Opinion
No. C8-96-973.
Filed October 29, 1996.
Appeal from the District Court, Ramsey County, File No. K8953035.
Hubert H. Humphrey, III, Attorney General, (for Respondent)
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, (for Respondent)
Lawrence W. Pry, Assistant State Public Defender, (for Appellant)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
Anthony Winston Perry appeals from the district court's revocation of his probation, arguing that the district court abused its discretion because (1) it did not state on the record the reasons for the revocation and (2) there was no evidence that the need for confinement outweighed the policies favoring continuing probation. We affirm.
FACTS
On September 19, 1990, appellant Anthony Perry pleaded guilty to a charge of possession of cocaine. The district court stayed the imposition of Perry's one-year sentence and placed him on probation for five years.
During his probation, Perry failed to maintain contact with his probation officer; failed to abstain from the use of drugs; and pleaded guilty to second-degree assault, for which the district court stayed his 26-month sentence and put him on probation for seven years. On February 13, 1996, the district court, finding that Perry had repeatedly violated the terms of his probation, revoked his probation and executed both of his sentences.
DECISION
The district court has broad discretion in determining whether to revoke probation and the reviewing court will not reverse absent a clear abuse of discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).
Perry argues that the district court abused its discretion by not making express findings on the reasons for the revocation. In revoking probation, the district court should find that the offender has intentionally or inexcusably violated a specific condition of his probation and the need for confinement outweighs the policies favoring probation. Id. at 250. Nevertheless, "[a] court's failure to make these express findings is not an abuse of discretion where the record contains sufficient evidence to warrant the revocation." State v. Theel , 532 N.W.2d 265, 267 (Minn.App. 1995), review denied (Minn. July 20, 1995).
The record here shows Perry intentionally violated conditions of his probation. His claim that his failure to comply with the terms of his probation is due to his drug addiction does not vitiate intent. See State v. Ehmke , 400 N.W.2d 839, 840-41 (Minn.App. 1987) (affirming a revocation order that was based in part on probationer's inability to control his addiction to alcohol).
Perry argues the policies favoring continuation of his probation are not outweighed by the need for his confinement. Probation should not be revoked unless:
(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 [that] 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 (citation omitted).
Perry claims he committed no new crimes while on probation and that his conduct does not indicate he will commit additional crimes. The record shows, however, that Perry pleaded guilty to a second-degree assault committed during his probation, which supports a conclusion that his confinement may be necessary to protect the public from further criminal activity.
Perry further states that drug treatment may not be available to him in prison and that spending time in prison will not help him integrate successfully into the community. The record shows Perry failed to take advantage of his opportunities to obtain drug treatment while on probation. The purpose of probation is rehabilitation, and when rehabilitation has clearly failed, a court may justifiably revoke probation. See id. at 250.
Finally, Perry argues that his probation violations were technical and that continuing probation would neither undermine the authority of the court nor unduly depreciate the seriousness of the violations. Given the nature and repetition of the violations, it was reasonable for the district court to conclude they were substantial and that continuing Perry's probation would depreciate the seriousness of the violations.
There is sufficient evidence in the record to support the conclusion that Perry intentionally violated conditions of his probation and that the need for Perry's confinement outweighs the policies favoring continuing his probation. The district court did not abuse its discretion by revoking Perry's probation.