State of Minnesota, Respondent, vs. Saif Islam Dali, 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This opinion will be unpublished and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

A04-639

 

State of Minnesota,
Respondent,
 
vs.
 
Saif Islam Dali,
Appellant.

 

Filed December 28, 2004

Affirmed

Minge, Judge

 

Olmsted County District Court

File No. K8-03-868

 

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

 

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, Emerald Gratz, Certified Student Attorney, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Schumacher, Presiding Judge; Minge, Judge; and Forsberg, Judge.*

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

            Appellant challenges the revocation of his probation and execution of his sentence.  Because we find that the district court was not required to make an explicit finding that the need for confinement outweighs policies favoring probation and because the record supports the conclusion of the district court, we affirm.  

FACTS

 

On February 28, 2003, at approximately 12:15 a.m., an officer observed appellant, Saif Islam Dali, driving a vehicle that crossed the fog line twice.  The officer ran a license plate check and discovered that the vehicle had been impounded because of alcohol offenses.  The officer turned on his overhead lights to pull appellant over.  Appellant did not stop but sped away, running a stop sign.  Subsequently, two officers apprehended appellant at his residence, and after smelling alcohol on his breath, gave him a preliminary breath test.  The test result showed an alcohol concentration level of only .025.  Appellant was arrested for fleeing an officer and taken to the station.  When asked to give a blood, urine, or breath sample pursuant to the implied consent requirement, appellant refused by stating that he had already submitted to the preliminary breath test. 

On March 25, 2003, after three other charges were dismissed, appellant pleaded guilty to charges of first-degree refusal to submit to testing, fleeing a police officer, and driving after cancellation of his driver's license.  The district court ordered a pre-sentence investigation, which showed that appellant had been diagnosed with and treated for chemical dependency in 2000 and 2001.  Although appellant did not successfully complete a treatment program in 2000, he successfully completed a program in 2001.  Prior to this arrest, appellant had three impaired driving incidents, all since 1999, and his driver's license had been cancelled.  In the pre-sentence investigation, appellant denied that he had a problem with alcohol and stated that his only problem was making bad decisions while driving.  Appellant was on probation at the time for misdemeanor assault and disorderly conduct convictions.     

On May 12, 2003, a sentencing hearing was held for appellant.  At the hearing, the district court noted that there was little point of chemical dependency treatment for a person who had been through the program and had a Breathalyzer test of .025.  The pre-sentence investigator and the district court discussed whether inpatient chemical dependency treatment was feasible when appellant had not had a drink in 30 days and did not think he had a problem.  Appellant's lawyer stated that appellant believed he had his alcohol use under control and that appellant did not believe additional treatment was warranted.  Appellant stated that he realized the consequences of what he had done and that he would never make the same types of mistakes again.  The district court warned appellant that if he violated the conditions of his probation he would go to prison.  The district court also directly addressed appellant, stating, "you simply can't drive without a license, and if you do have a license, with your record you simply can't be drinking, right?  So hopefully, like you say, you won't make that set of mistakes again."

            The district court sentenced the appellant as follows: for fleeing a police officer, stayed imposition of the twelve-month and one day sentence for three years, placed appellant on probation and required 180 days to be served in the county jail; for first-degree refusal to submit to testing, sentenced appellant to 36 months, with the sentence stayed for seven years, and placed him on probation for seven years; and for driving after cancellation, required 90 days to be served in county jail, served concurrently with the 180 days for fleeing a police officer.  Some of the terms and conditions of probation included not driving a motor vehicle unless properly licensed and insured; not using alcohol or mood-altering chemicals; submitting to random testing; and not entering bars, liquor stores, or any setting in which alcohol or controlled substances are present.  

            Appellant violated the conditions of his parole on two occasions.  On December 2, 2003, appellant was found drinking at Bon's, and his alcohol level was measured at .034.  His probation officer told him he was giving him a break, but he was one drink away from prison.  On January 10, 2004, appellant was drinking at the Aquarius Club, and police were called after he became involved in a dispute with a cab driver.  The probation officer recommended that appellant's sentence be executed. 

            A hearing to address the probation violations was held on January 14, 2004, before the same judge who had sentenced appellant in May.  Appellant stated he understood he had a right to an attorney and waived his right to a contested hearing.  Appellant indicated he understood he was not allowed to consume alcohol or enter a bar as part of his probation and admitted to consuming alcohol and entering bars on two occasions.  The probation officer stated that a stay of execution is a last chance for a defendant.   After picking appellant up for the first drinking incident on December 2, 2003, the probation officer stated he told appellant that "he's one drink away from being sent to prison" and appellant still continued to drink.  Appellant stated that he is "still drinking generally for some reason[.]" 

            The court again considered treatment and was told the appellant had completed treatment a few years ago.  Although the district court initially thought he had ordered treatment at the sentencing hearing, he was told that treatment was not a condition of the sentencing.  Appellant stated that he had just talked to a chemical dependency counselor who told him that he had to get treatment and that he now wanted to go to treatment instead of having his stayed sentence executed.  The district court stated that treatment has not worked and that "this has been going on now for what, four or five years now according to [the probation officer], and you continue to drink."  After revoking the stay of execution, the district court stated he had no alternative because appellant had "been given chance after chance after chance, and [appellant] keep[s] screwing up.  I can't take the chance that [appellant is] going to kill somebody in a car."  The district court issued a written order revoking the stay and executing the sentence on January 15, 2004.  

D E C I S I O N

 

The issue we face is whether the district court is required to explicitly find that the need for confinement outweighs the policies favoring probation.  Appellant argues that the district court erred by not making such a finding in this case.  Appellant further argues that even if the district court was not required to explicitly make such a finding, the record would not support that finding. 

"The trial 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).  Prior to revoking probation, the trial court must engage in a three-step analysis: 1) identify the specific conditions that were violated; 2) find the violation was intentional; and 3) find that the need for confinement outweighs the policies favoring probation.  Id. at 250. 

I.

The first issue is whether the district court was required to make an explicit finding on the third Austin factor that the need to confine the appellant outweighs the policies favoring probation.  Appellant concedes that the first two steps of the Austin test are met because appellant admitted that he knew he was not allowed to enter a bar or consume alcohol and he intentionally did so.  However, appellant argues that in certain situations the court must make explicit findings regarding the Austin factors.

The general rule is that if a trial court fails to make the Austin findings explicitly, an appellate court may affirm the trial court's revocation of a stayed sentence if there is sufficient evidence in the record to support the necessary findings.  State v. Balma, 549 N.W.2d 102, 105 (Minn. App. 1996); State v. Hlavac, 540 N.W.2d 551, 552-53 (Minn. App. 1995); State v. Hamilton, 646 N.W.2d 915, 918 (Minn. App. 2002), review denied (Minn. Sept. 25, 2002) ("While we would prefer that the district court make explicit findings on each element articulated in Austin, we conclude on this record that the district court's decision to revoke Hamilton's probation was amply supported by evidence and was not an abuse of discretion").   

In limited circumstances, reviewing courts have declined to examine the record for support for probation revocation when there are no specific Austin findings.  For example, when a defendant explicitly questioned the sufficiency of the evidence at the probation revocation hearing or when the record contained no findings, the appellate courts have refused to examine the record and remanded.  Balma, 549 N.W.2d at 105; Hlavac, 540 N.W.2d at 552-53.

            Here, neither of the situations in which reviewing courts have required explicit findings is present.  Unlike in Hlavac, appellant did not specifically raise the issue of an Austin deficiency in the district court.  Nor is the present case like Balma where the record was entirely devoid of findings that the need for confinement outweighs the policies favoring probation.   Here, the district court found that the need for confinement outweighs probation by stating in the revocation of probation hearing that appellant had been given chance after chance, but continued to drink and drive, so the district court could not take the chance that appellant would kill somebody in a car. 

II.

            The second issue is whether there is sufficient evidence in the record to support a finding that the third Austin factor, the need for confinement outweighs the policies favoring probation, is met.  Appellant contends that by ordering imprisonment rather than allowing appellant to seek treatment, the district court abused its discretion with regard to the third Austin factor.  "The purpose of probation is rehabilitation, and revocation should be used only as a last resort when treatment has failed."  Austin, 295 N.W.2d at 250.  With regard to the third Austin factor, a court can revoke probation and order imprisonment if the court finds that "confinement is necessary to protect the public from further criminal activity by the offender[.]"  Id. at 251 (quotation omitted).

The record shows that it is reasonable to find that confinement furthered public safety.  The district court judge specifically stated that he was imposing the prison sentence in order to protect the public safety.  He told appellant, "You've been given chance after chance after chance, and you keep screwing up.  I can't take the chance that you're going to kill somebody in a car."  Together with appellant's record of three prior incidents related to driving while impaired in less than five years, this statement shows the district court reasonably decided that confinement was necessary to protect the public safety.  Less judicial forbearance in revoking a stayed sentence is urged for those who have a longer criminal history.  Hamilton, 646 N.W.2d at 918.  The danger appellant posed to the public demonstrates a need for confinement.

Additionally, a repeated failure to abide by the conditions of probation may provide a sufficient basis for a court to find an unwillingness to be rehabilitated and, therefore, that the need for confinement outweighs policies favoring probation.  Austin, 295 N.W.2d at 250.  Failure to follow a court's order despite repeated warnings may indicate that the probation is not succeeding.  Theel, 532 N.W.2d at 267. At the sentencing hearing, appellant was warned by the district court that he could not make this type of mistake again or he would go to prison.  The probation officer also warned appellant after he was caught drinking on December 2, 2002, "he's one drink away from being sent to prison[.]"  Despite these warnings, appellant continued to drink.  The district court did not abuse its discretion because appellant did not show the likelihood of reform that supports the policy of probation. 

Appellant asserts he should have been given an opportunity for treatment as opposed to incarceration.  The district court and the pre-sentence investigator discussed in-patient treatment and thought that appellant would not be approved based on lack of recent alcohol use and appellant's denial of a substance abuse problem.  The district court also questioned the efficacy of treatment for a person who had already undergone treatment twice and had a low alcohol concentration level when arrested.  Appellant stated that he did not have a problem with drinking, just with bad driving decisions.  At the sentencing hearing, appellant promised that he would not make the same mistakes again and that treatment was not necessary.  Although there was some confusion in the district court's comments at the probation revocation hearing, it did not undermine the fairness of the process.  The district court did not accidentally forget to assign treatment or arbitrarily deny treatment.  Rather, the district court assessed the likelihood of successful treatment and decided not to order it for someone who denied a problem and claimed his drinking was under control.  The district court was within its discretion to believe that treatment had not worked because appellant had been having legal problems related to drinking for several years and yet continued to drink.

Affirmed.

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