State of Minnesota, Respondent, vs. Deandre Jerome Barnes, Appellant.

This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

State of Minnesota,

Respondent,

vs.

Bradley Mittias Backman,

Appellant.

Affirmed

Hennepin County District Court

File No. 96110682

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

Matthew K. Brokl, Assistant Plymouth City Attorney, Campbell Knutson, P.A., 317 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for respondent)

Daniel S. Adkins, Sand & Associates, 168 Nina Street, St. Paul, MN 55102 (for appellant)

            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Willis, Judge.

LANSING, Judge

Bradley Backman appeals from an order revoking his probation on two driving-while-under-the-influence (DWI) sentences.  Backman contends that the district court erred by failing to take into account another judge's intention to include the revocations as part of an earlier sentence imposed on Backman for a third DWI offense.  Because the district court did not abuse its discretion in revoking probation, we affirm. 

FACTS

On January 30, 1997, Bradley Backman pleaded guilty to gross-misdemeanor DWI.  The district court sentenced Backman to 365 days in jail, but stayed execution of the sentence and imposed probation.  The conditions of the stay included having no same or similar offenses.  The court also revoked 270 days on a stayed sentence for a 1995 DWI.  Following the January 30 sentencing and revocation of stay, 365 days remained on the 1997 sentence and 95 days remained on the 1995 sentence. 

On April 13, 1999, Backman pleaded guilty to a new alcohol-related driving offense, and on June 2, 1999, another district-court judge imposed sentence.  On November 10, 1999, Backman appeared for a revocation hearing on the stayed sentences for the 1997 and 1995 offenses.  Backman admitted that he had pleaded guilty to a DWI charge on April 13, 1999.  The district court revoked the stays on the 1995 and 1997 sentences and executed the time remaining on each sentence.  The court gave Backman credit for the 120 days he had served on the 1999 sentence.  Backman appeals from the two revocations. 

D E C I S I O N

The district court is accorded broad discretion to determine whether the evidence is sufficient to support probation revocation, and this court will reverse only when the district court has abused that discretion.  State v. Spanyard, 358 N.W.2d 125, 127 (Minn. App. 1984) (citing State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980)).  To revoke probation, the court must (1) designate the specific condition or conditions a probationer violated; (2) find that the violation was intentional and inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation.  Austin, 295 N.W.2d at 250.  If the court fails to make explicit findings, this court will nevertheless uphold the revocation if the record otherwise supports it.  State v. Balma, 549 N.W.2d 102, 105 (Minn. App. 1996) (citing Austin, 295 N.W.2d at 250). 

            Backman does not challenge the propriety of the district court's revocations of the 1995 and 1997 sentences.  Rather, he argues that the district court judge who sentenced him on the 1999 offense intended that sentence to cover not only the 1999 offense but also the 1995 and 1997 revocations.  In support of his argument, Backman cites off-the-record discussions with the 1999 sentencing judge and the proceedings at the 1999 sentencing.  Backman has failed to provide any transcript of the 1999 sentencing. 

            We first note that Backman has not appealed the 1999 sentence.  In fact, Backman does not argue that the 1999 sentence was inappropriate.  Backman only argues that he was not afforded the "break" he believed he would receive in the subsequent revocation hearing on the 1995 and 1997 sentences. 

Second, Backman has not provided an adequate record to allow meaningful review of either the 1999 sentence or its impact on the subsequent revocation of the 1995 and 1997 sentences.  The appellant has the burden to provide an adequate record for review. Custom Farm Servs., Inc. v. Collins, 306 Minn. 571, 572, 238 N.W.2d 608, 609 (1976) (refusing to consider sufficiency-of-evidence and attorney-misconduct issues when appellant provided inadequate record for review); State v. Plant, 280 Minn. 397, 399, 159 N.W.2d 404, 405 (1968) (holding claims without support in the record not reviewable); Eichinger v. Wicker Enters., Inc., 389 N.W.2d 759, 761 (Minn. App. 1986) (refusing to consider issues because of inadequate record), review denied (Minn. Aug. 27, 1986).  Error may not be presumed.  Custom Farm Servs., 306 Minn. at 572, 238 N.W.2d at 609.  Because we are unable to verify the alleged contents of the 1999 sentencing record, we cannot assess what impact, if any, that sentence had on the subsequent revocations. 

            Aside from Backman's unsupported allegations of implied assurances in the 1999 sentence, the record amply supports the district court's revocations.  Even though the district court made no explicit findings on the last two prongs of the Austin test, the record establishes that Backman violated his probation intentionally and without excuse and that the need for confinement outweighs the policies favoring probation.  Backman conceded that he violated the conditions of probation on the 1995 and 1997 sentences by committing a same or similar offense.  He offered no evidence that the violationBackman's sixth DWI conviction in Hennepin County since 1994was excusable or unintentional.  That the conviction was Backman's sixth also supports a finding that the need for confinement outweighed the policies favoring probation. 

Affirmed.