                        This opinion will be unpublished and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
                                   A15-1345

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                 Byron Dean Sayers,
                                     Appellant.

                                Filed April 25, 2016
                              Reversed and remanded
                                    Reyes, Judge

                            Hubbard County District Court
                               File No. 29-CR-14-256

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

Donovan D. Dearstyne, Hubbard County Attorney, Park Rapids, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Klaphake,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

REYES, Judge

       Appellant Byron Sayers challenges his probation revocation, arguing that the

district court did not make sufficient fact findings on any of the necessary factors under

State v. Austin, 295 N.W.2d 246 (Minn. 1980). Because the district court did not make

adequate findings regarding the second and third Austin factors, we reverse and remand.

                                          FACTS

       In 2014, Byron Sayers was on probation and living with his fiancée, B.M. B.M.’s

adult son came to stay with the couple and brought his three firearms with him. The

firearms were stored in an unlocked closet in the couple’s bedroom. On March 7,

Sayers’s probation officer and several police officers arrived at the home to conduct a

check because they had received information that he was keeping a shotgun in his

bedroom closet. Sayers admitted to the officers that the firearms were in his closet, and

the state subsequently charged him with one count of possession of a firearm by an

ineligible person in violation of Minnesota Statutes section 624.713, subdivision 1(2)

(2012). He pleaded guilty to the charge in exchange for a stay of adjudication and ten

years of probation.

       Almost three months after the entry of his plea, Sayers admitted to violating the

terms of his probation by drinking alcohol. The district court ordered Sayers to serve 90

days’ local incarceration and reinstated the stay of adjudication. Several weeks after he

was released from jail, police were called to B.M.’s residence on a report of domestic

violence. Hubbard County deputy sheriff Shane Plautz testified at a contested omnibus


                                             2
hearing on Sayers’s third-degree assault charge that when he arrived at the home he

found Sayers in the kitchen. Sayers appeared to be very intoxicated, but there was no

indication that Sayers had assaulted B.M. The deputy testified that Sayers became

belligerent and attempted to enter the bedroom where B.M. was located. The deputy

tried to block Sayers’s path, prompting Sayers to shove the deputy into the refrigerator

and throw a punch at his head. The deputy pursued Sayers into the bedroom and tackled

him onto the bed and on top of B.M. Another officer helped subdue Sayers by tasing

him, and Sayers was placed under arrest. Deputy Plautz suffered a dislocated shoulder as

a result of the altercation.

       Based on this incident, Sayers was charged with third-degree assault, fourth-

degree assault, and obstructing legal process with force. Sayers’s probation officer also

filed a report alleging that he violated his probation because he failed to abstain from

alcohol, failed to submit to drug and alcohol testing, and failed to remain law abiding.

Sayers pleaded guilty to obstructing legal process with force and admitted that he

violated his probation by drinking alcohol and by failing to remain law abiding. At his

sentencing hearing, Sayers submitted a chemical-dependency assessment that

recommended inpatient alcohol treatment, and he requested that the court give him an

opportunity to attend a treatment program. The district court judge stated that he would

take the issue under advisement.

       At his probation revocation hearing before the same judge, the parties

acknowledged that Sayers had admitted to violating the terms of his probation on two

different occasions since the stay of adjudication had been granted. The district court


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decided to revoke Sayers’s probation and vacate the stay of adjudication, enter a

judgment of conviction, and sentence Sayers to 63 months in prison, stating:

              All right. I am going to vacate the stay of adjudication, Mr.
              Sayers. Those two violations here, both were um, underscored
              by your use of alcohol. And the most recent one, there was an
              emergency call placed, law enforcement responded based on
              allegations of assaultive behavior toward [B.M.]. I know you
              pled guilty to an obstructing charge rather than the assault
              charge. An officer was injured in the course of taking you into
              custody. But, more importantly, I’m seeing an escalation of
              your behaviors. No showing that you are taking the restrictions
              and terms of your probation seriously. You were granted an
              extremely[] huge opportunity by getting the stay of
              adjudication. And I understand the background of the case that
              the guns were somebody else’s. [B.M.’s] son or step-son. But
              nonetheless, they were in your possession. You were
              convicted of that–you pled guilty to that offense. I did not enter
              adjudication at that time, based on a joint request. And so, you
              had the support of the State at that time. They thought that was
              a reasonable way to address this. You have the support of
              probation, even at the time of the first violation. Ms. Welk, as
              I recall, did not think, at that point, your use of alcohol should
              result in you going to prison. But when I look at the whole
              history of this case, I see an escalation and therefore, I am
              going to revoke the stay of adjudication.

       The district court judge did not address Sayers’s earlier request to attend inpatient

alcohol treatment. Sayers now appeals.

                                      DECISION

       When a probationer violates a term of his probation, the district court has the

option to continue probation, revoke probation and impose a stayed sentence, or order

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


                                              4
at 249-50. But 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.” Id. at 250. We review de novo whether the district court has made

the required Austin findings. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).

       Sayers argues that the district court erred by revoking his probation without

making any of the necessary Austin findings. When performing the Austin analysis, the

Minnesota Supreme Court has held that the district court must make specific findings that

convey 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.” Id. at 608. The district court need not issue a written order, but it must

“create [a] thorough, fact-specific record[] setting forth [its] reasons for revoking

probation.” Id. & n.4. Even if the evidence is sufficient to support the revocation, failure

to address all three Austin factors requires reversal and remand. Id. at 606-08 (reversing

and remanding because the district court did not address the second and third Austin

factors). Because the record here does not indicate that the court sufficiently considered

the second and third Austin factors, we reverse and remand.

I.     The First Austin Factor

       To satisfy the first Austin factor, the district court must designate which specific

probation conditions were violated. Austin, 295 N.W.2d at 250. Sayers admitted to

violating the terms of his probation by drinking alcohol on two occasions and by failing

to remain law abiding. At his probation-revocation hearing, both parties acknowledged


                                              5
on the record that these admissions were made. Because the district court’s analysis

references those violations, the record is sufficient for us to conclude that the court

accepted Sayers’s admissions and implicitly found the first Austin factor to be satisfied.

II.    The Second Austin Factor

       Under the second Austin factor, the district court must find that the probationer’s

violations were intentional or inexcusable. Id. Here, it is not evident that the district

court made the necessary findings. Although the district court appears to have

recognized Sayers’s admissions that he violated his probation, this is a separate inquiry

than whether those violations were intentional or inexcusable. The district court’s

analysis does not contain any statements with regard to Sayers’s reasons for the

violations. Because there is no unequivocal statement by the court, Modtland’s

requirement that the court “create [a] thorough, fact-specific record[]” stating the reasons

for the revocation is not satisfied. 695 N.W.2d at 608.

III.   The Third Austin Factor

       The third Austin factor requires the district court to consider whether the need for

confinement outweighs the policies favoring continued probation. Austin, 295 N.W.2d at

250. The district court “must bear in mind that ‘policy considerations may require that

probation not be revoked even though the facts may allow it’ and that ‘[t]he 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 (alteration in original) (quoting

Austin, 295 N.W.2d at 250). In making this determination, the district court considers

whether:


                                              6
              (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.


Id. at 607 (quotation omitted).

       The district court here did not explicitly consider any of the three subfactors, did

not make any findings on the policies favoring probation, and did not make an explicit

finding as to whether the need for Sayers’s confinement outweighed the strong policies

favoring probation. In determining that Sayers’s probation should be revoked, the court

noted what it believed was an “escalation” in his behavior in that his most recent

probation violation involved the injury of a police officer. It also expressed the opinion

that Sayers was not “taking the restrictions and terms of [his] probation seriously.”

Although these findings relate generally to the need to confine Sayers, this is only part of

the necessary analysis. Austin requires the district court to go further and weigh that need

against the policies in favor of probation. Here, the district court did not address the

policies favoring probation, including rehabilitation and whether treatment has failed. In

particular, it failed to address Sayers’s earlier request to attend inpatient chemical-

dependency treatment. Without any consideration of whether such treatment could have

helped Sayers, or why this course of action was inferior to revocation, we lack a

sufficient record to review whether the district court abused its discretion in choosing to

revoke. See id. at 608 (“[I]t is not the role of appellate courts to scour the record to

determine if sufficient evidence exists to support the district court’s revocation.”).


                                              7
Because the record is inadequate with regard to the second and third Austin factors,

including the three subfactors, we reverse and remand for additional findings.

      Reversed and remanded.




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