State of Minnesota, Respondent, vs. Deandre Marcel Smith, Appellant.

State of Minnesota, Respondent, vs. Deandre Marcel Smith, Appellant. A06-64, Court of Appeals Unpublished, January 23, 2007.

This opinion will be unpublished and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

A06-64

 

State of Minnesota,

Respondent,

 

vs.

 

Deandre Marcel Smith,

Appellant.

 

Filed January 23, 2007

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. 04068578

 

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

 

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

 

John M. Stuart, State Public Defender, Stephen L. Smith, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

            Considered and decided by Halbrooks, Presiding Judge; Stoneburner, Judge; and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant challenges the district court's decision to revoke appellant's probation and to execute his sentences to run concurrently.  Appellant argues that the district court abused its discretion by revoking and executing appellant's sentence, because he contends that the violation was not proven by clear and convincing evidence and that the need for confinement did not outweigh the policies favoring probation.  We affirm.

FACTS

            Appellant Deandre Marcel Smith pleaded guilty on January 6, 2005, pursuant to a plea bargain, to third-degree burglary in violation of Minn. Stat. § 609.582, subd. 3 (2004).  As part of the plea bargain, appellant agreed to both a dispositional and durational departure.  He agreed to an upward departure of 48 months and a stay of execution with three years probation.  Appellant was already on probation for two other first-degree burglary charges. 

            As part of his probation, appellant was instructed to complete the chemical dependency program at the Eden Men's Program, complete the aftercare program, submit to random UA analysis, meet with his probation officer, and remain law abiding.  During the revocation hearing, appellant's probation officer testified that appellant failed to appear for a scheduled appointment on July 27, 2005, and that he did not respond to a message that she left him.  And although appellant graduated from the primary care at Eden, he failed to complete the aftercare program.  Also, appellant received a citation for driving without a license in July of 2005.  Appellant had clean UAs. 

            On October 6 and 11, 2005, respondent asked the district court to revoke appellant's probation for failing to complete aftercare, failing to complete halfway house placement, failing to report to his probation officer, and failing to remain law abiding.  At the Morrissey hearing and revocation, the state presented evidence of another burglary, or at the very least, possession of stolen property by appellant.  The state presented testimony from employees of the pawn shop in which the stolen goods, which included over $500 of electronics stolen from a home during the night, were later found by tracking the serial number.  The pawn shop employees stated that their customary practice and store policy is to check the photo identification of any individual seeking to pawn items in the store.  They also require a signature from that individual.  Appellant's name appeared on the pawn slip.  Testimony from the victim of the thefts describing the items that had been taken is also included in the record.

            Appellant appeared in court, arguing that respondent did not prove the violations of probation by clear and convincing evidence and that the need for confinement did not outweigh the policies favoring probation.  The district court found that clear and convincing evidence demonstrated that appellant committed each of the alleged violations, that the violations were intentional and inexcusable, and that the need for confinement outweighed the policies favoring probation.  The district court stated that if it did not revoke appellant's probation, the seriousness of the violation would be depreciated.  Consequently, the district court revoked appellant's probation and executed his sentences to run concurrently.  This appeal followed. 

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).  Whether the district
court made the proper findings before revoking probation is a legal question subject to de novo review.  State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005). 

            The district court must consider three factors on the record before revoking probation.  Id. at 607.  Specifically, 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.

            Here the district court satisfied all three factors before it revoked probation.  The district court addressed the first Austinfactor, which requires that it designate the specific condition or conditions that were violated.  Id. The district court found that appellant violated his probation in three regards: (1) appellant failed to complete aftercare and the halfway house program; (2) appellant failed to report as directed to his probation officer; and (3) appellant failed to remain law abiding.  The district court found that the "State has proved by clear and convincing evidence that [appellant] has continued to participate in, if not burglary, receiving stolen property." 

Appellant argues that the state did not prove by clear and convincing evidence that appellant failed to abide by the law and thereby violated his probation.  Appellant contends that the witnesses called by the state could not identify appellant as the person that pawned the stolen items, and thus, the state could not prove that it was appellant that pawned the stolen property.  However, the record shows that it was the practice of the two pawn store employees (and store policy) to require potential customers to produce photo identification before completing the exchange.  In addition to providing identification, the individual is required to sign the pawn slip.  Here, the pawn slip for the stolen items reflected that appellant was the individual who had pawned those items; appellant's name was signed on the pawn slip.         

Appellant asserts that the state should have produced the pawn store's video surveillance tape of the day in question.  However, the sergeant assigned to the case testified that he had been informed that the tape did not exist.  The owner of the pawn shop tried to assist the sergeant in finding the tape, but the owner found that "apparently an employee had not turned on the video equipment immediately upon opening the business.  Therefore, when the transaction pawn was made, that was not caught on video."  The record supports the district court's findings, and the district court did not clearly abuse its discretion in evaluating the first factor.

            The second Austinfactor requires the district court to find that appellant's violation of probation was intentional or inexcusable. Id.  Here the district court found that "the violation was intentional and inexcusable."  The judge stated: "I think I made it clear to [appellant] . . . that I was not going to tolerate any further criminal activity on his part.  I've bent over backwards and departed putting him on probation for a third felony violation while he was already on probation for two felonies."  Appellant does not argue in his brief that the district court abused its discretion on this factor. 

            Finally, the third Austinfactor requires the district court to find that the need for confinement outweighs the policies favoring probation.  Id.  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.  Here, the district court made such findings, stating: "I am also going to find that the need for confinement outweighs the policy favoring probation and that it would depreciate the seriousness of the violation if probation were not revoked." 

Appellant argues that the district court did not give due consideration to the policies favoring probation.  Appellant contends that under Austin it was not enough for the district court to state that it found that the need for confinement outweighs the policy favoring probation and that it would depreciate the seriousness of the violation if probation was not revoked.  Appellant argues that the district court did not "convey substantive reasons for its decision."  See Modtland, 695 N.W.2d at 608 (stating that courts do not satisfy Austin simply by reciting the three factors and offering general, non-specific reasons for revocation; rather the district "courts must seek to convey their substantive reasons for revocation and the evidence relied upon").  Appellant asserts that this case should be remanded, because the district court failed to provide substantive reasons justifying revocation over probation.  Appellant suggests that "[h]ad the court given due consideration for a disposition other than revocation, continued probation and ongoing counseling would have been a viable option."  We can only point out this probation was appellant's third probation.  The record shows the district court gave appellant multiple opportunities to make probation work.

Whether a district court has made the findings required under Austin presents a question of law, which is subject to de novo review.  Kornberg v. Kornberg, 542 N.W.2d 379, 384 (Minn. 1996) (stating questions of law are reviewed de novo).  Here, the district court did make the required findings set forth in Austin before it revoked probation.  See Austin, 295 N.W.2d at 250.  The district court did attempt to effectuate the policy favoring probation.  In fact, from the beginning the district court favored probation for appellant; the court gave appellant one final opportunity to follow the terms of his probation and it departed from the statutory guidelines, even though appellant's new case constituted his third offense.  However, after the district court found that appellant had again failed to comply with the terms of his probation, which included remaining law-abiding, the court determined that now the need for confinement outweighed the policy favoring probation. 

The district court reasonably determined that appellant had violated his probation.  The district court made the requisite Austin findings. 

            Affirmed.