                          This opinion will be unpublished and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
                                     A16-0749

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                 Cole Michael Habinger,
                                       Appellant.

                                Filed December 27, 2016
                                       Affirmed
                                      Kirk, Judge

                             Blue Earth County District Court
                                 File No. 07-CR-15-1165

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, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and

Kirk, Judge.

                         UNPUBLISHED OPINION

KIRK, Judge

       Appellant challenges the district court’s decision to revoke his probation and to

execute his 36-month prison sentence, arguing that: (1) the court abused its discretion when
it declined to follow probation’s sentencing recommendation, and (2) there was insufficient

evidence to support the court’s finding that revocation was necessary to protect the public.

We affirm.

                                         FACTS

       On July 14, 2015, while in custody, appellant Cole Michael Habinger pleaded guilty

to felony driving while impaired (DWI). Pursuant to the plea agreement, appellant was

released directly to an inpatient treatment facility. A sentencing hearing was scheduled for

November 23. On November 10, an arrest warrant was issued for appellant after he

violated the conditions of his presentencing release. Appellant was charged with two new

criminal offenses before he was arrested, one for disruptive intoxication and one for theft.

A preliminary breath test (PBT) indicated that appellant had alcohol in his system at the

time of the theft offense. Appellant was arrested on November 17, and he refused to

provide a urine sample to jail staff at the request of probation. Appellant was remanded to

custody until sentencing.

       On November 23, the district court sentenced appellant to 36 months in prison, and

stayed execution for seven years. On December 29, an arrest warrant was issued for

appellant after he violated the conditions of his probation by failing to begin electronic-

alcohol monitoring, to report for a probation meeting, and to provide probation with

accurate contact information after his release from jail. Appellant was arrested on January

31, 2016, and a PBT indicated that he had alcohol in his system.

       Appellant was remanded to custody until his February 5 probation-violation

hearing, where he admitted to all three probation violations and that he was out of contact


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with probation for about a month prior to his arrest.           Appellant’s probation agent

recommended that he be ordered to serve 90 days in jail, with the possibility of early release

to a secure treatment facility. The state argued that appellant should be ordered to serve

270 days in jail.

       The district court stated that it was concerned about appellant and about public

safety because “[w]e’ve been down this road before and we’re always at the same result.”

The district court noted that appellant continued to use alcohol despite completing

treatment, and that, according to the presentence investigation (PSI), appellant was “on a

dangerous path of self-destruction with escalating alcohol and drug use and creating a

significant threat to public safety.” It also noted that before the current offense, appellant

was convicted of “three prior DWIs in a short amount of time all putting [appellant] and

others at risk.” The district court emphasized that appellant basically absconded when he

failed to report to his probation agent, that this violation was very serious, and that it could

not “trust that [appellant] . . . [was] not going to drink and drive again.”

       The district court concluded that appellant’s probation violations were “intentional

and inexcusable” and that “the need for confinement outweighs the policies favoring

probation because . . . confinement is necessary to protect the public from further criminal

activity.” The district court executed appellant’s 36-month prison sentence, with credit for

172 days.

       This appeal follows.




                                               3
                                      DECISION

       “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.’”

State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005) (quoting State v. Austin, 295

N.W.2d 246, 249-50 (Minn. 1980)). “Before revoking a probationary sentence, a district

court must: (1) specifically identify the condition or conditions violated; (2) find that the

violation was intentional or inexcusable; and (3) find that the policies favoring probation

no longer outweigh the need for confinement.” State v. Osborne, 732 N.W.2d 249, 253

(Minn. 2007) (citing Austin, 295 N.W.2d at 250). The district court must make specific

findings that establish the “substantive reasons for revocation and the evidence relied

upon” and may not simply “recit[e] the three factors and offer[] general, non-specific

reasons for revocation.” Modtland, 695 N.W.2d at 608. “[W]hether a lower court has

made the findings required under Austin presents a question of law, which is subject to de

novo review.” Id. at 605.

       Appellant challenges the district court’s finding on the third Austin factor, arguing

that the district court abused its discretion when it revoked his probation because the record

does not establish that the need to incarcerate him outweighs the policies favoring

probation. Appellant also challenges the evidentiary support for the district court’s finding

that revocation of his probation was necessary to protect the public. He argues that because

his probation violations did not constitute criminal conduct, he did not put the public at

risk. Appellant asserts that it was improper for the district court to rely on his previous

presentence-release violations because those violations are not related to his probation


                                              4
violations. Appellant does not cite to any legal authority in support of this assertion.

Appellant requests that this court reverse the district court’s execution of his sentence.

       When considering the third Austin factor, “district courts must bear in mind that

policy considerations may require that probation not be revoked even though the facts may

allow it and that the purpose of probation is rehabilitation and revocation should be used

only as a last resort when treatment has failed.” Modtland, 695 N.W.2d at 606 (quotations

omitted).   “When determining if revocation is appropriate, courts must balance the

probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and

the public safety, and base their decisions on sound judgment and not just their will.” Id.

at 606-07 (quotations omitted). “The decision to revoke probation cannot be a reflexive

reaction to an accumulation of technical violations but requires a showing that the

offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial

activity.” Osborne, 732 N.W.2d at 253 (quotation omitted).

       The Minnesota Supreme Court has instructed that, when making findings on the

third Austin factor, district courts should 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 (quoting Austin, 295 N.W.2d at 251). The district court need

only make a finding on one of the three sub-factors to satisfy the third Austin factor. Austin,

295 N.W.2d at 251.



                                              5
          At the probation-violation hearing, the district court expressly found that the need

for confinement outweighed the policies favoring probation because confining appellant

was necessary to protect the public. In reaching this conclusion, the district court listed its

justifications, which show that the court did not reflexively revoke appellant’s probation in

response to technical violations. The district court did not believe appellant would remain

law abiding if probation was reinstated, and it concluded that he could not be counted on

to avoid antisocial activity. The evidence the district court relied upon was sufficient to

support its finding that revocation of appellant’s probation was necessary to protect the

public.

          The district court satisfied the third Austin factor and did not abuse its discretion by

revoking appellant’s probation. See, e.g., State v. Losh, 694 N.W.2d 98, 102 (Minn. App.

2005) (affirming the revocation of appellant’s probation where “the district court found

[her] continued use and involvement with controlled substances [to be] a danger to the

public interest”), aff’d, 721 N.W.2d 886 (Minn. 2006).

          Affirmed.




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