State of Minnesota, Respondent, vs. John Lee Patterson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-03-325

 

State of Minnesota,

Respondent,

 

vs.

 

John Lee Patterson,

Appellant.

 

Filed July 15, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Ramsey County District Court

File No. K502550

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)

 

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

 

            Considered and decided by Shumaker, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellant challenges the district court's revocation of his probation and execution of his sentence for failing to meet with his probation officer and for failing to provide proof of weekly attendance at a 12-step program.  Because the district court properly revoked appellant's probation, we affirm.

FACTS

            Appellant John Lee Patterson pleaded guilty to felony theft.  On October 14, 2002, the district court sentenced him to 21 months, stayed execution of this sentence, and placed him on probation for five years.  Patterson's probation conditions included requirements that he meet with his probation officer and that he show proof to his probation officer of weekly attendance at a 12-step program.  On October 29 and November 5, 2002, Patterson failed to attend scheduled meetings with his probation officer.  He also failed to show proof to his probation officer of attendance in the 12-step program. 

During his probation-violation hearing, Patterson admitted these two probation violations.  But he argued that his sentence should not be executed because he thought his probation officer was located at the Spruce Tree office, instead of the Arcade office; his violation was not "the worst violation"; he had attended some 12-step program meetings and could provide verification; he now knows his probation officer's name, telephone number, and address; he remained law abiding; he moved and his uncle refused to forward his mail; he had worked temporary jobs; and this was his first violation.  He contended that when he went to the Spruce Tree office to find his probation officer the community-corrections staff told him that they did not know what office he was to report to or who his probation officer was.

            Patterson's probation officer testified that if a staff member had checked the computer it would have identified him as the supervising probation officer.  He recommended that the district court execute Patterson's sentence because of his "very, very extensive criminal history * * * he has six prior felony convictions, four of which resulted in execution of the sentence."  The state also recommended that the district court execute Patterson's sentence because probation was a sentencing departure, he had been on probation before, and if he had contacted the Spruce Tree office the staff would have directed him to his probation officer.

            The district court did not make any written or oral findings but executed Patterson's sentence based on his admission that he violated his probation conditions.  Patterson appeals the district court's order revoking his probation and executing his sentence.

D E C I S I O N

            On appeal our standard of review recognizes the district court's "broad discretion in determining if there is sufficient evidence to revoke probation," and we will reverse the district court "only if there is a clear abuse of that discretion."  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980) (citations omitted).  Before the district court can revoke a defendant's probation it must

1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that [the] need for confinement outweighs the policies favoring probation.

 

Id. at 250. 

            The first Austin factor is that Patterson must have violated specific conditions of his probation.  He does not contest that he violated conditions of his probation when he failed to attend two meetings with his probation officer and failed to provide proof of weekly attendance at a 12-step program.  Thus, the district court properly found that he violated these probation conditions.

            The second Austin factor is that Patterson's probation violation must have been intentional or inexcusable.  Patterson argues that his violations were not intentional or inexcusable because he tried to comply with his probation conditions when he attempted to report for probation at the Spruce Tree office and when he attended the 12-step program but only failed to provide proof of his attendance.

            The district court did not make a specific finding that Patterson's violation was intentional or inexcusable.  Paterson argues that this was an abuse of discretion and that under State v. Balma and State v. Hlavac we need not search the record for sufficient evidence to support the second Austin factor.  See State v. Balma, 549 N.W.2d 102, 105 (Minn. App. 1996); State v. Hlavac, 540 N.W.2d 551, 553 (Minn. App. 1995).  Yet, it is not an abuse of discretion for the district court not to make each specific finding if "the record contains sufficient evidence to warrant the revocation."  State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995) (citing Austin, 295 N.W.2d at 250), review denied (Minn. July 20, 1995).

            We conclude that there is sufficient evidence in the record that Patterson's probation violations were intentional and inexcusable.  Although Patterson offered excuses for his failures to comply with his probationary requirements, the court did not believe him and instead believed contrary evidence in the record.  This conflicting evidence resulted in the district court making a credibility determination in favor of the probation officer, which we will not disturb.  See State v. Spanyard, 358 N.W.2d 125, 127 (Minn. App. 1984) (stating that "the function of the factfinder is to weigh the credibility of witnesses"), review denied (Minn. Feb. 27, 1985).  The probationer has the burden of complying and determining how to comply with the probation conditions.  Thus, the evidence would support a finding that Patterson intentionally and inexcusably violated his probation. 

            The third Austin factor is that the need to confine Patterson outweighed the policies favoring probation.  Patterson argues that there is no need to confine him because this was his first probation violation; there is no reason to believe that he would not succeed on probation; he now knows who his probation officer is; he has not committed any new offenses; and he has secured work.  Again, the district court did not make this specific Austin finding, but it is not an abuse of discretion if the record sufficiently supports Patterson's need for confinement.  See Theel, 532 N.W.2d at 267.  When addressing this third factor, the supreme court has held that

[t]he purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed. * * * The decision to revoke cannot 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 anti-social activity.'"

 

Austin, 295 N.W.2d at 250-51.  The Austin court also provided grounds that courts should use when weighing the need for confinement versus probation:

Grounds for and alternatives to probation revocation. 

 

(a)  Violation of a condition is both a necessary and a sufficient ground for the revocation of probation.  Revocation followed by imprisonment should not be the disposition, however, unless the 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 251 (quotation omitted). 

            We conclude that the district court did not abuse its discretion when it confined Patterson because not revoking his probation would unduly depreciate the seriousness of his violations.  He is not a first-time probation violator; he is a sophisticated probationer.  Patterson has had at least four probation violations for previous offenses.  His pattern of continuous violations while on probation provides this court with sufficient evidence that he is unamenable to further probation and that he does not appreciate the seriousness of his violations.

            He has an established history of theft-related criminal activity.  He has had over two-dozen misdemeanor and gross misdemeanor theft convictions.  He also has been convicted of four felony theft-related convictions in addition to the current felony theft-related conviction.  At the time of Patterson's sentencing, he had seven criminal-history points.  The Minnesota Sentencing Guidelines provide that

[l]ess judicial forbearance is urged for persons violating conditions of a stayed sentence who were convicted of a more severe offense or who had a longer criminal history.

 

Minn. Sent. Guidelines III.B.  The district court's decision to revoke Patterson's probation is supported by his extensive criminal history and prior probation violations.

Even though in this case the record supports a probation revocation, the better practice requires that specific Austin findings be made.  The failure to make the requisite findings invites unnecessary appeals.  The district court judge is ultimately responsible for ensuring that the record contains Austin findings.  But prosecutors and defense attorneys, as officers of the court, should assist with the process by noting what findings are necessary and then arguing the existence or nonexistence of evidentiary support for the findings.

          Affirmed.