                         This opinion will be unpublished and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
                                    A14-2058

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Phillip Andrew Jones,
                                        Appellant.

                                   Filed July 6, 2015
                                Reversed and remanded
                                     Reyes, Judge

                             Hennepin County District Court
                                File No. 27CR1322820

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica Surges Shacka,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and

Reyes, Judge.

                        UNPUBLISHED OPINION

REYES, Judge

      In this probation-revocation appeal, appellant argues that because the district court

revoked his probation without first making the required findings under State v. Austin,
295 N.W.2d 246 (Minn. 1980), the revocation order must be reversed, and appellant must

be reinstated on probation. We reverse and remand for additional findings.

                                          FACTS

       On July 16, 2013, appellant Phillip Andrew Jones was charged with one count of

first-degree aggravated robbery and one count of third-degree assault. Appellant pleaded

guilty to first-degree aggravated robbery as part of a plea deal in which the third-degree

assault charge was dismissed. In accordance with the terms of the deal, the district court

sentenced appellant to 81 months, stayed for a five-year probationary period. Appellant

was also sentenced to serve 365 days in the Hennepin County workhouse. The plea

agreement represented a downward-dispositional departure.

       Prior to sentencing, the parties agreed that appellant would report to the

workhouse on January 7, 2014. However, the report date was extended to January 28,

2014, after appellant’s child passed away. The new report date was made a condition of

appellant’s probation, and he expressly told the district court that he would turn himself

in to the workhouse on January 28, 2014. Appellant was also required to maintain

contact with his probation officer.

       Appellant failed to turn himself in to the Hennepin County workhouse as directed.

On February 12, 2014, appellant’s probation officer filed a probation-violation report

based on appellant’s failure to turn himself in and his failure to maintain contact with the

probation officer. Three days prior to that report being filed, appellant had turned himself

in to Indiana authorities because he had an active Indiana arrest warrant which predated

his Minnesota conviction.


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       At his probation-revocation hearing, appellant admitted that he violated his

probation by failing to turn himself in by the January 28 report date and failing to

maintain contact with his probation officer. Despite these admissions, appellant argued

that continued probation would be more appropriate than executing his sentence.

Appellant noted that he was grieving the stillbirth of a child shortly before his report date

which caused him to go into a “fog” of grief. Once he came out of that “fog,” appellant

argued, he decided to turn himself in to Indiana authorities. Appellant pointed out that

because he was in custody in Indiana, he took advantage of many rehabilitative programs,

showing his amenability to probation. Appellant further argued that in-patient treatment

for chemical dependency would be appropriate and that the need for confinement did not

yet outweigh the policies favoring probation.

       Conversely, the state asked the district court to execute appellant’s sentence,

arguing that appellant made no progress with respect to the conditions of his probation

and that he should not be given a second opportunity when he failed to take advantage of

the dispositional departure. The state further argued that appellant posed a threat to

public safety and that there was no reason to believe that the underlying nature of what

led to the violent offense had been addressed. Thus, the state argued, “the policy

favoring confinement clearly outweighs those [favoring] probation.”

       After hearing both arguments, the district court ruled in favor of the state,

commenting:

              [C]ertainly I appreciate and understand the efforts that Mr.
              Jones has made, but I start with the presumption that this was
              a . . . very serious matter offense and if he is going to get a


                                              3
              departure from the commitment to the Commissioner of
              Corrections because there [are] exceptional circumstances,
              there is . . . an exceptional responsibility for Mr. Jones to
              satisfy the expectation. I know I wasn’t the sentencing judge,
              but I know that there was a good deal that you received and
              that deal was you need to report to the workhouse and satisfy
              all these conditions in order to avoid what you agreed would
              be a longer prison sentence.

                     The first obligation you had was to show up at the
              workhouse and I know that there may have been some
              challenges that have gotten you there, but they weren’t ones
              that would excuse you from being there. And I think even
              though you have made some efforts, it’s not efforts that are
              enough to convince me that I should put the deal aside and
              put you back on probation even with an extra year in the
              workhouse or anything like that.

                     So I’m going to agree with [the state] on this. I’m
              going to revoke the time, Mr. Jones.

The district court revoked appellant’s probation, lifted the stay of execution, and executed

his 81-month sentence. This appeal followed.

                                      DECISION

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

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

intermediate sanctions. Minn. Stat. § 609.14, subd. 3 (2014). Prior to 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.” Austin, 295 N.W.2d at

250. Failure to address all three Austin factors requires a reversal and remand, even if the

evidence was sufficient to support the revocation. State v. Modtland, 695 N.W.2d 602,



                                              4
606-08 (rejecting this court’s application of a “sufficient-evidence exception” to the

requirement for Austin findings). The district court’s analysis of the Austin factors is

reviewed for an abuse of discretion. Id. at 605. However, whether the district court has

made the required findings presents a question of law, which is reviewed de novo. Id.

       Appellant first argues that the district court failed to make any of the required

Austin findings on the record. When conducting an Austin analysis, a district court may

not simply recite the three Austin factors and offer “general, non-specific reasons for

revocation.” Id. at 608. Instead, a district court must “convey their substantive reasons

for revocation and the evidence relied upon.” Id. While written orders are not required,

the district court should at least “stat[e] its findings and reasons on the record, which,

when reduced to a transcript, is sufficient to permit review.” Id. at 608, n.4. Here, the

record can only be construed as satisfying the first two Austin factors. Accordingly, a

reversal and remand is warranted.

I.     First Austin factor.

       The first Austin factor requires that the district court designate the specific

conditions of probation that were violated. Austin, 295 N.W.2d at 250. Appellant’s

probation-violation report lists four violations. At the probation-revocation hearing, the

district court accepted on the record appellant’s admissions as to the first two violations.




                                              5
That finding is sufficient for this court to conclude that the district court designated a

specific violated condition as required by Austin.1

II.       Second Austin factor.

          The second Austin factor requires that the district court find that the violations

were “intentional or inexcusable.” Id. at 250. Although the district court failed to do so

explicitly, a review of the record reveals a number of statements that serve as findings

that the violations were “intentional or inexcusable.”

          With respect to appellant’s failure to report to the workhouse, the district court

stated:

                 I understand that there may have been some reasons why
                 there was some confusion, but those don’t seem to amount to
                 a justification for failing to appear at the workhouse as you
                 were required to do.

The district court later stated:

                        The first obligation you had was to show up at the
                 workhouse and I know that there may have been some
                 challenges that have gotten you there, but they weren’t ones
                 that would excuse you from being there.




1
  Later in the proceeding, the state referred to allegations three and four, but the district
court did not comment on whether it was including those allegations as support for the
revocation. While the district court failed to specify if it was basing the revocation on
some, all, or some combination of the four violations alleged, it expressly accepted the
first two violations on the record. We note that, although we reverse and remand based
on the third Austin factor, if the district court intends to include other alleged offenses as
bases for support of revocation, it should specifically designate each offense on the
record along with the condition that it violates.

                                                 6
(Emphasis added). With respect to appellant’s failure to report to probation, the district

court did not accept appellant’s explanation that he failed to maintain contact because his

probation officer moved:

              APPELLANT: The[y] said that they moved, Sue is my
              probation officer, from one down here to one that was in
              Fridley.
              THE COURT: But was that near where your address was at
              the time?
              APPELLANT: Yes, ma’am.

The district court further stated:

              Remaining in contact, it sounds like some effort but
              probably . . . not the efforts that were required under your
              probation.

These statements are not the type of general, non-specific, or reflexive findings

prohibited by Modtland. 695 N.W.2d at 608. Instead, these statements show that the

district court considered the reasons for appellant’s violations but nevertheless found

them inexcusable. Thus, the district court addressed the second Austin factor.2

III.   Third Austin factor.

       The third Austin factor requires the district court to “find that [the] need for

confinement outweighs the policies favoring probation.” 295 N.W.2d at 250. A district

court may satisfy the third Austin factor if any one of the three sub-factors are present:


2
 The state spends much of its brief arguing that the district court did not abuse its
discretion in finding that the violation was intentional or inexcusable. But appellant does
not contend that the district court abused its discretion on the second Austin factor; rather,
appellant argues that the second Austin factor simply is not present. Moreover, the state’s
argument essentially asks this court to look to the record for evidence rebutting
appellant’s excuses. This argument is the exact type of “sufficient evidence exception”
argument that was abrogated by Modtland. 695 N.W.2d at 606.

                                              7
(1) confinement is necessary to protect the public from further criminal activity by the

offender; (2) the offender is in need of correctional treatment which can be most

effectively provided by confinement; or (3) it would unduly depreciate the seriousness of

the violation if probation was not revoked. Id. at 251. The district court failed to

explicitly find that the need for confining appellant outweighed the policies favoring

probation.

       The state argues that all three sub-factors were implicitly discussed when the

district court agreed with the state’s overall argument. The state contends that when the

district court judge said, “I’m going to agree with [the state] on this,” it effectively

adopted all of the reasoning and arguments the state had made during the course of the

hearing. And because they had discussed some of the sub-factors in making those

arguments, the state now argues that this “adoption” was the equivalent of making a

finding on the third Austin factor. We are not persuaded.

       Modtland requires that district courts make “thorough, fact-specific records setting

forth their reasons for revoking probation.” 695 N.W.2d at 608. It would contradict

Modtland to allow a district court’s general agreement with a party’s argument to qualify

as a finding on the third Austin factor simply because the party previously discussed some

of the sub-factors. Instead, district courts must “convey their substantive reasons for

revocation and the evidence relied upon.” Id. Doing so allows for effective appellate

review, as it is “not the role of appellate courts to scour the record to determine if

sufficient evidence exists to support the . . . revocation.” Id. Following Modtland, the




                                               8
district court’s lack of findings and substantive reasoning are insufficient to satisfy the

third Austin factor.3 Thus, a reversal and remand for additional findings is necessary.

       Reversed and remanded.




3
  The state briefly argues that the district court made a finding on the third sub-factor
when it addressed appellant, stating: “What I would like to say is you made bad
decisions. We have all made bad decisions. Yours, you are going to [be]
held . . . accountable for those in a very serious way, but what is done is done.” The state
contends that this statement shows that the district court believed it would unduly
depreciate the seriousness of the violation if probation were not revoked. But from this
statement, it is unclear whether “bad decisions” was referring to appellant’s underlying
offense, or appellant’s underlying violation, as required by Austin. In any case, it
certainly does not qualify as a “thorough, fact-specific” finding sufficient to “convey [the
district court’s] substantive reasons for revocation and the evidence relied upon.”
Modtland, 695 N.W.2d at 608.

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