                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2016).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A16-1131

                                    State of Minnesota,
                                        Respondent,

                                             vs.

                                    Lenny Clyde White,
                                        Appellant.

                                  Filed January 30, 2017
                                         Affirmed
                                     Halbrooks, Judge


                              Hennepin County District Court
                                File No. 27-CR-13-19155

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Frank Richard Gallo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Rodenberg, Judge.

                         UNPUBLISHED OPINION

HALBROOKS, Judge

       Appellant challenges the revocation of his probation and execution of his sentence,

arguing that the district court abused its discretion by finding that the need for confinement
outweighs public policies favoring probation.         Because the district court properly

determined that the need for appellant’s confinement outweighs the policies favoring

probation, we affirm.

                                          FACTS

       Appellant Lenny Clyde White is required to register as a predatory offender based

on a 2000 conviction of false imprisonment. In June 2013, White was charged with failing

to register as a predatory offender, in violation of Minn. Stat. § 243.166, subd. 5(a) (2012).

Over the course of White’s criminal proceedings, the district court conditionally released

him, and later revoked his conditional release, on three separate occasions. It revoked his

conditional release twice for failing to abstain from using alcohol and controlled substances

and once for violating an order for protection in an unrelated matter.

       White pleaded guilty to failure to register as a predatory offender, and the district

court stayed execution of a 36-month prison sentence, ordered White to serve 365 days in

a workhouse, and placed him on probation in July 2014. Because the presumptive sentence

was 31-43 months in prison, White’s sentence constituted a downward dispositional

departure.

       In January 2016, White’s probation officer filed a probation-violation report,

alleging that White (1) violated multiple conditions of his probation by missing multiple

appointments with his probation officer, (2) failed to abstain from alcohol use, and

(3) failed to report for random drug testing on eight occasions.          White denied the

allegations in the report.




                                              2
       The district court found that White violated the conditions of his probation and that

his violations were intentional and inexcusable.        It also concluded that White was

unamenable to probation and that the need for confinement outweighs the public policies

favoring probation. To support its decision, the district court stated that White was “in

need of correctional treatment that can only be provided by confinement” and that

“[c]ontinued probation would unduly depreciate the seriousness of the offense.” The

district court revoked White’s probation and executed his 36-month prison sentence. This

appeal follows.

                                      DECISION

       White argues that the district court abused its discretion by relying exclusively on

his prior failures on probation to find that the need for his confinement outweighs the

policies favoring probation. 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.” State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). “The

purpose of probation is rehabilitation and revocation should be used only as a last resort

when treatment has failed.” Id. at 250.

       Prior to revoking probation, a district court must follow the three-factor analysis

identified in Austin by (1) designating the specific condition or conditions that were

violated, (2) finding that the violation was intentional or inexcusable, and (3) finding that

the need for confinement outweighs the policies favoring probation. Id. Because White

does not challenge the district court’s findings on the first two Austin factors, our analysis




                                              3
is limited to whether the district court abused its discretion by finding that the third Austin

factor was satisfied.

       The third Austin factor requires the district court to “balance the probationer’s

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

safety, and base [its] decisions on sound judgment and not just [its] will.” State v.

Modtland, 695 N.W.2d 602, 606-07 (Minn. 2005) (quotations omitted). This factor is only

satisfied if the district court finds

               “on the basis of the original offense and the intervening
               conduct of the offender that:
                      (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 (quoting Austin, 295 N.W.2d at 251). The district court may also consider a

defendant’s downward dispositional departure when deciding whether to revoke probation.

State v. Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015), aff’d on other grounds, 883

N.W.2d 790 (Minn. 2016); State v. Moot, 398 N.W.2d 21, 24 (Minn. App. 1986), review

denied (Minn. Feb. 13, 1987).

       Here, the district court concluded that the need for confinement outweighs the

policies favoring probation because White “is in need of correctional treatment that can

only be provided by confinement” and “[c]ontinued probation would unduly depreciate the

seriousness of [White’s] offense and the numerous violations.”




                                              4
       Confinement Necessary to Effectively Provide Correctional Treatment

       White argues that the district court abused its discretion because it focused only on

his past failures while on probation. The district court found that White was discharged

from treatment and violated his current probation by failing to make scheduled

appointments with his probation officer, failing to abstain from alcohol use, and failing to

submit to random testing. The district court also determined that White’s case “was a

presumptive prison sentence,” but that he “received a downward dispositional departure

and the benefit of probation as part of a plea negotiation.” It referenced his “numerous

violations” on his current probation. Because the district court clearly referenced more

than his past probationary failures, we disagree with White’s characterization of the district

court’s order.

       Next, White contends that the phrase “intervening conduct,” as stated by the

supreme court in Austin and Modtland is limited to post-sentencing conduct when a district

court decides whether to revoke probation and that the district court erred by considering

his prior probationary failures and conditional-release violations. But we note that the

supreme court has concluded that a district court did not abuse its discretion by revoking

an offender’s probationary status based on his “lengthy history of criminal activity and

chronic probation and treatment failures.” State v. Osborne, 732 N.W.2d 249, 256 (Minn.

2007). And we do not address this argument because White’s conduct post-sentencing by

itself provided the district court with a sufficient basis to revoke his probation. See State

v. Vang, 847 N.W.2d 248, 265 & n.9 (Minn. 2014) (declining to resolve an issue that was

not necessary to dispose of the case).


                                              5
       In Austin, the supreme court stated that “it was not unreasonable to conclude that

treatment had failed” when the offender failed to take advantage of treatment opportunities

or “show a commitment to rehabilitation.” 295 N.W.2d at 251. White began violating the

conditions of his probation six months after he was sentenced. Over a one-year period, he

failed to submit to random testing eight times, tested positive for alcohol on three separate

occasions, and provided diluted test samples on four other occasions. In addition, he failed

to meet with his probation agent and was discharged from treatment. Because White’s

probation violations are numerous and he was discharged from treatment, we conclude that

the district court did not err by finding that White “is in need of correctional treatment that

can only be provided by confinement.”

       Unduly Depreciating the Seriousness of the Violation

       The state asserts that the district court also stated an alternative ground for revoking

White’s probation. We agree.

       The third Austin requirement can be satisfied if the district court finds that “(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 (emphasis added). Here, the district

court determined that a continuation of White’s probation would unduly depreciate the

seriousness of his violations. White did not challenge this finding. We conclude that this

determination provided the district court with an alternative basis to revoke White’s

probation.




                                              6
       Because White’s probation violations and underlying offense provided the district

court with two sufficient and independent grounds to revoke his probation, we conclude

that the district court properly exercised its discretion.

       Affirmed.




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