                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-0332

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                              Tremayne Anthony Miller,
                                    Appellant.

                               Filed November 9, 2015
                                      Affirmed
                                 Cleary, Chief Judge

                             Stearns County District Court
                               File No. 73-CR-11-5408


Lori Swanson, Attorney General, St. Paul, Minnesota;

Janelle P. Kendall, Stearns County Attorney, St. Cloud, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, Minnesota County Attorneys
Association, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for
appellant)


      Considered and decided by Hooten, Presiding Judge; Cleary, Chief Judge; and

Halbrooks, Judge.
                        UNPUBLISHED OPINION

CLEARY, Chief Judge

       Appellant argues that the district court abused its discretion when it revoked his

probation because the violations were not intentional or inexcusable and the evidence did

not establish that the need for confinement outweighed the policies favoring probation.

Because the district court did not abuse its discretion in revoking appellant’s probation,

we affirm.

                                        FACTS

       On February 23, 2012, appellant Tremayne Anthony Miller pleaded guilty to one

count of Driving While Intoxicated (DWI) – refusal to take a chemical test, in violation

of Minn. Stat. § 169A.20, subd. 2 (2010). The district court sentenced appellant to a 64-

month prison term, stayed for seven years during which appellant would serve probation.

The conditions of appellant’s probation included paying restitution, completing chemical

dependency programs, abstaining from all mood-altering chemicals, 30 days of

consecutive alcohol monitoring each of the seven years, remaining law-abiding,

completing an intensive supervision program, and other conditions.        The court also

sentenced appellant to serve two staggered jail terms, beginning January 1, 2013 and

January 1, 2014, which could be suspended based on the recommendation of the

supervising probation officer.

       Based on appellant’s good performance on the conditions of his probation, the

district court suspended appellant’s first staggered term on the recommendation of the




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probation officer. Appellant continued to fulfill probation conditions until October 2013

when he was first terminated from his required alcohol treatment aftercare program for

failure to attend.   Appellant restarted aftercare in December 2013 but was again

terminated for failure to attend on January 21, 2014. On January 1, 2014, appellant failed

to report for his final staggered jail term. On January 2, appellant went to Hennepin

County Government Center and had his alcohol-tracking bracelet removed. The state

argued that appellant missed a meeting with his probation officer that day, but appellant

claimed that he was never told of any meeting that day beyond the removal of his

alcohol-tracking bracelet.   Following these violations, the probation officer filed a

violations report recommending probation be revoked and appellant’s sentence be

executed.

      At the November 25, 2014 revocation hearing, the state alleged appellant

committed three probation violations. Appellant admitted two of these violations: that he

did not complete aftercare treatment and that he failed to report to jail for his required

term. The district court accepted appellant’s admissions of these two violations and

found the state proved the third violation, that appellant had failed to maintain contact

with probation staff by missing an appointment, by clear and convincing evidence.

      The district court found that “the violations were intentional or inexcusable”

because appellant “hadn’t exercised any amount of diligence in maintaining contact with

his agent with regard to these probation violations.” It also found that the violations

necessitated the revocation of appellant’s probation and executed his 64-month sentence.




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       This appeal followed.

                                     DECISION

       When a probationer violates a condition of probation, the district court may

continue probation, revoke probation and execute the stayed sentence, or order

intermediate sanctions. Minn. Stat. § 609.14, subd. 3 (2014). The district court must

make three findings on the record before revoking probation. State v. Modtland, 695

N.W.2d 602, 606 (Minn. 2005). The 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 the need for confinement outweighs the policies favoring probation.”

State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).           These required findings are

designed to ensure that revocation is not “a reflexive reaction to an accumulation of

technical violations” but rather is based on “a showing that the offender’s behavior

demonstrates that he or she cannot be counted on to avoid antisocial activity.” Id. at 251

(quotations omitted). When a district court makes these findings, it “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.” Id. at 249-50. Appellant argues that the

district court abused its discretion in concluding that the second and third Austin factors

had been satisfied.

       I.     Second Austin Factor

       Appellant argues that this failure to complete aftercare was unintentional and

excusable. He attributes his failure to attend, and eventual termination from the program,




                                             4
to stress and emotional struggles.     Appellant’s grandmother and brother had been

hospitalized and visiting family interfered with attending aftercare. Additionally, these

family health problems affected appellant’s own mental health and appellant stated that

depression led to him “shutting down emotionally and mentally and physically.” He

argues the court abused its discretion in finding that his failure to attend the aftercare

program was intentional or inexcusable.

       As to this first probation violation, the district court considered both appellant’s

failure to complete the aftercare program and his failure to maintain contact with

probation officers after missing sessions. Appellant was twice terminated from aftercare

for failure to attend. A Hennepin County Department of Community Corrections and

Rehabilitation report stated that he had “not been honest with his probation officer”

regarding his absences from treatment. The district court considered the mental and

familial stress appellant was experiencing, but concluded that it did not make his failure

to complete aftercare excusable. This finding is supported by the record and was not an

abuse of discretion.

       Next, appellant argues that his failure to attend a January 2, 2014 probation

meeting and his failure to report for his jail term on January 1 were unintentional and

excusable violations. He claims that he never received notice of either the meeting or the

need to report for the jail term. Appellant also argues that the lack of clarity of his

conditions led him to reasonably misunderstand his probation responsibilities, making

these violations excusable.




                                            5
       Appellant’s previous January 1, 2013 jail term had been suspended and he argues

that both he and probation staff acted in ways consistent with the January 1, 2014 term

being suspended. According to the state, appellant was scheduled to have his alcohol-

tracking bracelet removed and have a meeting with a probation officer on January 2.

These obligations could be understood as inconsistent with the requirement that appellant

report for the jail term on January 1. After the appointment, an “officer called the

defendant on January 3, 2014 and told him to call [his assigned probation officer] on

Monday January 6, 2014 to address his missed [appointment].” The call did not address

appellant’s failure to report for his jail term. Although he was sent a notification of the

jail term, appellant no longer lived at the address it was sent to and stated that he never

received it. Appellant believed he was in compliance with his probation as of January 1,

and argues that because he did not receive notice to report for the jail term, his failure to

report was excusable.

       However, the district court rejected appellant’s assertions, concluding that he

could not reasonably have believed his jail term was suspended and, moreover, he had

received notice to report unless instructed otherwise. The court stated:

              I don’t think it’s plausible to say I thought I wouldn’t have to
              go to jail even though you knew you weren’t going to
              aftercare, even if you weren’t discharged until two weeks
              after or three weeks after you were supposed to report for that
              last staggered sentence. I feel that my order was very, very
              clear that the jail staggered sentences would need to be
              executed unless they were waived. . . .




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The court emphasized that it stated at sentencing, both orally and in writing, that the jail

terms must be served unless they were suspended. Additionally, the district court noted

appellant’s failure to maintain contact with probation officers following the violations.

       Appellant was sentenced to serve a jail term that was required unless it was

suspended. The term was not suspended and he failed to report, violating his probation.

The district court had grounds for finding the violation was intentional or inexcusable and

stated those grounds. We review this decision only for a clear abuse of discretion. The

court did not abuse its discretion in finding that the second Austin factor was satisfied as

to these violations.

       II.    Third Austin Factor

       “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. Before revoking

probation and executing a prison sentence, a district court must find that the need for

confinement outweighs the policies favoring probation. Id. In assessing this third Austin

factor, courts are to consider whether

              (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.

Modtland, 695 N.W.2d at 607 (citing Austin, 295 N.W.2d at 251). Even when a court

finds intentional or inexcusable violations have occurred, public policy favors revocation




                                             7
only where at least one of these three subfactors supports execution of a prison sentence.

State v. Cottew, 746 N.W.2d 632, 636 (Minn. 2008).

       Appellant makes two arguments in support of his claim that the district court

abused its discretion in finding that the need for confinement outweighed the policies

favoring probation. First, appellant argues that based on his actions, the district court had

correctional options other than executing the sentence, and declining these other options

was an abuse of discretion.       Appellant highlights his successful compliance with

probation conditions for nearly two years, including maintaining sobriety, paying

restitution, and completion of inpatient alcohol treatment. Because of these factors, he

argues, “the current violations did not make appellant a danger to public safety.”

       At the revocation hearing, the district court stated that all three Modtland

subfactors supported confinement.       The district court stated that confinement was

necessary “to protect the public from further criminal activity.”        It also found that

appellant’s “need for the correctional treatment and the aftercare can most effectively be

provided while he is in custody,” because appellant had been unable to properly commit

his time to treatment while on probation. Last, the court found that continued probation

“would unduly depreciate the seriousness of the violation and the prior sentence.”

       Although the court could have provided greater discussion of its reasoning, it

discussed some specific facts supporting these findings. The court explained how “other

people . . . demanding his time” had led to appellant’s violations, and reasoned that

correctional treatment could be better provided in custody without those distractions. It




                                             8
emphasized that appellant failed to maintain contact with probation officers during and

after the violations. Further, a court may conclude that the policies favor revoking

probation where only one of these subfactors supports that decision. Cottew, 746 N.W.2d

at 636 (stating that public policy limits revocation to situations where Modtland subfactor

(i), (ii), or (iii) is present). Here the district court found all three. A court has broad

discretion in determining whether there is sufficient evidence to revoke probation. Austin,

295 N.W.2d at 249. These findings and the record that supports them are sufficient to

demonstrate that the district court did not abuse its discretion in finding the third Austin

factor required confinement.

       Next, appellant argues that the district court abused its discretion by improperly

applying a “lower threshold for revocation” because appellant received a dispositional

departure at sentencing.    A district court may consider a dispositional departure as

relevant to, but not determinate of, a revocation decision. State v. Fleming, __ N.W.2d

__, __, 2015 WL 5197944, at *10 (Minn. App. 2015), pet. for review filed (Minn. Oct. 8,

2015). The supreme court has held that in making a revocation decision, “[l]ess judicial

forbearance is urged for persons violating conditions of a stayed sentence who were

convicted of a more severe offense or who had a longer criminal history.” State v.

Osborne, 732 N.W.2d 249, 254 (Minn. 2007) (quoting Minn. Sent. Guidelines III.B.

(2006)).

       At the revocation hearing, the district court referenced the dispositional departure

twice. The court stated it was “saddened” to be dealing with appellant’s violations two




                                             9
and a half years after the dispositional departure and noted the earlier departure in support

of its finding that continued probation “would unduly depreciate the seriousness of the

violation and the prior sentence.” Appellant’s serious crime and criminal history led to a

64-month underlying sentence, meaning he was due lesser judicial forbearance. The

court’s finding on the third Austin factor was not a reflexive reaction to any violation or

based solely on the dispositional departure.

       We conclude that the court did not abuse its discretion by finding that the need for

appellant’s confinement outweighs the policies that favor probation.

       Affirmed.




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