                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0557

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                  Thomas Henry Bundy,
                                      Appellant.

                                 Filed December 22, 2014
                                        Affirmed
                                       Kirk, Judge

                               Dakota County District Court
                               File No. 19HA-CR-11-2328


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

James C. Backstrom, Dakota County Attorney, Hastings, Minnesota (for respondent)

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


         Considered and decided by Hooten, Presiding Judge; Rodenberg, Judge; and Kirk,

Judge.

                         UNPUBLISHED OPINION

KIRK, Judge

         In this appeal following the revocation of his probation, appellant Thomas Henry

Bundy argues that the district court abused its discretion in finding that the need for
confinement outweighed the policies favoring probation because it failed to consider an

inpatient treatment program as an alternative to revocation. We affirm.

                                         FACTS

      In July 2011, respondent State of Minnesota charged appellant with first-degree

criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(g) (2010). In June

2012, appellant pleaded guilty to the charged offense and requested a downward-

dispositional sentencing departure. Before his plea, appellant had started sex-offender

treatment at Project Pathfinder. Appellant’s therapist stated that he was cooperative and

“continues to present as appropriate for outpatient sexual offender treatment.”        The

district court found that appellant was amenable to probation and treatment and departed

from the sentencing guidelines, staying execution of the 144-month sentence, sentencing

appellant to one year in jail, and placing him on probation for 20 years. As a condition of

his probation, the district court ordered appellant to continue attending sex-offender

treatment.

      On August 14, 2012, Project Pathfinder terminated appellant from outpatient

treatment due to behavior in jail that it believed warranted residential treatment.

Appellant’s probation officer then alleged that appellant had violated probation by failing

to attend sex-offender treatment at Project Pathfinder and requested vacation of the stay

of execution. Following a hearing, the district court concluded that the state “failed to

show by clear and convincing evidence a [probation] violation.” But the district court

added conditions to appellant’s probation.      For example, appellant was required to

complete a re-intake process at Project Pathfinder or another treatment program, to


                                            2
abstain from nonconsensual or public sexual activity, and to reside at Union Gospel

Mission.

       After his release from jail, appellant started the re-intake process for outpatient

treatment at Project Pathfinder. According to appellant’s counselor, appellant “presented

as angry or hostile [but] his affective range was within normal limits.” Project Pathfinder

considered appellant “marginally appropriate” for treatment because he had “struggled

with maintaining prosocial and appropriate self-management in the community setting.”

Nevertheless, Project Pathfinder admitted appellant into the program for a 90-day

probationary period, during which he was required to comply with all expectations,

including polygraph testing.

       Appellant took a polygraph in August 2013 to determine whether he was

following the rules of treatment and probation. Project Pathfinder also sought to “further

clarify the behavior that had occurred while [appellant was] in custody.”           Before

beginning the polygraph, the examiner provided a preliminary questionnaire to appellant

regarding “the timeframe since he began [his current] treatment.” In this questionnaire,

appellant admitted to sexual contact with two people during this timeframe in a car and

outdoors, and he admitted being alone with children.

       On September 25, Project Pathfinder again discharged appellant from outpatient

treatment. Project Pathfinder concluded that appellant “was not amenable to outpatient

treatment services” because he had failed “to make goal progress in a timely fashion” and

had disclosed rule violations and “concerning behaviors” during his polygraph. Project

Pathfinder recommended that appellant receive inpatient or secured treatment.


                                            3
According to appellant’s therapist, the only available inpatient program was Alpha

Human Services.

       Appellant’s probation officer then filed a new probation-violation report, alleging

that appellant (1) had not cooperated with the re-intake process at Project Pathfinder

because he was again discharged from the program and found to be withholding

information during treatment sessions; (2) had contact with minors that he disclosed only

as he was about to take a polygraph examination; (3) had sexually touched a

nonconsenting adult; (4) had engaged in grooming behavior toward this adult; and

(5) had failed to report to the address approved by probation. Appellant’s probation

officer requested execution of appellant’s sentence for his “violation of multiple

conditions of his probation.”

       At the probation-violation hearing, appellant’s probation officer testified that

appellant was not amenable to probation because he was “unable to abide by th[e] simple

conditions” of his probation. He recommended executing appellant’s sentence and stated

that alternatives were not “feasible given [his] situation.” The probation officer had

looked into Alpha Human Services, but explained that the program is “highly expensive”

and that Dakota County had paid for only one person to attend a residential program a

decade earlier. Besides the cost, the probation officer expressed concern with Alpha

because it is not secure and appellant could leave at any time.

       Appellant testified that he understood the conditions of his probation, including

that he was not to have sexual contact with anyone other than his wife and that he was to

live at Union Gospel Mission. Appellant admitted that he had sexual contact with two


                                             4
men and that he did not immediately report to Union Gospel Mission. In addition,

appellant stated that he understood he was prohibited from having contact with minors,

but had hugged two minors and was briefly in a home alone with two minors. Appellant

stated that he was willing to cooperate with a treatment program.

       The district court found that appellant had violated conditions of his probation,

stating:

                     I’m making [Austin] findings that the act of what I call
              grooming the 18-year old in the car in the St. Paul parking lot
              was a violation of my conditions of probation. I specifically
              told you no grooming, no touching. . . . After [the previous]
              hearing, I was very clear as to what you could and could not
              do. And to find yourself . . . in a car, with an 18-year old who
              may or may not be vulnerable—we know that person is
              homeless apparently—in a public parking lot was a clear and
              distinct violation of my order.
                     You were to report to the Gospel Mission. You didn’t
              do that right away. . . . I wouldn’t put you in prison for that
              violation but it’s just a totality of the circumstances.

The district court concluded that appellant could not control himself and that his sexual

touching of the 18-year-old was both intentional and inexcusable. In addition, the district

court stated that “all the [Austin] factors are there” and that appellant’s sexual impulses

and actions were serious and likely to “occur again if he wasn’t placed in prison.” The

district court “agree[d] with [probation] that the only safe way for society to make sure

that we don’t have somebody else who is hurt is to place [appellant] in prison.” As a

result, the district court executed appellant’s 144-month sentence. This appeal follows.




                                             5
                                     DECISION

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

continue probation, impose intermediate sanctions, or revoke probation and impose the

stayed sentence. Minn. Stat. § 609.14, subd. 3(2) (2012). 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). We review the district court’s decision that sufficient evidence

exists to revoke probation for an abuse of discretion. Id. at 249-50.

       The district court found that appellant had violated conditions of his probation and

that the violations were intentional and inexcusable. Appellant does not challenge these

findings on appeal. Appellant only challenges the third Austin finding.

       When finding that the need for confinement outweighs the policies favoring

probation, the district court must find the presence of at least one of three policy factors:

(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 most

effectively be provided if he is confined”; or (3) “it would unduly depreciate the

seriousness of the violation if probation were not revoked.” State v. Modtland, 695

N.W.2d 602, 607 (Minn. 2005) (quotations omitted).

       The district court did not specifically state that the need for confinement

outweighed the policies favoring probation. See Austin, 295 N.W.2d at 250. But the

district court did state that confinement was necessary to protect the public and that


                                             6
appellant was likely to reoffend if he was not sent to prison. The district court therefore

considered the first policy factor. See Modtland, 695 N.W.2d at 607.

       The record supports the district court’s conclusion that confinement was necessary

to protect the public from appellant’s further criminal activity. See id. Appellant’s

presumptive sentence for first-degree criminal sexual conduct was 144 months in prison.

See Minn. Sent. Guidelines 4.B (2010) (listing the presumptive 144-month sentence for a

criminal defendant with zero criminal history points). But the district court departed

from the sentencing guidelines and sentenced appellant to one year in jail and 20 years on

probation. When doing so, the district court emphasized that, if appellant violated the

terms of his probation, he could be sent to prison for 144 months. As is often the case

when pronouncing a downward-dispositional departure under the sentencing guidelines,

the district court cautioned appellant to “take advantage of this opportunity” and to

strictly follow the terms of his probation.     But instead of taking advantage of his

opportunity, appellant violated multiple terms of his probation. Appellant’s sexual and

grooming behavior continued even as he was receiving outpatient treatment, and public

safety was put at risk.

       Public safety is implicated whenever a criminal defendant violates probation after

receiving a downward-dispositional departure on a crime that involves a presumptive

prison sentence.     In addition, when a criminal defendant receives a downward-

dispositional departure and violates multiple terms of his probation, “it would unduly

depreciate the seriousness of the violation if probation were not revoked.” See Modtland,

695 N.W.2d at 607. A district court has greater discretion when considering whether to


                                            7
revoke a criminal defendant’s probation after ordering a downward-dispositional

departure because, under the third Austin factor, the need for confinement has already

been determined by the Sentencing Guidelines Commission to outweigh the policies

favoring probation in the typical case. And the fact of appellant’s violation of probation

after a dispositional departure strongly suggests that appellant falls within the range of

typical cases despite the earlier departure.

       But appellant argues that the third Austin factor is not met when a probationer

could be sent to residential treatment rather than prison. Appellant states that the district

court “failed to address whether residential treatment would not have been a better and

acceptable alternative to incarceration.”          But the policy factors do not require

consideration of all alternatives or whether residential treatment is more or less

appropriate than prison. See id. The district court was not required to make a specific

finding that appellant did not qualify for residential treatment. The district court only had

to find that appellant intentionally violated his probation and that the need for

confinement outweighed the policies favoring probation. See Austin, 295 N.W.2d at 250.

Because the district court made these findings, it did not abuse its discretion in revoking

appellant’s probation rather than sending him to residential treatment.

       In State v. Morrow, the district court granted a dispositional departure and placed

the appellant on probation on condition that he enter and complete inpatient treatment at

Alpha. 492 N.W.2d 539, 542 (Minn. App. 1992). But the county refused to pay for this

expensive treatment and the appellant could not afford it. Id. As a result, the district

court sent the appellant to prison. Id. This court determined that the district court did not


                                               8
abuse its discretion by revoking the appellant’s probation because “the intermediate

sanction requiring inpatient treatment at Alpha ceased to be available or practicable.” Id.

at 544.

          Appellant argues that, unlike in Morrow, inpatient treatment at Alpha was

available to him if the county would pay for it. But the county was not required to fund

appellant’s inpatient treatment at Alpha. See id. at 545-46. And probation did not

recommend Alpha both because of its cost and because appellant would be free to leave

its unsecured facility. The district court was not required to discuss Alpha or other

alternatives to imprisonment; it only needed to find that the need for confinement

outweighed the policies favoring probation. See Austin, 295 N.W.2d at 250. In addition,

the record contains no evidence that Alpha is an available or appropriate alternative to

prison.

          The district court did not abuse its discretion in revoking appellant’s probation

because confinement was necessary to protect the public from appellant’s criminal

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

          Affirmed.




                                              9
