This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA IN COURT OF APPEALS A16-1131
State of Minnesota, Respondent,
vs.
Lenny Clyde White, Appellant.
Filed January 30, 2017 Affirmed Halbrooks, Judge
Hennepin County District Court File No. 27-CR-13-19155
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Frank Richard Gallo, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Kirk, Presiding Judge; Halbrooks, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
Appellant challenges the revocation of his probation and execution of his sentence,
arguing that the district court abused its discretion by finding that the need for confinement outweighs public policies favoring probation. Because the district court properly
determined that the need for appellant’s confinement outweighs the policies favoring
probation, we affirm.
FACTS
Appellant Lenny Clyde White is required to register as a predatory offender based
on a 2000 conviction of false imprisonment. In June 2013, White was charged with failing
to register as a predatory offender, in violation of Minn. Stat. § 243.166, subd. 5(a) (2012).
Over the course of White’s criminal proceedings, the district court conditionally released
him, and later revoked his conditional release, on three separate occasions. It revoked his
conditional release twice for failing to abstain from using alcohol and controlled substances
and once for violating an order for protection in an unrelated matter.
White pleaded guilty to failure to register as a predatory offender, and the district
court stayed execution of a 36-month prison sentence, ordered White to serve 365 days in
a workhouse, and placed him on probation in July 2014. Because the presumptive sentence
was 31-43 months in prison, White’s sentence constituted a downward dispositional
departure.
In January 2016, White’s probation officer filed a probation-violation report,
alleging that White (1) violated multiple conditions of his probation by missing multiple
appointments with his probation officer, (2) failed to abstain from alcohol use, and
(3) failed to report for random drug testing on eight occasions. White denied the
allegations in the report.
2 The district court found that White violated the conditions of his probation and that
his violations were intentional and inexcusable. It also concluded that White was
unamenable to probation and that the need for confinement outweighs the public policies
favoring probation. To support its decision, the district court stated that White was “in
need of correctional treatment that can only be provided by confinement” and that
“[c]ontinued probation would unduly depreciate the seriousness of the offense.” The
district court revoked White’s probation and executed his 36-month prison sentence. This
appeal follows.
DECISION
White argues that the district court abused its discretion by relying exclusively on
his prior failures on probation to find that the need for his confinement outweighs the
policies favoring probation. 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
purpose of probation is rehabilitation and revocation should be used only as a last resort
when treatment has failed.” Id. at 250.
Prior to revoking probation, a district court must follow the three-factor analysis
identified in Austin by (1) designating the specific condition or conditions that were
violated, (2) finding that the violation was intentional or inexcusable, and (3) finding that
the need for confinement outweighs the policies favoring probation. Id. Because White
does not challenge the district court’s findings on the first two Austin factors, our analysis
3 is limited to whether the district court abused its discretion by finding that the third Austin
factor was satisfied.
The third Austin factor requires the district court to “balance the probationer’s
interest in freedom and the state’s interest in insuring his rehabilitation and the public
safety, and base [its] decisions on sound judgment and not just [its] will.” State v.
Modtland, 695 N.W.2d 602, 606-07 (Minn. 2005) (quotations omitted). This factor is only
satisfied if the district court finds
“on the basis of the original offense and the intervening conduct of the offender that: (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.”
Id. at 607 (quoting Austin, 295 N.W.2d at 251). The district court may also consider a
defendant’s downward dispositional departure when deciding whether to revoke probation.
State v. Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015), aff’d on other grounds, 883
N.W.2d 790 (Minn. 2016); State v. Moot, 398 N.W.2d 21, 24 (Minn. App. 1986), review
denied (Minn. Feb. 13, 1987).
Here, the district court concluded that the need for confinement outweighs the
policies favoring probation because White “is in need of correctional treatment that can
only be provided by confinement” and “[c]ontinued probation would unduly depreciate the
seriousness of [White’s] offense and the numerous violations.”
4 Confinement Necessary to Effectively Provide Correctional Treatment
White argues that the district court abused its discretion because it focused only on
his past failures while on probation. The district court found that White was discharged
from treatment and violated his current probation by failing to make scheduled
appointments with his probation officer, failing to abstain from alcohol use, and failing to
submit to random testing. The district court also determined that White’s case “was a
presumptive prison sentence,” but that he “received a downward dispositional departure
and the benefit of probation as part of a plea negotiation.” It referenced his “numerous
violations” on his current probation. Because the district court clearly referenced more
than his past probationary failures, we disagree with White’s characterization of the district
court’s order.
Next, White contends that the phrase “intervening conduct,” as stated by the
supreme court in Austin and Modtland is limited to post-sentencing conduct when a district
court decides whether to revoke probation and that the district court erred by considering
his prior probationary failures and conditional-release violations. But we note that the
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA IN COURT OF APPEALS A16-1131
State of Minnesota, Respondent,
vs.
Lenny Clyde White, Appellant.
Filed January 30, 2017 Affirmed Halbrooks, Judge
Hennepin County District Court File No. 27-CR-13-19155
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Frank Richard Gallo, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Kirk, Presiding Judge; Halbrooks, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
Appellant challenges the revocation of his probation and execution of his sentence,
arguing that the district court abused its discretion by finding that the need for confinement outweighs public policies favoring probation. Because the district court properly
determined that the need for appellant’s confinement outweighs the policies favoring
probation, we affirm.
FACTS
Appellant Lenny Clyde White is required to register as a predatory offender based
on a 2000 conviction of false imprisonment. In June 2013, White was charged with failing
to register as a predatory offender, in violation of Minn. Stat. § 243.166, subd. 5(a) (2012).
Over the course of White’s criminal proceedings, the district court conditionally released
him, and later revoked his conditional release, on three separate occasions. It revoked his
conditional release twice for failing to abstain from using alcohol and controlled substances
and once for violating an order for protection in an unrelated matter.
White pleaded guilty to failure to register as a predatory offender, and the district
court stayed execution of a 36-month prison sentence, ordered White to serve 365 days in
a workhouse, and placed him on probation in July 2014. Because the presumptive sentence
was 31-43 months in prison, White’s sentence constituted a downward dispositional
departure.
In January 2016, White’s probation officer filed a probation-violation report,
alleging that White (1) violated multiple conditions of his probation by missing multiple
appointments with his probation officer, (2) failed to abstain from alcohol use, and
(3) failed to report for random drug testing on eight occasions. White denied the
allegations in the report.
2 The district court found that White violated the conditions of his probation and that
his violations were intentional and inexcusable. It also concluded that White was
unamenable to probation and that the need for confinement outweighs the public policies
favoring probation. To support its decision, the district court stated that White was “in
need of correctional treatment that can only be provided by confinement” and that
“[c]ontinued probation would unduly depreciate the seriousness of the offense.” The
district court revoked White’s probation and executed his 36-month prison sentence. This
appeal follows.
DECISION
White argues that the district court abused its discretion by relying exclusively on
his prior failures on probation to find that the need for his confinement outweighs the
policies favoring probation. 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
purpose of probation is rehabilitation and revocation should be used only as a last resort
when treatment has failed.” Id. at 250.
Prior to revoking probation, a district court must follow the three-factor analysis
identified in Austin by (1) designating the specific condition or conditions that were
violated, (2) finding that the violation was intentional or inexcusable, and (3) finding that
the need for confinement outweighs the policies favoring probation. Id. Because White
does not challenge the district court’s findings on the first two Austin factors, our analysis
3 is limited to whether the district court abused its discretion by finding that the third Austin
factor was satisfied.
The third Austin factor requires the district court to “balance the probationer’s
interest in freedom and the state’s interest in insuring his rehabilitation and the public
safety, and base [its] decisions on sound judgment and not just [its] will.” State v.
Modtland, 695 N.W.2d 602, 606-07 (Minn. 2005) (quotations omitted). This factor is only
satisfied if the district court finds
“on the basis of the original offense and the intervening conduct of the offender that: (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.”
Id. at 607 (quoting Austin, 295 N.W.2d at 251). The district court may also consider a
defendant’s downward dispositional departure when deciding whether to revoke probation.
State v. Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015), aff’d on other grounds, 883
N.W.2d 790 (Minn. 2016); State v. Moot, 398 N.W.2d 21, 24 (Minn. App. 1986), review
denied (Minn. Feb. 13, 1987).
Here, the district court concluded that the need for confinement outweighs the
policies favoring probation because White “is in need of correctional treatment that can
only be provided by confinement” and “[c]ontinued probation would unduly depreciate the
seriousness of [White’s] offense and the numerous violations.”
4 Confinement Necessary to Effectively Provide Correctional Treatment
White argues that the district court abused its discretion because it focused only on
his past failures while on probation. The district court found that White was discharged
from treatment and violated his current probation by failing to make scheduled
appointments with his probation officer, failing to abstain from alcohol use, and failing to
submit to random testing. The district court also determined that White’s case “was a
presumptive prison sentence,” but that he “received a downward dispositional departure
and the benefit of probation as part of a plea negotiation.” It referenced his “numerous
violations” on his current probation. Because the district court clearly referenced more
than his past probationary failures, we disagree with White’s characterization of the district
court’s order.
Next, White contends that the phrase “intervening conduct,” as stated by the
supreme court in Austin and Modtland is limited to post-sentencing conduct when a district
court decides whether to revoke probation and that the district court erred by considering
his prior probationary failures and conditional-release violations. But we note that the
supreme court has concluded that a district court did not abuse its discretion by revoking
an offender’s probationary status based on his “lengthy history of criminal activity and
chronic probation and treatment failures.” State v. Osborne, 732 N.W.2d 249, 256 (Minn.
2007). And we do not address this argument because White’s conduct post-sentencing by
itself provided the district court with a sufficient basis to revoke his probation. See State
v. Vang, 847 N.W.2d 248, 265 & n.9 (Minn. 2014) (declining to resolve an issue that was
not necessary to dispose of the case).
5 In Austin, the supreme court stated that “it was not unreasonable to conclude that
treatment had failed” when the offender failed to take advantage of treatment opportunities
or “show a commitment to rehabilitation.” 295 N.W.2d at 251. White began violating the
conditions of his probation six months after he was sentenced. Over a one-year period, he
failed to submit to random testing eight times, tested positive for alcohol on three separate
occasions, and provided diluted test samples on four other occasions. In addition, he failed
to meet with his probation agent and was discharged from treatment. Because White’s
probation violations are numerous and he was discharged from treatment, we conclude that
the district court did not err by finding that White “is in need of correctional treatment that
can only be provided by confinement.”
Unduly Depreciating the Seriousness of the Violation
The state asserts that the district court also stated an alternative ground for revoking
White’s probation. We agree.
The third Austin requirement can be satisfied if the district court finds that “(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 (emphasis added). Here, the district
court determined that a continuation of White’s probation would unduly depreciate the
seriousness of his violations. White did not challenge this finding. We conclude that this
determination provided the district court with an alternative basis to revoke White’s
probation.
6 Because White’s probation violations and underlying offense provided the district
court with two sufficient and independent grounds to revoke his probation, we conclude
that the district court properly exercised its discretion.
Affirmed.