State of Minnesota, Respondent, vs. Christopher Boushey, Appellant.

State of Minnesota, Respondent, vs. Christopher Boushey, Appellant. A04-976, Court of Appeals Unpublished, February 8, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-976

 

State of Minnesota,

Respondent,

 

vs.

 

Christopher Boushey,

Appellant.

 

Filed February 8, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Polk County District Court

File No. K0-01-590

 

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)

 

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

 

 

 

            Considered and decided by Shumaker, Presiding Judge; Randall, 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

This is an appeal from an order revoking appellant's probation imposed for two counts of third-degree controlled-substance offense.  Appellant argues that the district court abused its discretion in revoking probation based on a DWI offense without making written findings on the Austin factors and without making any finding that the need for confinement outweighed the policies favoring probation.  Appellant further argues that because he had not received needed chemical-dependency treatment, the policies favoring probation outweighed the need for confinement.  Because we conclude that the district court did not abuse its discretion when it revoked appellant's probation and executed his stayed sentences, we affirm.

FACTS

            On April 24, 2001, the Grand Forks Police Department received information that a package was intercepted and searched by the Grand Forks Drug Task Force before being delivered.  The package contained approximately 20 pounds of marijuana and was addressed to "Mike Diver" in East Grand Forks, Minnesota.  That afternoon, a sheriff's deputy dressed as a deliveryman went to the address listed on the package and asked for Mike Diver.  Appellant answered the door, acknowledged that he was Mike Diver, and accepted the package.  Appellant was subsequently arrested and identified as Chris Boushey.  The police then searched the apartment and found drug paraphernalia.

 

 

            On June 25, 2001, appellant pleaded guilty under a plea agreement to two counts of controlled-substance crime in the third-degree and one count of possession of drug paraphernalia.  He was sentenced to two concurrent 48-month sentences and placed on probation for 15 years, with the execution of both sentences stayed.  The probationary terms ordered by the court included that appellant: (1) serve 240 days in jail and pay a fine; (2) undergo chemical-dependency assessment and follow any recommendations; (3) refrain from any use or possession of alcohol or controlled substances; (4) refrain from entering any bar or places that serve alcohol as a primary activity; (5) submit to random drug-testing and searches; and (6) remain law-abiding.

            On December 30, 2001, appellant admitted to consuming alcohol and was cited for minor in possession of alcohol as a result.  He failed to complete an updated chemical-dependency evaluation as part of his probation restructuring and was charged with violating his probation.  Appellant subsequently completed the chemical-dependency evaluation and the probation office withdrew this violation.

            On November 18, 2003, the Tri-County Community Corrections Department (TCCCD) filed a second probation-violation report against appellant.  This report charged that appellant had violated his probation by consuming alcohol at a party on October 25, 2003.  On November 24, 2003, appellant admitted that he violated the terms of his probation. 

            On February 2, 2004, the TCCCD filed a third probation-violation report, after appellant was arrested and charged with fourth-degree DWI, driving after suspension, and open-bottle violation.  The report indicated that appellant had a poor attitude and did not take probation seriously.  The agent recommended that the court execute the sentence.

            Appellant began evening outpatient chemical-dependency treatment on February 17, 2004.  On March 1, 2004, appellant's probation-violation disposition hearing was held.  The district court executed the remainder of appellant's probationary sentences and also sentenced appellant to serve 30 days concurrently on the fourth-degree DWI conviction.  This appeal followed.

D E C I S I O N

             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).  Likewise, the district court's decision to revoke a stay of sentence will be reversed only if there is a clear abuse of discretion.  State v. Wittenberg, 441 N.W.2d 519, 521 (Minn. App. 1989) (quoting State v. Ehmke, 400 N.W.2d 839, 840 (Minn. App. 1987)). 

              The district court must engage in a three-step analysis before probation can be revoked: (1) designate the specific condition that was violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation.  Austin, 295 N.W.2d at 250.  The decision to revoke probation 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 antisocial activity.  Id. at 251 (quoting United States v. Reed, 573 F.2d 1020, 1024 (8th Cir. 1978)) (quotation omitted).

            Appellant argues that the revocation of his probation was an inappropriate sanction under the Austin analysis.  But appellant violated two specific conditions of his probation three times, one of them on two occasions.  He admitted to consuming alcohol on December 30, 2001, and again on October 25, 2003.  And on February 2, 2004, he was charged with a fourth-degree DWI.  The district court correctly designated the specific probation conditions that appellant violated, and appellant does not contest that these violations were intentional and willful.  Therefore, the first two prongs of the Austin analysis have been satisfied.

            Appellant argues that the district court could not have found that the need for confinement outweighed the policies favoring probation.  But failure to follow the court's order despite repeated warnings indicates that probation is not succeeding.  State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), review denied (Minn. July 10, 1995).  Revocation of a stayed sentence is justified when, "[d]espite prior use of expanded and more onerous conditions of a stayed sentence, the offender persists in violating conditions of the stay."  State v. Hamilton, 646 N.W.2d 915, 918 (Minn. App. 2002)  (quoting Minn. Sent. Guidelines III.B.). 

            Here, appellant repeatedly violated the conditions of his probation.  He admitted drinking alcohol on several occasions and was arrested for a DWI on February 2, 2004.[1]  Appellant was warned that his sentences would be executed if he continued to violate his probation.  The record contains sufficient evidence to find that the need for confinement outweighed the policies favoring probation. 

            Finally, appellant argues that the district court abused its discretion by failing to make either written or oral findings on the third prong of the Austin analysis.  Generally, the district court's failure to make express findings on the Austin factors is not an abuse of discretion where the record contains sufficient evidence to warrant the revocation. Theel, 532 N.W.2d at 267.  But this court has occasionally refused to examine the record when the findings are not explicit.  See State v. Balma, 549 N.W.2d 102, 105 (Minn. App. 1996) (stating that this court will not search for evidence when the district court has failed to provide an adequate record for appellate review); see also State v. Hlavac, 540 N.W.2d 551, 553 (Minn. App. 1995) (holding that this court will not search the record to determine whether sufficient evidence supported the revocation of a stay of execution of sentence).  But even when this court has refused to search the record for evidence, it has acknowledged the "sufficient evidence" exception.  Balma, 549 N.W.2d at 105; Hlavac, 540 N.W.2d at 553.  Even when the district court has failed to make the three Austin findings, the reviewing court may nevertheless affirm the district court's revocation of a stayed sentence provided that there is sufficient evidence in the record to support the necessary findings.  Balma, 549 N.W.2d at 105; Hlavac, 540 N.W.2d at 552-53.  The lack of explicit findings is not an abuse of discretion when the decision to revoke probation is supported by ample evidence in the record.  Hamilton, 646 N.W.2d at 918. 

            In this case, sufficient evidence existed in the record to satisfy the third prong of the Austin analysis.  Three separate probation-violation reports had been filed.  Notations had been made about appellant's "poor attitude" and references to the fact that he was not taking probation seriously were included in these reports.  Additionally, appellant was warned that if this pattern of behavior continued execution of the sentence would be recommended.  Therefore, even though the findings in support of the third factor were not explicit, the district court did not abuse its discretion when it revoked appellant's probation and executed the sentences. 

            Affirmed.

[1] Appellant contends that chemical-dependency treatment was needed and never received and that his probation should be reinstated so he can complete treatment.  But appellant had two chemical-dependency evaluations and could have enrolled in treatment at any time.  It was only after appellant's final arrest that he chose to enroll in treatment.