State of Minnesota, Respondent, vs. Robert Burton Behr, Appellant.

State of Minnesota, Respondent, vs. Robert Burton Behr, Appellant. A05-338, Court of Appeals Unpublished, October 25, 2005.

This opinion will be unpublished and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

A05-338

 

State of Minnesota,

Respondent,

 

vs.

 

Robert Burton Behr,

Appellant.

 

Filed October 25, 2005

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 030009499

 

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

 

Amy Klobuchar, Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

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

 

            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Robert Burton Behr challenges the district court's revocation of his probation, arguing that the district court abused its discretion by (1) ignoring his conduct since the first revocation hearing; and (2) improperly basing the revocation on his failure to attend treatment.  We affirm.

D E C I S I O N

 

A 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 state has the burden of proving the probation violation by clear and convincing evidence.  Minn. R. Crim. P. 27.04, subd. 3.  When revoking probation, the district court must:  "1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that need for confinement outweighs the policies favoring probation."  Austin, 295 N.W.2d at 250.  The third factor is satisfied if:

(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.  "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 (quotations omitted).

Here, appellant pleaded guilty to one count of first-degree driving while impaired.  The district court sentenced him to 42 months and stayed the execution for five years.  The conditions of appellant's probation included that he serve 180 days in the workhouse and that he refrain from using alcohol.  In January 2004, appellant appeared before the district court at a probation revocation hearing.  The court revoked appellant's probation after finding that appellant violated his probation by testing positive for alcohol on two occasions and by not attending a treatment program.  Appellant appealed and this court reversed and remanded, concluding that appellant's failure to attend treatment could not support the probation revocation because treatment was not a probation condition.

On remand, the district court revoked appellant's probation based on his drinking violations.  Appellant argues that the district court abused its discretion in light of the third Austin factor by revoking his probation in light of his recent behavior and by again improperly relying on his failure to attend treatment.  Appellant does not contest that he intentionally violated the conditions of his probation by consuming alcohol on two occasions.

Appellant argues that the district court abused its discretion by revoking his probation based on his two probation violations and by not giving greater weight to appellant's behavior after the initial revocation hearing.  Although the district court order does not refer to appellant's posthearing actions, the court concluded that appellant's past conduct provided a sufficient basis to revoke his probation.  The district court considered the third Austin factor in light of appellant's criminal history and probation violations and found that appellant is a risk to public safety and probation conditions cannot protect the public.  The record shows that appellant has accumulated five DWIs, four in the past ten years, and his blood alcohol level registered 0.31 for his most recent offense.  Additionally, appellant continued using alcohol while under the supervision of corrections officers, twice violating his probation.  In light of appellant's probation violations and history, we conclude that the district court did not abuse its discretion when it revoked appellant's probation.

We reject appellant's argument that the district court again improperly relied on the fact that appellant did not attend treatment during probation.  At the second revocation hearing, the district court discussed treatment, but expressly refused to revoke appellant's probation based on whether he sought treatment.  Instead, the court found that appellant's extended history of driving while intoxicated and his alcohol consumption while on probation provided a sufficient basis to revoke his probation.  We conclude that the district court did not abuse its discretion by determining that appellant posed a sufficient danger to the public to warrant execution of his sentence.

Finally, we have reviewed the arguments raised in appellant's pro se supplemental brief and find them to be without merit.

Affirmed.