the underlying offense occurred while appellant was under the influence of alcohol.  Therefore, the record supports the court’s finding that the need for confinement outweighs the policies favoring probation. 

            Affirmed.