In the Matter of the Welfare of: R.D.W.

In the Matter of the Welfare of: R.D.W. A05-2250, Court of Appeals Unpublished, August 8, 2006.

This opinion will be unpublished and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

A05-2250

 

 

In the Matter of the Welfare of:

R.D.W.

 

Filed August 8, 2006

Affirmed

Parker, Judge*

 

Hennepin County District Court

File No. JX-02-068046

 

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

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent State of Minnesota)

 

Leonardo Castro, Chief Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant R.D.W.)

            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Parker, Judge.

 

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            On appeal from the revocation of his extended juvenile jurisdiction (EJJ) probation and the imposition of his adult sentence, appellant R.D.W. argues that (1) the district court's order does not satisfy the first Austin factor because the conditions of probation he was alleged to have violated were not actually imposed; (2) the district court's order fails to satisfy the remaining Austin factors; (3) the district court's order lacked sufficient findings to permit appellate review; and (4) the alleged probation violations were technical and do not justify revocation.  Because the district court did not abuse discretion in revoking appellant's EJJ probation, we affirm.

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).  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.  Id. at 250. 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 antisocial activity.'"  Id. at 251 (quoting United States v. Reed, 573 F.2d 1020, 1024 (8th Cir. 1978)).

            Here, the notice of violation alleged that appellant violated the terms and conditions of probation by testing positive for the use of controlled substances and failing to stay in contact with his probation officer.  At the revocation hearing, appellant agreed that he tested positive for marijuana and agreed that he failed to maintain contact with his probation officer.  The district court found that appellant knew the allegations against him and admitted them.  Thus, the district court revoked appellant's EJJ probation and ordered the execution of his adult sentence in accordance with the recommendation of the probation office.

            A.         First Austin factor

            Appellant argues that the district court's order fails to satisfy the first Austin factor because the two conditions of probation that he allegedly violated were not specifically imposed as conditions of probation.  In support of his claim, appellant cites State v. Ornelas, which states that "[T]he condition alleged to have been violated must have been a condition actually imposed by the court."  675 N.W.2d 74, 80 (Minn. 2004) (emphasis added).

            The crime for which appellant was sentenced was a burglary committed in 2002.  At the sentencing hearing, the district court ordered that appellant "must follow all rules and recommendations on EJJ probation."  Although the disposition order does not specifically refer to the requirements that appellant abstain from controlled substances and that he maintain contact with his probation officer, these conditions were expressly stated in the EJJ probation contract signed by appellant and the district court.  The record reflects that appellant violated the terms and conditions of his probation five times.  Due to his repeated probation violations, appellant signed numerous EJJ probation contracts, each ordering that appellant abstain from controlled substances and that he maintain contact with his probation officer.  Moreover, appellant already has received intermediate consequences in earlier revocation proceedings for failure to abide by the consequences set forth in the EJJ probation contracts, indicating that these terms were specifically imposed by the district court.

            Appellant argues that because the conditions of probation that he abstain from controlled substances and that he maintain contact with his probation officer were not orally ordered by the district court, there is no indication that these conditions were ever imposed by the court.  We disagree.  There is no requirement that each term and condition of probation be stated on the record.  Rather, due process requires that "individuals be given fair warning of those acts which may lead to a loss of liberty."  Ornelas, 675 N.W.2d at 80.  As noted above, the district court stated on the record at the disposition hearing and again in the written order that appellant must follow all the rules of EJJ probation, and the EJJ contract signed by appellant and the district court expressly stated that, as conditions of his probation, appellant was to maintain contact with his probation officer and abstain from controlled substances.  There is nothing in the record demonstrating that appellant is unable to read the EJJ contract.  Accordingly, appellant violated specific conditions of his probation and the district court's order satisfies the first Austin factor.

            B.         Remaining Austin factors

            Appellant contends that the district court failed to consider the remaining Austin factors.  We disagree.  The district court specifically found that appellant violated the conditions of his probation and that the "violations [were] both intentional and inexcusable."  See Austin, 295 N.W.2d at 250 (stating that the second factor to be considered before revoking probation is whether the violation was "intentional or inexcusable").  Consequently, the district court's order satisfies the second Austin factor.

            The district court also weighed the needs for confinement against the policies favoring probation.  See id.  The district court specifically noted that appellant was put on EJJ probation for "a very serious offense involving weapons"[1] and that even though he was almost an adult when he committed the offense, appellant "was given a rare opportunity to demonstrate that his violent and antisocial behavior could be modified within the juvenile system."  The district court also noted that probation has attempted to facilitate behavior modification through such programs as the After Today program and electronic home monitoring, but these programs have failed as demonstrated by appellant's repeated probation violations.  Although the district court further noted that it would not base its findings on appellant's prior violations, the court stated that it should not "wear blinders and not recognize that [appellant] has been given numerous opportunities to embrace the ‘last chance' that EJJ provides."  The district court concluded that appellant has consistently failed to maintain contact with probation and continues to use controlled substances, demonstrating that appellant has not taken the opportunity to rehabilitate seriously.  Thus, the district court concluded that "incarceration does outweigh the policies that favor probation."

            Appellant argues that in balancing the needs for confinement against the policies favoring probation, the district court failed to consider mitigating factors such as his completion of the Glenn Mills program and the After Today program, the fact that he obtained employment and saved enough money to rent an apartment in south Minneapolis, and that he did not become involved in further criminal activity.  But the record reflects that the district court considered these mitigating factors.  In considering the progress appellant made while on probation, the district court stated on the record that:

You go through periods of time where you make a decision that you were going to do the best you can.  You worked a job, it was a good job.  You did a good job while you were there by all accounts.  You saved money.  You got an apartment.  Then you go through periods of time where you do whatever you feel like you want to do.

 

            The problem with being on probation, especially EJJ probation, is that you don't just get to blow it off.  You don't just get to say, I tried for three months, now I'll do whatever I want for three months . . . .

 

The district court also specifically referred to the programs appellant completed, but concluded that after three years of probation, he was consistently unable to comply with the terms of his probation.  Thus, the third Austin factor is satisfied because the district court properly considered the mitigating factors in balancing the needs for confinement against the policies favoring probation.

            C.        Findings

            Appellant argues that the district court's revocation order lacked sufficient findings to permit appellate review.  In support of his claim, appellant asserts that the only facts contained in the court's findings are in the statement that the state "offered facts sufficient to support a finding that he failed to maintain contact with his probation officer for three months from June 2005 to September 2005, and that he tested positive for marijuana while on probation."  Appellant further argues that the district court's findings failed to adequately address the third Austin factor.

            Minnesota law provides that following a contested probation revocation hearing, the district court "shall make written findings of fact on all disputed issues including a summary of the evidence relied upon and a statement of the court's reasons for its determination."  Minn. R. Crim. P. 27.04, subd. 3(4) (emphasis added).  Here, appellant did not dispute the allegations against him, but rather he admitted testing positive for marijuana and failing to maintain contact with his probation officer.  Moreover, as addressed above, the district court discussed the third Austin factor extensively.  Consequently, the district court's findings that appellant admitted the allegations against him are sufficient to confirm that the alleged violations occurred.

            D.        Technical violations

            Finally, appellant argues that because the district court revoked his probation four days before his 21st birthday, and because his probation violations were only technical violations, the district court erred in revoking his probation.  In support of his claim, appellant cites State v. B.Y., in which the supreme court stated that "[t]he 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 antisocial activity.'"  659 N.W.2d 763, 772 (Minn. 2003) (quoting Austin, 295 N.W.2d at 251).

            Appellant's probation violations were more than simply technical violations.  Maintaining contact with one's probation officer is the essence of probation and appellant failed to maintain contact with his probation officer for three months.  Appellant was also required to abstain from mood-altering chemicals, but the record reflects that he tested positive for controlled substances on nine different occasions.  Although appellant highlights the fact that his EJJ probation was revoked four days before his 21st birthday, the record is clear that he had been on probation for three years and the district court bent over backwards to keep him on probation.  Appellant simply violated his probation too many times.  We conclude that the district court did not abuse discretion in revoking appellant's EJJ probation.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] In committing the burglary, appellant used a knife to assault the occupants.