State of Minnesota, Respondent, vs. Juan Cervantes Ramirez, Appellant.

State of Minnesota, Respondent, vs. Juan Cervantes Ramirez, Appellant. A06-2337, Court of Appeals Unpublished Decision, December 18, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2337

 

State of Minnesota,
Respondent,
 
vs.
 
Juan Cervantes Ramirez,
Appellant.

 

Filed December 18, 2007

Affirmed

Kalitowski, Judge

 

 Anoka County District Court

File No. K0-05-9963

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 540 Fairview Avenue North, Suite 300, St. Paul, MN 55104 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Hudson, Judge. 

 

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant Juan Cervantes Ramirez challenges the district court's revocation of his probation, arguing that it failed to make the required Austin findings that (1) his probation violations were unexcused; and (2) his confinement was necessary.  We affirm. 

D E C I S I O N

I.

            Appellant argues that the district court abused its discretion by revoking his probation.  We disagree.  A district court has broad discretion in determining if sufficient evidence exists to revoke probation.  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980) (citations omitted).  But a district court must make specific findings because "it is not the role of appellate courts to scour the record to determine if sufficient evidence exists to support the district court's revocation."  State v. Modtland, 695 N.W.2d 602, 608 (Minn. 2005).  To revoke probation, a district court must find that (1) a specific condition of probation was violated; (2) the violation was intentional or inexcusable; and (3) given the nature of the violation and the underlying offense, the policy favoring probation is outweighed by the need for confinement.  Austin, 295 N.W.2d at 250.  The findings must be made in writing, but this requirement is satisfied by the district court stating its findings on the record.  Modtland, 695 N.W.2d at 608 n.4 (citing Pearson v. State, 308 Minn. 287, 292, 241 N.W.2d 490, 493 (1976)). 

            Because appellant conceded that he violated specific conditions of his probation, his challenge is limited to (1) if the violations were unexcused; and (2) if his confinement was necessary.  Whether the district court made the proper findings before revoking probation is a question of law reviewable de novo.  Modtland, 695 N.W.2d at 605.  And a probation revocation is reversible if the district court clearly abused its discretion.  Austin, 295 N.W.2d at 249-50. 

            Appellant was placed on probation after pleading guilty to first-degree driving while impaired in violation of Minn. Stat. §§ 169 A. 20, subd. 1(1) (2004), .24, subd. 1 (2004).  Appellant failed to report to the corrections department after sentencing, although he did call.  Four months into his probation appellant was stopped while driving without a license and with alcohol in the vehicle.  The police report stated that the officer believed appellant had been drinking.  Appellant was taken into custody for violating the terms of his probation. 

            Appellant waived his right to a probation-revocation hearing at which the state would have had to show his violations by clear and convincing evidence.  And appellant admitted that he violated the terms of his probation because (1) he did not complete Project Save; (2) he did not complete a chemical-dependency evaluation; and (3) he did not obey the rules of probation.

            Appellant argues that the district court's finding that his violations were unexcused was an abuse of its discretion.  We disagree.  For a violation to be excusable there must be "extenuating circumstances."  State v. Johnson, 679 N.W.2d 169, 177 (Minn. App. 2004).  Appellant's explanations were insufficient to excuse his violations.  He claimed he did not report because (1) although he never reported, he did call; (2) he was given "only" a week to report; (3) he did not have transportation to report; (4) he was looking for a job; and (5) he was not told when to report.  In addition to being insufficient, appellant's explanations are contradictory.  If he knew when to call and complained about the one-week deadline for reporting, he knew when to report.  And if he was able to find transportation to look for a job, then he could have had transportation to report.  Appellant did not offer any explanation for violating the law by driving without a license.  Because his explanations were insufficient, the district court's finding that appellant's violations were unexcused was not an abuse of its discretion.

            Appellant complains that the district court found an "unexcused violation" of probation before listening to his explanations.  But Modtland prohibits revoking probation before the district court makes all three Austin findings.  Modtland, 695 N.W.2d at 607.  And here the district court did not revoke appellant's probation until the conclusion of the hearing when it concluded it was necessary to confine appellant. 

            Appellant also argues that this Austin finding was insufficient because the district court stated there had been "an unexcused violation" of his probation without specifying the violation.  We disagree.  Although we would prefer a more specific finding, we conclude that on this record the finding was sufficient because it was in response to appellant's admission that he had not followed the rules of probation. 

            Appellant argues that the record does not support the court's findings that the need for confinement outweighed the policy favoring probation.  We disagree.  "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 251 (quotations and citation omitted).  A disposition revoking probation followed by imprisonment is warranted if "confinement is necessary to protect the public from further criminal activity by the offender . . . ."  Modtland, 695 N.W.2d at 607.

            This offense was appellant's fifth DWI conviction in six years.  And after the offense was committed, but while its disposition was pending, appellant was placed on probation for a second felony DWI in another county.  Although appellant now argues that this revocation was based upon "alleged conduct," the record indicates that he waived his right to a probation-revocation hearing.  Thus, appellant did not contest that an officer found him in violation of his probation while driving without a license and with alcohol in the vehicle.  On this record, we cannot say the district court erred in finding that "the interest of society in keeping [appellant] off the streets and public safety outweighs any benefits of probation."

            Affirmed.