                        This opinion will be unpublished and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
                                   A15-0927

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Keenen Rashad Agee,
                                     Appellant.

                               Filed January 11, 2016
                                      Affirmed
                                 Rodenberg, Judge

                            Dakota County District Court
                            File No. 19HA-CR-13-3056

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

James C. Backstrom, Dakota County Attorney, Jessica A. Bierwerth, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Reilly, Judge.
                        UNPUBLISHED OPINION

RODENBERG, Judge

      Appellant Keenen Rashad Agee challenges the district court’s revocation of his

probation, arguing that the evidence does not establish that the need for confinement

outweighs the policies favoring probation. We affirm.

                                        FACTS

      On September 19, 2013, appellant was charged with first-degree burglary

involving use of a dangerous weapon. On December 9, 2013, he entered an Alford plea

of guilty to the charge. The district court imposed a 57-month prison sentence (the “top

of the box” and higher than the presumptive sentence of 48 months). But the district

court departed downward dispositionally, staying the sentence and placing appellant on

supervised probation for 20 years. The conditions of appellant’s probation included:

(1) serve 365 days in the Dakota County Jail; (2) pay a fine of $200; (3) pay restitution;

(4) remain law abiding; (5) follow the recommendations in his psychological evaluation;

(6) do not use or possess alcohol or controlled substances; (7) commit no same or similar

offenses; and (8) submit a DNA sample. Appellant was not specifically instructed to

establish or to maintain contact with probation, ordered to obey the standard terms and

conditions of probation, or required to sign a written probation agreement. The district

court based its dispositional departure on its finding that appellant was amenable to

probation because he had “completed many programs through the [Dakota County] jail to

help him become a better person and more productive member of society . . . [and] has no

prior criminal history.” At sentencing, the district court judge told appellant, “This is


                                            2
your chance. Your first probation violation is not going to be your first chance. This is

your one and only chance so you need to walk the line. Because if you don’t you’re

going to be going to prison.”

       Appellant’s probation was transferred to Hennepin County on June 5, 2014.1 On

September 12, 2014, a Dakota County probation supervisor filed a probation-violation

report based on appellant’s alleged failure to remain law abiding. He had been charged

with four misdemeanor offenses. At the October 23, 2014 probation-violation hearing,

the district court continued the hearing after appointing counsel to represent him and

specifically stated that appellant must comply with the terms of his probation and that he

needed to remain in contact “with people.” At the January 6, 2015 continued probation-

violation hearing, appellant denied the claimed probation violation for failing to remain

law abiding. He indicated that he was going to treatment for marijuana use and requested

a continuance, which the district court granted.

       On March 3, 2015, appellant requested an additional continuance pending the

resolution of his other criminal charges. The state opposed this request and asked to

proceed on the basis of a March 2, 2015 addendum to the probation-violation report

alleging that appellant violated probation by testing positive for marijuana on seven

occasions, failing to undergo chemical testing as directed by his probation officer, failing

to attend weekly appointments with his probation officer, and failing to complete

chemical-dependency treatment.      Appellant’s counsel requested a short continuance,


1
  Kathy Wieskus, a Dakota County probation officer, testified that a probation transfer is
required if the defendant is considered high risk and is living in another county.

                                             3
stating that he had only received the addendum approximately one hour before the

hearing. The hearing was continued until March 5, 2015, and at the continued probation-

violation hearing, appellant agreed that he had violated his probation by using marijuana

and testing positive for the substance on seven occasions between September 26, 2014

and February 12, 2015.           Appellant also agreed that he missed 13 chemical-testing

appointments.

       The only testimony at the hearing came from appellant and Wieskus. Wieskus

was not appellant’s probation officer, and she had no personal interactions with appellant.

She based her testimony on e-mails and correspondence with appellant’s Hennepin

County probation officer, which were not included in the record. Appellant did not

object to Wieskus’s testimony, and he does not argue on appeal that the district court

plainly erred in receiving it.

       Wieskus testified that, in January 2015, appellant’s probation officer required him

to complete a chemical-health assessment and enroll in outpatient treatment. Appellant

attended treatment for one day. He was discharged for failing to attend after that because

he was in custody. Wieskus also testified that appellant signed a probation agreement

stating that he would attend probation meetings as scheduled. She stated that he was

required to meet weekly with his probation officer after December 13, 2014. Wieskus

testified that appellant missed appointments on September 8, October 9, October 13,

December 10, December 17, December 24, December 31, 2014, and January 7 and

February 23, 2015. Wieskus testified that appellant called a day after the December 10,

2014 missed appointment, asked if he had any warrants, apologized, and promised to be


                                               4
in the following week.      Appellant called one day after he missed three separate

appointments. Wieskus recommended revocation of appellant’s probation.

       Appellant explained that he contacted his treatment counselor after his release

from custody, but had not heard back from his counselor. Appellant admitted not having

contacted his counselor while in custody. He acknowledged his need for treatment and

stated that his chemical use was due to stress from being unable to obtain employment.

Appellant testified that he called his probation officer the same day he missed the

appointments, testimony that the district court did not find credible. Appellant stated that

transportation issues caused his missed appointments.

       The state argued for execution of appellant’s sentence because he had proved

himself not amenable to probation. Appellant noted that other individuals received

multiple chances and asked for “one more [chance]” to succeed.

       The district court revoked appellant’s probation and executed his sentence, finding

that the state had proven by clear and convincing evidence that he had violated probation

by using marijuana, having 7 positive chemical tests, missing approximately 13 chemical

tests, and missing at least 6 appointments with probation. The district court found that

the violations were intentional and inexcusable, and that the need for confinement of

appellant outweighed the policies favoring restating him to probation.         This appeal

followed.

                                     DECISION

       Appellant argues that the district court abused its discretion by revoking his

probation because the record does not establish that the need for confinement outweighs


                                             5
the policies favoring continued probation. When a probationer violates a condition of

probation, a district court may continue probation, revoke probation and impose the

stayed sentence, or order intermediate sanctions. Minn. Stat. § 609.14, subd. 3 (2014).

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). Failure to address all three Austin factors

requires reversal and remand, even if the evidence was sufficient to support the

revocation. State v. Modtland, 695 N.W.2d 602, 606-08 (Minn. 2005) (rejecting this

court’s application of a “sufficient evidence exception” to the Austin findings

requirement).

      “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.” Id. at 605 (quotation omitted). When a district court’s Austin findings

present a question of law, de novo review is required. Id.

      Here, at the contested probation-violation hearing, appellant admitted and the

district court found that appellant violated the conditions of his probation. The district

court found that the violations were not excusable, and that the need for confinement

outweighed the policies favoring probation.

I.    First Austin Factor

      Appellant does not argue that the district court erred by revoking his probation for

violating conditions that were never actually imposed. However, we “may review any


                                              6
order or ruling of the district court or any other matter, as the interests of justice may

require.” Minn. R. Crim. P. 28.02, subd. 11; see also State v. Ornelas, 675 N.W.2d 74,

79 (Minn. 2004) (addressing the first Austin factor after appellant raised the issue for the

first time upon its appeal to that court).

       Violation of a condition of probation not actually imposed by the district court

cannot serve as a basis for revoking probation. Id. at 79-80 (holding that a condition

imposed by a probation officer that the probationer have no contact with certain

individuals, absent an order from the district court, may not support revocation); Minn. R.

Crim. P. 27.03, subd. 4(E)(3) (providing that “[i]f lawful conduct could violate the

defendant’s terms of probation, the [district] court must tell the defendant what that

conduct is” (emphasis added)). Even a probationer’s actual belief that he has violated

probationary conditions is irrelevant if that condition was not actually imposed. Ornelas,

675 N.W.2d at 80 (“[T]hat a probationer . . . believes something to be a condition of

probation does not necessarily make it so.”); State v. B.Y., 659 N.W.2d 763, 769 (Minn.

2003) (holding that a curfew requirement imposed by a juvenile’s probation officer that

was not part of the district court’s order could not support a probation revocation, even

though the juvenile believed he had violated a court-imposed condition).

       A.     Failure to Attend Required Appointments with Probation

       The district court’s first identified basis for revoking appellant’s probation was his

failure to attend required appointments with probation. Although the district court placed

appellant on supervised probation, it did not specify a condition of probation requiring

him to maintain contact with the probation department. However, Wieskus testified that


                                             7
appellant signed a probation agreement requiring him to attend probation meetings and

appointments as scheduled. While no probation agreement is in the record, appellant did

not dispute signing such an agreement.         The district court also placed appellant on

“supervised probation,” which implicitly requires him to meet with probation officers.

And, at the October 23, 2014 probation-violation hearing, the district court specifically

instructed appellant that he needed to remain in contact “with people” after he missed

multiple meetings with his probation agent. Based on these facts, we conclude that

appellant was properly notified of his obligation to meet with probation as directed, and

that the district court did not abuse its discretion by revoking appellant’s probation on this

basis.

         B.     Failure to Submit to Chemical Testing

         The second identified basis for the district court’s probation-revocation order

involved appellant failing and missing chemical tests. Wieskus testified that testing was

required because appellant “was high when he committed the crime.” This claim is

unsupported by the record.           Appellant’s pre-sentence investigation report and

psychological evaluation both state that chemical use was not a factor in the underlying

offense. And testing was not made a condition of appellant’s probation. The district

court erred by considering appellant’s failure to submit to chemical testing as a basis to

revoke his probation because no such probation condition was imposed.

         C.     Use of Marijuana

         The district court specifically required appellant to abstain from the use of alcohol

and controlled substances as a condition of probation.            Appellant admitted using


                                               8
marijuana while on probation to cope with stress. Appellant’s marijuana use was a valid

basis for revoking his probation.

       Because appellant violated his probation by failing to meet with probation and by

using marijuana, the district court did not abuse its discretion in determining that the first

Austin factor had been met.

II.    Second Austin Factor

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

were “intentional or inexcusable.” Austin, 295 N.W.2d at 250. Appellant does not

challenge the district court’s determination that the probation violations were “intentional

and inexcusable.” Because the record supports this finding, the second Austin factor is

satisfied.

III.   Third Austin Factor

       “The purpose of probation is rehabilitation and revocation should be used only as

a last resort when treatment has failed.” Id. Before revoking probation and executing a

prison sentence, a district court must find that the need for confinement outweighs the

policies favoring probation. Id. When assessing whether revocation is proper under the

third Austin factor, the district court must consider whether (1) “confinement is necessary

to protect the public from further criminal activity by the offender,” (2) “correctional

treatment . . . can most effectively be provided if [the offender] is confined,” or (3) “it

would unduly depreciate the seriousness of the violation if probation were not revoked.”

Modtland, 695 N.W.2d at 607. The district court need only find the existence of one of

these subfactors. Austin, 295 N.W.2d at 251. Here, the district court found that two


                                              9
subfactors support revocation of appellant’s probation: that confinement is necessary to

protect the public from further criminal activity by appellant, and that failing to execute

appellant’s sentence “would unduly depreciate the seriousness of the violation.”

Modtland, 695 N.W.2d at 607.

       Appellant argues that the district court’s findings on this factor are not supported

by the record. We disagree. The district court found that confinement was necessary

“based upon the underlying offense and [appellant’s] lack of success on probation.” A

district court may consider an initial downward dispositional departure as relevant to a

later revocation decision. State v. Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015).

“Less 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)). Appellant’s conviction for burglary with a dangerous weapon is a serious

offense implicating public-safety concerns. Minn. Stat. §§ 609.582, subd. 1(b) (2012);

609.11, subd. 4 (2012). Additionally, the district court noted appellant’s failure to attend

probation appointments after the initial report of violations. Its expressed concern about

appellant’s risk to public safety if left unsupervised in the community by not maintaining

regular contact with probation is supported by the record. A district court may properly

revoke probation upon proof of only one of the part-three subfactors.          Austin, 295

N.W.2d at 251. These findings and the record that supports them are sufficient to

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

Austin factor has been satisfied to support revocation of appellant’s probation.


                                            10
       Appellant argues that the district court “had other options to impose as a

consequence for the probation violations” short of executing appellant’s sentence. And it

is axiomatic that a district court may not reflexively revoke probation for any violation of

conditions. See State v. Finch, 865 N.W.2d 696, 705 (Minn. 2015) (holding that a district

court judge was disqualified from presiding over that appellant’s probation-revocation

hearing because of the judge’s unequivocal statement that it would “revoke his probation

for any violation” and its speculation that the appellant had “‘duped’ the court when he

exercised his right to appeal”). But the district court has discretion to revoke probation if

its findings on the Austin factors are supported by the record. Modtland, 695 N.W.2d at

608. On careful review of the record, we are persuaded that the district court here acted

within its discretion in revoking appellant’s probation after making the required Austin

findings.

       Affirmed.




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