Opinion
A15-0996
02-08-2016
State of Minnesota, Respondent, v. Kari Lynn Swenstad, Appellant.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Patrick R. McDermott, Blue Earth County Attorney, Susan B. DeVos, Assistant County Attorney, Mankato, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2014). Affirmed
Connolly, Judge Blue Earth County District Court
File Nos. 07-CR-14-1833; 07-CV-09-215; 07-CR-14-965 Lori Swanson, Attorney General, St. Paul, Minnesota; and Patrick R. McDermott, Blue Earth County Attorney, Susan B. DeVos, Assistant County Attorney, Mankato, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Johnson, Presiding Judge; Connolly, Judge; and Kirk, Judge.
UNPUBLISHED OPINION
CONNOLLY, Judge
Appellant challenges the district court's order revoking her probation, arguing that she should have been given an opportunity to undergo inpatient drug treatment. Because the record establishes that the district court did not abuse its discretion in revoking appellant's probation, we affirm.
FACTS
On August 4, 2014, appellant Kari Lynn Swenstad pleaded guilty to third-degree controlled substance crime in two separate cases. Pursuant to a plea agreement, the district court sentenced appellant to 27 months in prison on one count and 33 months on the other, stayed execution of both sentences, and placed appellant on probation. The district court ordered appellant to successfully complete the Blue Earth County Drug Court program as a condition of probation.
On February 12, 2015, respondent State of Minnesota filed two probation-violation reports. The reports alleged that appellant violated the conditions of probation by failing to complete the drug court program. Appellant was discharged from the drug court program after receiving 12 sanctions, including sanctions for missing and diluting urinalysis tests, lying to the district court judge, forging medical documents, and stealing. The reports recommended revoking appellant's probation and executing her sentences. Appellant admitted the violation and waived her right to a contested probation-violation hearing.
On March 20, 2015, the district court held a probation-revocation hearing. Respondent recommended that the district court revoke appellant's probation and execute her sentences. Appellant argued that her sentences should not be executed because there were still resources available to her in the community. She argued that she should be permitted to remain in custody until she could be transferred to an inpatient-treatment facility. At the conclusion of the hearing, the district court determined that appellant had violated the conditions of her probation and that the violations were intentional or inexcusable. The district court also determined that the need for confinement outweighed the policies favoring probation because appellant was a danger to society and needed treatment that could not be addressed through inpatient treatment. The district court revoked appellant's probation, executed both her 27-month and 33-month sentences, and ordered that the sentences run concurrently. This appeal follows.
DECISION
A district court has broad discretion to determine whether there is sufficient evidence to revoke probation and will not be reversed absent a clear abuse of discretion. State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004). The state has the burden of proving the offender violated her probation terms by clear-and-convincing evidence. Minn. R. Crim. P. 27.04, subds. 2(1)(c)b, 3(1).
Before 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." State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). In assessing the third factor, the district court must balance the offender's liberty interest against the state's interest in rehabilitation and public safety, considering whether:
(i) confinement is necessary to protect the public from further criminal activity by the offender; orId. at 251. Whether the district court made the findings required under Austin presents a question of law, which we review de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).
(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.
Appellant argues that the district court failed to make an adequate finding on the third Austin factor. In determining that the need for confinement outweighed the policies favoring probation the district court noted that appellant "continues to violate; she continues to use; she continues to . . . not be truthful" and that "she is a danger to society . . . with her use and chemical dependency." The district court stressed that it did not think appellant had made "any attempt to—even a small attempt to make [probation] work" and that the "criminal thinking that [appellant] continue[s] to possess and continue[s to] use" could not be dealt with through inpatient treatment.
The supreme court has explained that district courts must "seek to convey their substantive reasons for revocation and the evidence relied upon" and should not assume they have made the required findings "by reciting the three factors and offering general, non-specific reasons for revocation." Id. at 608. Here, the district court explicitly determined that confinement was necessary to protect the public and that appellant was in need of treatment that could not be provided in the community. The district court explained that these determinations were based on appellant's complete lack of effort to make drug court and probation work, as evidenced by her continued drug use, unwillingness to tell the truth, and numerous sanctions while in drug court. Thus, the district court explained its substantive reasons for revoking appellant's probation and the evidence it relied upon in making that determination. We conclude that the district court made a sufficiently specific finding on the third Austin factor.
Appellant also argues that the district court abused its discretion by finding that the need for confinement outweighed the policies favoring probation because it "failed to find that in-patient [treatment] was not available or would be unsuccessful." This argument is unavailing. A probation-revocation hearing is not intended to be a resentencing hearing. Id. at 607. Rather, the district court is required to find that an intentional or inexcusable probation violation occurred, and then evaluate whether the need for confinement outweighs the policies favoring probation. Austin, 295 N.W.2d at 250. Here, the district court followed that process. After determining that the violation was intentional and inexcusable, the district court explained that the need for confinement outweighed the policies favoring probation because appellant's conduct while on probation displayed a complete lack of effort to make probation work.
Moreover, the district court determined that appellant was in need of correctional treatment that could not be provided through inpatient treatment in the community. Appellant argues that the district court had no basis for this determination. We disagree. The district court judge who revoked appellant's probation also presided over drug court, and observed appellant's lack of progress and effort in drug court firsthand. The probation agent who filed the probation-violation reports also recommended revoking appellant's probation because he did not believe inpatient treatment would benefit her. Further, the district court was not required to allow appellant the opportunity to seek inpatient treatment before revoking her probation. See State v. Osborne, 732 N.W.2d 249, 252, 255 (Minn. 2007) (concluding that the district court did not abuse its discretion by revoking the defendant's probation without giving the defendant an opportunity to seek additional probationary resources, including inpatient treatment).
On this record, the district court did not abuse its discretion by revoking appellant's probation.
Affirmed.