State of Minnesota, Respondent, vs. Joseph Harvey Bellanger, Appellant.

State of Minnesota, Respondent, vs. Joseph Harvey Bellanger, Appellant. A06-1486, Court of Appeals Unpublished, February 6, 2007.

This opinion will be unpublished and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

A06-1486

 

State of Minnesota,

Respondent,

 

vs.

 

Joseph Harvey Bellanger,

Appellant.

 

Filed February 6, 2007

Affirmed

Shumaker, Judge

 

Cass County District Court

File No. K9-05-184

 

 

 

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

 

Earl Maus, Cass County Attorney, Christopher J. Strandlie, First Assistant Cass County Attorney, P.O. Box 3000, Walker, MN 56484 (for respondent)

 

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

 

 

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

 

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant Joseph Bellanger challenges the district court's order revoking his probation imposed for third-degree assault, arguing that the court erred by revoking probation without making oral or written findings on the Austin factors, as required by Modtland.  Appellant argues that the district court's decision from the bench did not show a consideration of the Austin factors.  Appellant also argues that the state failed to prove that the acts that allegedly caused his discharge from a treatment program were inexcusable or done with intent to be terminated from the program.  Because we conclude that the district court's findings adequately reflect consideration of the Austin factors and that clear and convincing evidence supports a finding that appellant violated at least one of the conditions of probation, we affirm. 

FACTS

 

            Appellant Joseph Bellanger pleaded guilty to third-degree assault in June 2005.  The district court stayed Bellanger's 42-month prison sentence and placed him on probation for five years, subject to certain conditions.  On October 17, 2005, Bellanger admitted that he violated his probation by using, possessing, or purchasing alcohol or controlled substances.  The court ordered that Bellanger was to continue on probation and released him directly to a chemical-dependency treatment facility.  In November 2005, Bellanger again admitted that he violated his probation by consuming alcohol, and the district court released him to treatment at the Mash-Ka-Wisen facility.  In March 2006, Bellanger admitted violating the probation conditions of failure to abstain from mood-altering chemicals, failure to remain law-abiding, and failure to complete a Rule 25 assessment and follow its recommendations.  He also pleaded guilty to a charge of obstructing legal process, arising from resisting arrest when police arrested him during a disturbance at his residence.  The district court deferred disposition until after treatment and issued a furlough for Bellanger to be transported to secure inpatient treatment at the Fergus Falls correctional facility. 

            Bellanger was discharged from treatment at Fergus Falls after about ten days.  In May 2006, the district court held another probation-revocation hearing.  A supervisor from the department of corrections testified that, based on Bellanger's discharge termination summary, the reasons for his discharge were the treatment staff feeling that he was "aggressive and hostile and would not follow directions . . . ."  She recommended the execution of sentence based on Bellanger's failure to complete three treatment programs and his reinstatement on probation on two previous occasions.  She testified that Bellanger did complete the inpatient portion of the Mash-Ka-Wisen treatment program, a culturally appropriate program for Native Americans, but that he did not complete the aftercare portion of the program. 

            Another resident involved in the Fergus Falls treatment program at the same time as Bellanger testified that Bellanger's behavior at the program had not been threatening and that a staff member had overreacted to his actions.  Bellanger admitted that he called a staff member "the ‘B' word," which he acknowledged was inappropriate, and that he was "out of control" when he did it, but that he did not believe his behavior was threatening.  He testified that he wanted to complete a treatment program and that he believed the Fergus Falls program did not work because it was not culturally appropriate.  He acknowledged that he had "threatened people in the past," but denied that he threatened anyone that day.  Bellanger's attorney also produced a fax sent from the lead assessor at Leech Lake Outpatient Program, who indicated that she supported continued treatment for Bellanger and believed it would be beneficial. 

            The district court found that Bellanger had violated probation by failing to complete treatment.  The court stated on the record:

            Well, here's the problem, Mr. Bellanger.  You're not just a drunk.  You're violent.  And when you drink, you get very violent.  And I've known you for a fair amount of time.  I think you have a lot of potential in your life, but I can't risk public safety to have you drinking because you get so violent. 

 

            Now I deferred the disposition to allow you to do this treatment thinking . . . something might click.  And for whatever reason, you didn't take that seriously enough to not call the staff a name. 

 

            So under the circumstances I don't feel I have a choice but to execute the sentence and that's what I'm going to do.

 

             . . . .

 

            I don't like doing this, but I don't see an alternative based on the history here.

 

            My concern is you've continued to get more violent as you get older, and I can't allow you to do that.  You're going to hurt people, and you need to take stock of your life. 

 

            The district court then revoked probation and ordered the execution of Bellanger's sentence.  This appeal followed.

 

D E C I S I O N

 

I

 

            Before revoking probation, the district court must (1) designate the specific probation condition or conditions violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation.  State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005) (citing State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980)).  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.

 

Austin, 295 N.W.2d at 251.

 

            Whether a district court has made the required findings presents a question of law, which this court reviews de novo.  Modtland, 695 N.W.2d at 605.  The Minnesota Rules of Criminal Procedure also require the district court to make "written findings of fact on all disputed issues" in a contested probation-revocation hearing.  Minn. R. Crim. P. 27.04, subd. 3(4).  "The ‘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."  Modtland, 695 N.W.2d at 608 n.4 (citing Pearson v. State, 308 Minn. 287, 292, 241 N.W.2d 490, 493 (1976)). 

            Before Modtland, this court interpreted Austinto permit a "sufficient-evidence exception" to the requirement that the district court make findings on the required factors.  See, e.g., State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), reviewed denied (July 20, 1995); see also Austin, 295 N.W.2d at 250 (affirming probation revocation despite district court's failure to make a finding regarding the condition of probation violated).  But Modtland abrogated the sufficient-evidence exception and now requires the district court to make specific findings on the Austin factors to assure the creation of a "thorough, fact-specific" record setting forth the substantive reasons for revoking probation.  Modtland, 695 N.W.2d at 608.  Under Modtland, district courts "should not assume they have satisfied Austin by reciting the three factors and offering general, non-specific reasons for revocation, as it is not the role of the appellate courts to scour the record to determine if sufficient evidence exists to support the district court's revocation."  Id. 

            Bellanger agrees that the district court made a sufficient finding on the first Austinfactor, stating on the record that he violated a condition of probation by failing to complete chemical-dependency treatment.  But Bellanger argues that the district court failed to make a finding on the second Austinfactor: that the probation violation was either intentional or inexcusable.  We conclude that, although the district court did not use either term, the court's statement, "you didn't take [the condition of treatment] seriously enough not to call the staff a name," sufficiently qualifies as a finding on the second Austin factor.  The district court's statement reflects Bellanger's awareness that his actions violated the condition of completing treatment because they could reasonably be expected to result in his discharge from the treatment program.  Finally, Bellanger maintains that the district court did not make findings on the third Austin requirement: that the need for confinement outweighs the policies that favor probation.  The district court stated on the record to Bellanger, "I think you have a lot of potential in your life, but I can't risk public safety to have you drinking because you get so violent . . . .  My concern is you've continued to get more violent as you get older, and I can't allow you to do that. You're going to hurt people . . . ."  These statements operate as an adequate finding to fulfill the third Austinrequirement.  Therefore, the record reflects that the district court satisfactorily addressed each of the three Austin factors. 

II

            Bellanger argues that even if the district court made the required findings, the evidence is insufficient to support a finding that his violation was intentional or inexcusable, or that the need for confinement outweighed the policies favoring probation.  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."  Austin, 295 N.W.2d at 249-50.  A probation violation must be established by clear and convincing evidence.  Minn. R. Crim. P. 27.04, subd. 3(3).

            Bellanger maintains that his discharge from treatment is insufficient to support a finding that his violation was intentional or inexcusable.  He asserts that he did not intend to get kicked out of treatment.  But his admitted acts of calling a staff member "the ‘B' word" and his statement that he was "out of control" support a finding that his actions were intentional or inexcusable.  In addition, the discharge summary from Fergus Falls indicates that he "slammed his hand repetitively against the glass windows to the unit office . . . ."  The district court was entitled to weigh this evidence against the testimony of the other patient who testified on Bellanger's behalf, make a determination of credibility, and find that the violation was intentional or inexcusable.

            Finally, Bellanger argues that the evidence does not support a finding that the need for confinement outweighs the policies favoring probation.  Although Bellanger maintains that his drinking does not present a risk to public safety, the district court pointed out that Bellanger had a history of violence associated with alcohol use.  One of Ballenger's previous admitted probation violations involved failure to remain law-abiding with a misdemeanor charge of obstructing legal process.  "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.  Even though Bellanger presented evidence of support for continued chemical-dependency treatment in a culturally appropriate program, a representative of the department of corrections presented unrebutted testimony that Bellanger had failed to complete treatment three times, including the aftercare in a culturally appropriate treatment program.  Thus, the district court acted within its discretion in revoking probation, and we affirm. 

            Affirmed.