State of Minnesota, Respondent, vs. Anthony Wayne Carman, Appellant.

State of Minnesota, Respondent, vs. Anthony Wayne Carman, Appellant. A05-2494, Court of Appeals Unpublished, November 21, 2006.

This opinion will be unpublished and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

A05-2494

 

State of Minnesota,

Respondent,

 

vs.

 

Anthony Wayne Carman,

Appellant.

 

Filed November 21, 2006

Reversed and remanded Hudson, Judge

 

Olmsted County District Court

File No. K8-01-3989

 

 

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

 

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

 

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

 

            Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant Anthony Carman challenges the district court's order revoking his probation.  Appellant argues that the district court erred by not making the findings required by State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980), and abused its discretion when it found that the need for confinement outweighed the policies favoring probation.  In his pro se supplemental brief, appellant urges this court to consider various letters reflecting his correspondence with two treatment programs.  He also argues that certain statements in respondent's brief mischaracterize the facts, in violation of Minn. R. Civ. App. P. 128.02, subds. 1(c), 2.  Appellant's pro se arguments lack merit, but because the district court's probation-related findings are insufficient to permit meaningful appellate review, we reverse and remand. 

FACTS

            In June 2002, appellant Anthony Carman pleaded guilty to multiple counts of kidnapping and burglary in violation of Minn. Stat. §§ 609.05, subds. 12, .11, subd. 5(a), .25, subds. 1(2)(3), 2(1), and .582, subd. 1(b) (2002).  The district court sentenced appellant to 180 months' imprisonment but stayed execution for a period of 20 years and placed appellant on probation under the following terms:  (1) abstain from all mood-altering chemicals and alcohol; (2) refrain from entering establishments whose primary purpose is the sale or serving of alcohol; (3) have no association with persons known to be involved in the use, sale, or distribution of drugs; and (4) remain law abiding.  The district court also ordered appellant to serve one year in the county jail.  This sentence was a downward dispositional departure from the presumptive guidelines sentence.

            In February 2004, appellant's probation officer issued a violation report because appellant had tested positive for cocaine; admitted to drinking alcohol and entering a bar; associated with persons known to be involved in the use, sale, or distribution of drugs; and was arrested for burglary, damage to property, and interfering with a 911 call.  The violation report recommended revoking appellant's probation. 

            At the probation-violation hearing, appellant admitted that he had violated the conditions of his probation.  Consequently, the district court revoked appellant's probation and executed his sentence.  On direct appeal, appellant argued that the district court abused its discretion by not making an explicit finding regarding why the need for confinement outweighed the policies favoring probation.  Despite the lack of findings, this court affirmed the district court, reasoning that there was sufficient evidence in the record to support a finding that the need for confinement outweighed the policies favoring probation.  State v. Carman, No. A04-966 (Minn. App. Jan. 11, 2005), rev'd mem., 696 N.W.2d 789 (Minn. 2005).  The supreme court granted appellant's petition for further review and stayed all proceedings pending final disposition in State v. Modtland, 695 N.W.2d 602 (Minn. 2005).  After the Modtland opinion was released, the supreme court reversed this court's decision and remanded the case to the district court for a new decision on probation revocation consistent with its holding in Modtland.  State v. Carman, 696 N.W.2d at 789.

            On remand, appellant testified that while he had never entered treatment, he had been actively seeking treatment but could not afford it.  Appellant's probation officer testified that since appellant's release from the county jail, he had not expressed a desire for treatment until "he was arrested and was going to be brought before the court on a violation."

            Ultimately, the district court affirmed its previous order revoking appellant's probation and executing his sentence.  But this time the district court found that appellant had violated his conditions of probation; the violations were intentional and inexcusable; and the need for confinement outweighed the policy favoring probation.  In support of the last finding, the district court also found that:  (1) appellant had exhausted all of his community resources; (2) confinement was necessary to protect the public from further criminal activity by appellant; and (3) commitment to prison was necessary so as to not unduly depreciate the seriousness of the violation if probation were not revoked.  This appeal follows.

D E C I S I O N

            Once again, appellant argues that the district court did not make an explicit finding regarding why the need for confinement outweighed the policies favoring probation, as required by Austin.[1]  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 discretion."  State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005) (quoting State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980)).  However, whether the district court has made sufficient findings before revoking probation "presents a question of law, which is subject to de novo review."  Id.

            Before revoking a defendant's 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 the need for confinement outweighs the policies favoring probation.  Austin, 295 N.W.2d at 250.  These findings must be made on the record before revoking probation.  Modtland, 695 N.W.2d at 606.  However, "courts should not assume that they have satisfied Austin by reciting the three factors and offering general, non-specific reasons for revocation."  Id. at 608.  To the contrary, courts "must seek to convey their substantive reasons for revocation and the evidence relied upon."  Id.  This requirement "assures that district court judges will create thorough, fact-specific records setting forth their reasons for revoking probation . . . as 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."  Id. 

            A careful examination of the record reveals that the district court failed to articulate the specific evidence it relied upon when making the third Austin finding.  The district court merely recited the three Austin factors and offered "general, non-specific reasons for revocation."  Id.  In support of the third Austin finding that the need for confinement outweighed the policies favoring probation, the district court found that:  (1) appellant had exhausted all community resources; (2) appellant's violations were serious and commitment to prison was necessary to protect the public from further criminal activity by appellant; and (3) commitment was necessary so as to not unduly depreciate the seriousness of the violation if probation was not revoked.  But these findings do not comport with Modtland because they fail to convey the "evidence relied upon."  Id.  Thus, they are insufficient to permit meaningful appellate review. 

            In Modtland the supreme court stated that the "purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed."  Id. at 606.  Here, the district court's finding that appellant had "exhausted all of his community resources" is presumably aimed at demonstrating that treatment had failed.  But the district court failed to analyze the record evidence or otherwise articulate any evidentiary support for this conclusion, even though the record contains ample testimony from both parties concerning appellant's effortsor lack thereofin securing chemical-dependency treatment. 

The district court's remaining findings are likewise insufficient to permit meaningful appellate review.  In Austin the supreme court stated that when determining whether the need for confinement outweighs the policies favoring probation, the district court should refer to the following:  "Revocation followed by imprisonment should not be the disposition . . . unless the court finds that . . . confinement is necessary to protect the public from further criminal activity by offender; or . . . it would unduly depreciate the seriousness of the violation if probation were not revoked."  295 N.W.2d 246, 25051 (Minn. 1980) (citing ABA Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft 1970)).  Although the court made these findings on the record, it failed to identify and analyze the record evidence to support those findings. 

            We reject appellant's pro se claims as without merit.  His correspondence with the two treatment programs was not presented to the district court and therefore we will not consider it here on appeal.  See State v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2001) (stricken matter not part of the record on appeal).  And after reviewing respondent's brief, we conclude that respondent has not mischaracterized the facts.  But because the district court failed to create a "thorough fact-specific" record setting forth its reasons for revocation, thus prohibiting meaningful appellate review, its findings are insufficient as a matter of law to support revoking appellant's probation.  Accordingly, we reverse and remand for proceedings consistent with this opinion.  The decision whether to reopen the record on remand rests within the district court's sound discretion.

            Reversed and remanded.

[1] Appellant concedes that he violated the terms of his probation and that those violations were intentional and willful, thus the first two Austin factors outlined below are not in dispute.