State of Minnesota, Respondent, vs. John Raymond Boshey, Appellant.
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. ยง 480A.08, subd. 3 (2008). STATE OF MINNESOTA IN COURT OF APPEALS A08-2236 State of Minnesota, Respondent, vs. John Raymond Boshey, Appellant. Filed November 17, 2009 Reversed and remanded Kalitowski, Judge St. Louis County District Court File No. 69DU-CR-06-6796 Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and Melanie Ford, St. Louis County Attorney, Mark S. Rubin, Assistant County Attorney, 100 North Fifth Avenue West, #501, Duluth, MN 55802-1298 (for respondent) Marie L. Wolf, Interim Chief Appellate Public Defender, Cathryn Middlebrook, Assistant Public Defender, 540 Fairview Avenue North, Suite 300, St. Paul, MN 55104 (for respondent) Considered and decided by Wright, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge. UNPUBLISHED OPINION KALITOWSKI, Judge Appellant John Raymond Boshey challenges the district court s order revoking his probation, arguing that the court failed to make sufficient written or oral findings of fact on the record to support its decision. We reverse and remand. DECISION District courts have broad discretion to determine whether there is sufficient evidence to revoke probation, and will only be reversed for abuse of discretion. State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004). But whether the district court has made the findings necessary to revoke probation is a question of law, which this court reviews de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005). The Minnesota Supreme Court has explained the importance of careful consideration before revoking probation, stating that [t]he purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). To ensure this careful consideration, the supreme court established a three-step analysis that a court must complete before revoking probation. Id. The district court must: (1) designate the specific condition or conditions of probation the probationer violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring continued probation. Id. The court must balance the probationer s interest in freedom with the state s interest in rehabilitating offenders and ensuring the public safety. Id. 2 In the 25 years following Austin, courts developed a sufficient-evidence exception to the Austin findings requirement, whereby appellate courts reviewed the district courts revocation decisions based on the sufficiency of all of the evidence in the record. Modtland, 695 N.W.2d at 606. But in Modtland, the Minnesota Supreme Court rejected this exception, holding that district courts must specifically and expressly address each of the three Austin factors. Id. at 606. The Modtland court admonished that 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. at 608. Thus, under Modtland, we are compelled to reverse a district court s probation revocation if it lacks the requisite Austin findings. Here, the record indicates that appellant (1) was convicted of first-degree arson at both entrances to a home where children were present; (2) received a downward dispositional departure and was placed on probation; and (3) admitted to multiple probation violations. But although there may be sufficient evidence on the record to satisfy the Austin factors, the district court failed to make the requisite findings on the second and third Austin factors. Because the Minnesota Supreme Court mandated in Modtland that this court cannot affirm a district court probation revocation that is not supported by specific findings on the record as to all three Austin factors, we reverse and remand for the necessary findings. Reversed and remanded. 3
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