This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-2054
State of Minnesota, Respondent,
vs.
Edwin Lee Johnson, Appellant.
Filed August 17, 2015 Affirmed Reilly, Judge
St. Louis County District Court File No. 69DU-CR-12-1856
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reilly, Presiding Judge; Hooten, Judge; and Toussaint,
Judge.*
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
REILLY, Judge
In this probation-revocation appeal, appellant argues that the district court abused
its discretion when it revoked his probation. Because the district court satisfied caselaw
requirements and did not abuse its discretion, we affirm.
FACTS
On June 8, 2012, respondent State of Minnesota charged appellant Edwin Johnson
with two counts of sale of a controlled substance in the third degree, in violation of Minn.
Stat. § 152.023, subd. 1(1) (2010). Appellant pleaded guilty to one count of sale of a
controlled substance in the third degree in exchange for the dismissal of the second count.
On February 20, 2014, in accordance with the terms of the plea agreement, the district
court imposed a 61-month sentence, stayed for five years, during which appellant would
be on probation. The plea agreement represented a downward dispositional departure.
In addition to other conditions, appellant’s probation agreement required that he
complete a rule 25 chemical dependency assessment, abstain from alcohol and drugs,
submit to random testing, and that he cooperate and meet with his probation officer as
directed. On August 5, 2014, appellant’s probation officer filed a probation-violation
report based on appellant’s failure to: undergo a rule 25 assessment, abstain from the use
of mood-altering substances, submit to urine sampling on two dates, and report to the
probation officer on two dates.
At his September 8, 2014 probation-revocation hearing, appellant admitted he
violated his probation by refusing to provide urine samples, providing a positive urine
2 sample, and failing to complete a rule 25 assessment. Appellant explained that he did not
complete the rule 25 assessment due to financial and insurance reasons.
The state asked the district court to execute appellant’s sentence, arguing that
appellant
originally got a departure from the guidelines; one of those deals that was probably a very, very good deal for him, probably too good to be true. And I believe he was warned at the time he was going to be held to be accountable and that a violation of any type wouldn’t be tolerated. Now we are back here with numerous violations that are all intentional. There is no excuse for his behavior. To succeed on probation, first, you have to be honest with your probation officer. He hasn’t been honest. He doesn’t report. He doesn’t give UA’s when he’s supposed to. He’s testing positive, an indication that he is continuing to use. It’s tough because individually these violations aren’t the most serious type for a recommendation for prison, but if you put them together, they add up to a pretty serious situation, given his record. I think he has three prior drug convictions before this on his record, if I recall right. It’s clear from his past and current behavior he is not amenable to probation. He’s just not.
The district court agreed, revoked appellant’s probation, and executed his sentence.
Appellant appeals.
DECISION
Appellant argues that the district court abused its discretion by revoking his
probation. When a probationer violates a condition of probation, the district court may
continue probation, revoke probation and impose the stayed sentence, or order
intermediate sanctions. Minn. Stat. § 609.14, subd. 3 (2012). Prior to revoking
probation, the district court must “1) designate the specific condition or conditions that
3 were violated; 2) find that the violation was intentional or inexcusable; and 3) find that
the need for confinement outweighs the policies favoring probation.” State v. Austin, 295
N.W.2d 246, 250 (Minn. 1980). Failure to address all three Austin factors requires
reversal and remand, even if the evidence was sufficient to support the revocation. State
v. Modtland, 695 N.W.2d 602, 606-08 (rejecting this court’s application of a “sufficient-
evidence exception” to the Austin findings requirement).
“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. at 605 (quotation omitted). However, whether a lower court has made
the findings required under Austin presents a question of law, which is subject to de novo
review. Id. Here, at the contested probation-revocation hearing, the district court found:
I remember when we were all together for that sentencing just back in February and, you know, I remember being very clear that you were getting a heck of a break by not going off to prison at that time and I remember you telling me because of your son, because, you know, you wanted to be there for him, that you were really going to change things around, and as I look at the allegations that are – that you’ve admitted to, you know, you just have – there’s – it’s not just one thing. It’s a whole series of things and, like you say, it may just be because you are – you know, you have a tough time dealing with those outside authorities. Nonetheless, I’m going to find here that clear and convincing evidence has been provided for probation violations, that the intentions were – or the violations were intentional and inexcusable and that the need for confinement outweighs the benefits of probation because I think the danger to others is out there and it would unduly depreciate the seriousness of the underlying offense if you were just allowed to continue on probation on this. So with that, I am going to revoke the stay of execution and send you to the Commissioner of Corrections for 61 months.
4 The first Austin factor requires that the district court designate the specific
conditions of probation that were violated. Austin, 295 N.W.2d at 250. Appellant’s
probation-violation report listed three violations: (1) failure to undergo chemical
dependency assessment; (2) failure to submit to random tests; and (3) failure to report to
his probation officer. The district court questioned appellant about the violated
conditions, and appellant admitted that he violated them. Appellant then entered guilty
admissions to all the probation violations, and the district court accepted appellant’s
admissions. The district court based the revocation on all of the probation violations and
this is sufficient to satisfy the first factor.
The second Austin factor requires that the district court find that the violations
were “intentional or inexcusable.” Id. Here, the district court stated that the probation
violations were “intentional and inexcusable.” Thus, the second prong of the Austin
analysis is satisfied.
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-2054
State of Minnesota, Respondent,
vs.
Edwin Lee Johnson, Appellant.
Filed August 17, 2015 Affirmed Reilly, Judge
St. Louis County District Court File No. 69DU-CR-12-1856
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reilly, Presiding Judge; Hooten, Judge; and Toussaint,
Judge.*
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
REILLY, Judge
In this probation-revocation appeal, appellant argues that the district court abused
its discretion when it revoked his probation. Because the district court satisfied caselaw
requirements and did not abuse its discretion, we affirm.
FACTS
On June 8, 2012, respondent State of Minnesota charged appellant Edwin Johnson
with two counts of sale of a controlled substance in the third degree, in violation of Minn.
Stat. § 152.023, subd. 1(1) (2010). Appellant pleaded guilty to one count of sale of a
controlled substance in the third degree in exchange for the dismissal of the second count.
On February 20, 2014, in accordance with the terms of the plea agreement, the district
court imposed a 61-month sentence, stayed for five years, during which appellant would
be on probation. The plea agreement represented a downward dispositional departure.
In addition to other conditions, appellant’s probation agreement required that he
complete a rule 25 chemical dependency assessment, abstain from alcohol and drugs,
submit to random testing, and that he cooperate and meet with his probation officer as
directed. On August 5, 2014, appellant’s probation officer filed a probation-violation
report based on appellant’s failure to: undergo a rule 25 assessment, abstain from the use
of mood-altering substances, submit to urine sampling on two dates, and report to the
probation officer on two dates.
At his September 8, 2014 probation-revocation hearing, appellant admitted he
violated his probation by refusing to provide urine samples, providing a positive urine
2 sample, and failing to complete a rule 25 assessment. Appellant explained that he did not
complete the rule 25 assessment due to financial and insurance reasons.
The state asked the district court to execute appellant’s sentence, arguing that
appellant
originally got a departure from the guidelines; one of those deals that was probably a very, very good deal for him, probably too good to be true. And I believe he was warned at the time he was going to be held to be accountable and that a violation of any type wouldn’t be tolerated. Now we are back here with numerous violations that are all intentional. There is no excuse for his behavior. To succeed on probation, first, you have to be honest with your probation officer. He hasn’t been honest. He doesn’t report. He doesn’t give UA’s when he’s supposed to. He’s testing positive, an indication that he is continuing to use. It’s tough because individually these violations aren’t the most serious type for a recommendation for prison, but if you put them together, they add up to a pretty serious situation, given his record. I think he has three prior drug convictions before this on his record, if I recall right. It’s clear from his past and current behavior he is not amenable to probation. He’s just not.
The district court agreed, revoked appellant’s probation, and executed his sentence.
Appellant appeals.
DECISION
Appellant argues that the district court abused its discretion by revoking his
probation. When a probationer violates a condition of probation, the district court may
continue probation, revoke probation and impose the stayed sentence, or order
intermediate sanctions. Minn. Stat. § 609.14, subd. 3 (2012). Prior to revoking
probation, the district court must “1) designate the specific condition or conditions that
3 were violated; 2) find that the violation was intentional or inexcusable; and 3) find that
the need for confinement outweighs the policies favoring probation.” State v. Austin, 295
N.W.2d 246, 250 (Minn. 1980). Failure to address all three Austin factors requires
reversal and remand, even if the evidence was sufficient to support the revocation. State
v. Modtland, 695 N.W.2d 602, 606-08 (rejecting this court’s application of a “sufficient-
evidence exception” to the Austin findings requirement).
“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. at 605 (quotation omitted). However, whether a lower court has made
the findings required under Austin presents a question of law, which is subject to de novo
review. Id. Here, at the contested probation-revocation hearing, the district court found:
I remember when we were all together for that sentencing just back in February and, you know, I remember being very clear that you were getting a heck of a break by not going off to prison at that time and I remember you telling me because of your son, because, you know, you wanted to be there for him, that you were really going to change things around, and as I look at the allegations that are – that you’ve admitted to, you know, you just have – there’s – it’s not just one thing. It’s a whole series of things and, like you say, it may just be because you are – you know, you have a tough time dealing with those outside authorities. Nonetheless, I’m going to find here that clear and convincing evidence has been provided for probation violations, that the intentions were – or the violations were intentional and inexcusable and that the need for confinement outweighs the benefits of probation because I think the danger to others is out there and it would unduly depreciate the seriousness of the underlying offense if you were just allowed to continue on probation on this. So with that, I am going to revoke the stay of execution and send you to the Commissioner of Corrections for 61 months.
4 The first Austin factor requires that the district court designate the specific
conditions of probation that were violated. Austin, 295 N.W.2d at 250. Appellant’s
probation-violation report listed three violations: (1) failure to undergo chemical
dependency assessment; (2) failure to submit to random tests; and (3) failure to report to
his probation officer. The district court questioned appellant about the violated
conditions, and appellant admitted that he violated them. Appellant then entered guilty
admissions to all the probation violations, and the district court accepted appellant’s
admissions. The district court based the revocation on all of the probation violations and
this is sufficient to satisfy the first factor.
The second Austin factor requires that the district court find that the violations
were “intentional or inexcusable.” Id. Here, the district court stated that the probation
violations were “intentional and inexcusable.” Thus, the second prong of the Austin
analysis is satisfied.
Appellant argues that the evidence was insufficient to support the district court’s
finding on the third Austin factor. In considering whether the need for confinement
outweighs the policies favoring probation, the district court must consider if:
(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. Specifically, appellant maintains that the district court’s
findings were too general and reflexive. When conducting an Austin analysis, a district
5 court may not simply recite the three Austin factors and offer “general, non-specific
reasons for revocation.” Id. at 608. While written orders are not required, the district
court should at least “stat[e] its findings and reasons on the record, which, when reduced
to a transcript, is sufficient to permit review.” Id. at 608 n.4.
Here, the district court found that “the need for confinement outweighs the
benefits of probation because I think the danger to others is out there and it would unduly
depreciate the seriousness of the underlying offense if you were just allowed to continue
on probation on this.” From the date he was sentenced, appellant failed to follow the
basic terms of his probation. The district court sentenced appellant on February 20, 2014,
and he committed his first probation violation on May 8, 2014. He committed additional
violations on May 21, June 18, June 24, and July 16, 2014. Prior to his most recent
controlled-substance offense, appellant had three other controlled-substance offenses.
Moreover, the record shows and the prosecution informed the district court that appellant
had threatened his probation officer, making him a danger to others. This was the same
probation officer whom appellant evaded multiple times and failed to keep in contact
with. The record supports the conclusion that appellant is unamenable to probation.
Based on this record, the district court made the required findings and did not abuse its
broad discretion when it revoked appellant’s probation. See State v. Osborne, 732
N.W.2d 249, 253 (Minn. 2007) (stating that in revoking probation it must be shown that
the offender’s behavior demonstrates that he “cannot be counted on to avoid antisocial
activity”).
6 Finally, appellant contends that the district court erred by improperly considering
the fact that he had received a downward dispositional departure at sentencing. 1 At the
probation-revocation hearing, the district court told appellant
I remember being very clear that you were getting a heck of a break by not going off to prison at that time and I remember you telling me because of your son, because, you know, you wanted to be there for him, that you were really going to change things around, and as I look at the allegations that are – that you’ve admitted to, you know, you just have – there’s – it’s not just one thing. It’s a whole series of things and, like you say, it may just be because you are – you know, you have a tough time dealing with those outside authorities.
The sentencing guidelines provide that if a district court is considering whether to revoke
a stayed sentence, “Less judicial tolerance is urged for offenders who were convicted of a
more severe offense.” Minn. Sent. Guidelines 3.B. (2012). The district court’s analysis
of the third Austin factor is consistent with this directive of the sentencing guidelines.
Thus, the district court did not err by considering appellant’s downward dispositional
departure.
Affirmed.
1 In a recent opinion, State v. Finch, No. A14-0203, 2015 WL 4237954, at *7 (Minn. July 8, 2015), the supreme court determined that a district court judge’s impartiality was questionable when the judge told the appellant that she would revoke the appellant’s probation for any violation and “speculated that [the appellant] had ‘duped’ the court when he exercised his right to appeal.” Id. at *7 (emphasis added). Although, like the appellant in Finch, appellant’s downward departure was discussed by the district court during the probation revocation hearing, here the district court judge’s impartiality was not questioned nor did the court unequivocally tell appellant that any probation violation would result in probation revocation. Accordingly, while instructive, Finch does not control the facts of this case. Moreover, the Austin factors were neither before nor considered by the Finch court. Id. at *2 n.2.