State of Minnesota, Respondent, vs. Michael Wayne Olson, Appellant.

State of Minnesota, Respondent, vs. Michael Wayne Olson, Appellant. A06-375, Court of Appeals Unpublished, January 30, 2007.

This opinion will be unpublished and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

A06-375

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Wayne Olson,

Appellant.

 

Filed January 30, 2007

Affirmed

Huspeni, Judge*

 

 

Carlton County District Court

File No. 09-K2-00-000563

 

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

 

Thomas H. Pertler, Carlton County Attorney, Nichole J. Carter, Assistant County Attorney, Room 202 Courthouse, P.O. Box 300, Carlton, MN  55718 (for respondent)

 

John M. Stuart, State Public Defender, James R. Peterson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            In challenging the revocation of his probation imposed for second-degree controlled-substance offense, appellant argues that the district court erred in basing revocation on a single relapse into drug use without making any finding on the third Austin factor, requiring a balancing of the need for confinement against the policies favoring probation.  Because the district court adequately addressed the third Austin factor on the record, we affirm.

FACTS

            In May 2000, appellant Michael Olson sold $400 worth of methamphetamine to a police informant and was subsequently arrested and charged with controlled-substance offenses in the second, fourth, and fifth degrees.  In July 2003, he pleaded guilty to controlled-substance crime in the second degree, intent to sell; the other two charges were dismissed.  Under the terms of the plea agreement, appellant was sentenced to 108 months, with a stay of execution, and placed on probation for five years.  The sentence was a dispositional departure from the sentencing guidelines.  The special terms of his probation mandated that he (1) serve 18 months at Northeast Regional Corrections Center (NERRC); (2) complete treatment; and (3) abstain from the use of alcohol and mood-altering chemicals and submit to random testing.   

            Between March 2005 and November 2005, appellant appeared in court several times for alleged probation violations.  On November 21, 2005, a probation revocation hearing was conducted.  At the hearing, appellant admitted to pleading guilty in St. Louis County District Court to one count of fourth-degree possession of a controlled substance, one count of third-degree possession of a controlled substance, and fleeing a peace officer in a motor vehicle.  He also admitted to failing to (1) keep in contact with the probation officer, (2) submit to required urinalysis testing, and (3) abstain from the use of controlled substances.  The district court revoked probation and executed the previously stayed 108-month sentence.  This appeal followed.

D E C I S I O N

            The 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).  A district court's failure to exercise its discretion will result in a remand for reconsideration.  See, e.g., State v. Abeyta, 328 N.W.2d 443, 445 (Minn. 1983).  Whether the district court has made the findings required under Austin presents a question of law, which is subject to de novo review.  State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).

            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.

            Recently, the supreme court reaffirmed the central holding from Austin, requiring specific consideration of each factor.  See Modtland, 695 N.W.2d at 606.  In so doing, the supreme court rejected decisions from this court allowing a reviewing court to affirm the district court so long as there was "sufficient evidence" supporting the district court's probation revocation, even if the district court did not make the specific findings required by Austin.  See State v. Hlavac, 540 N.W.2d 551, 552-53 (Minn. App. 1995); State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), review denied (Minn. July 20, 1995).  The court emphasized, "in making the three Austin findings, courts are not charged with merely conforming to procedural requirements; rather, courts must seek to convey their substantive reasons for revocation and the evidence relied upon."  Modtland, 695 N.W.2d at 608.

            In reviewing the record before us, we are mindful of the mandates clearly set out in Austin and Modtland.  Here, the only challenge raised by appellant is directed to the third Austin factor, and although he insists that the district court failed to make sufficient findings to satisfy that third factor, we disagree.  Even though findings were not made in writing, those spread on the record are sufficient for this court to conduct meaningful review.  See id. at 608 n.4 (stating that "[t]he ‘written findings' requirement is satisfied by the district court stating its findings and reasons on the record, which, when reduced to a transcript, is sufficient to permit review.").

            At the revocation hearing, the district court noted appellant's extensive criminal history, including convictions for controlled substance related crimes occurring while he was on probation for the offense that is the subject of the probation revocation this court is reviewing.  Specifically, the court stated:

            I mean toagain, all things being equal, the 100he should have beenhe should have been serving the 108-month sentence.  However, over and above that, I also erred the last time on the side of giving him the benefit of participating in a very intense treatment program, staying execution of the sentence, putting him on probation, giving him substantially less time in jail or prison, and giving him a chance to be involved in a very intense treatment program at NERCC, where he served the local jail sentence.

 

            . . . .

 

            I wish we weren'tI wish we weren't here today.  I wish we weren't here today.  I wish that the treatment had beenhad been successful.  But since that time, [appellant] committed what would have been, I guess, hisif I'm right, approximately his eighth and then his ninth controlled substance crimes.  In addition, fleeing a peace officer while in a motor vehicle.  And again, this is after hehe refused testing to confirm his abstinence as he was required to do.  He wasn't reporting to his probation agent.  Itthis is not a technical violation.  This is a very clear and direct violation of what was a downward departure at the time of sentencing.

 

The district court further stated that "I feel compelled to [revoke appellant's probation] at this time.  I think to do anything else would be a miscarriage of justice."

            We conclude that the district court clearly had all of the Austin factors in mind in making the findings on the record.  Those findings indicate that the court concluded that revocation was necessary to protect the public from further criminal activity by appellant, and that appellant was in need of confinement because his prior attempt at treatment was unsuccessful.  See Austin, 295 N.W.2d at 251.  The district court's statement that "anything [other than a revocation of probation] would be a miscarriage of justice," also indicates that the court considered that "it would unduly depreciate the seriousness of the violation if probation were not revoked."  See id.  Therefore, we conclude that the district court complied with the mandates of Austin and Modtland, and did not abuse its discretion in revoking appellant's probation.

            Affirmed.     

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