                           This opinion will be unpublished and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
                                      A16-0178

                                     State of Minnesota,
                                         Respondent,

                                             vs.

                              Jarvaughn Douglas Washington,
                                        Appellant.

                                   Filed August 29, 2016
                                         Affirmed
                                       Jesson, Judge

                              Hennepin County District Court
                                File No. 27-CR-11-17038

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

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Reyes, Presiding Judge; Stauber, Judge; and Jesson,

Judge.

                          UNPUBLISHED OPINION

JESSON, Judge

         In this probation-revocation appeal, appellant Jarvaughn Washington argues that the

district court abused its discretion by revoking probation and executing his prison sentence
after finding that the need for confinement outweighed the policies favoring continued

probation. Because the district court thoroughly considered the necessary factors before

revoking probation after Washington’s third violation, we affirm.

                                        FACTS

      In January 2013, Washington pleaded guilty to third-degree sale of a controlled

substance. Because Washington admitted to having a firearm in his possession at the time

of the offense, the presumptive sentence was 36 months in prison. Minn. Stat. § 609.11,

subd. 5(a) (2010). The district court imposed the 36-month sentence but stayed execution

and placed Washington on probation. The district court cited Washington’s amenability to

probation and chemical-dependency treatment as well as his acceptance of responsibility

as reasons for the sentencing departure. The district court ordered Washington to abstain

from alcohol and non-prescribed chemicals, to submit to random testing, to complete

chemical-dependency treatment, and to remain law abiding.

      In September 2013, probation filed a violation report alleging that Washington had

failed to submit to drug testing, had failed to abstain from illegal drugs, had been

discharged from chemical-dependency treatment with New Perspectives for using opiates

and PCP, and had been arrested for a drug offense and a misdemeanor theft offense.

Probation later filed an amended violation report noting that Washington had been charged

with fifth-degree possession of a controlled substance. Washington admitted to failing to

submit to drug testing and to being terminated from chemical-dependency treatment. The

district court found Washington in violation of probation and imposed 365 days in jail as




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a consequence. Before completing the full 365 days, Washington was furloughed to a

drug-treatment program in March of 2014.

       Probation filed a second violation report in August 2014. The report alleged that

Washington failed to submit to drug testing 13 times, tested positive for opiates several

times, tested positive for alcohol twice, and was charged with misdemeanor trespassing.

Probation later amended the report to include Washington’s failure to comply with a one-

doctor-one-pharmacy rule the district court had put in place to prevent Washington from

abusing prescription drugs. The amended report also noted that Washington now had three

pending charges: the new trespassing charge and the still-unresolved theft and fifth-degree

controlled-substance charges.

       In October 2014, Washington pleaded guilty to the pending controlled-substance

charge and admitted the probation violation. As a consequence for both the new offense

and the probation violation, the district court ordered Washington to serve 365 days in jail

but granted him an immediate furlough to a drug treatment program.

       On July 27, 2015, probation filed a third violation report. It alleged that Washington

had tested positive for opiates several times, had tested positive for cocaine, and had tested

positive for alcohol three times. The report was later amended to allege that after

Washington’s July 29 release from jail, he submitted positive tests for alcohol, cocaine,

heroin, and other opiates.

       Washington admitted to consuming alcohol. He also admitted to testing positive

for heroin but denied actually using it.       The district court found that Washington

intentionally and inexcusably violated probation only as to the alcohol.


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      Washington’s probation officer recommended that the stayed sentence be executed.

She noted that Washington had been referred to chemical-dependency treatment on four

occasions. Despite this, probation indicated that Washington had tested positive for drugs

or alcohol 19 times between June 3, 2015 and September 10, 2015. Additionally, probation

mentioned the controlled-substance offense Washington committed while on probation.

Finally, probation noted that Washington received a dispositional departure. He was told

at his sentencing hearing that probation would give him one opportunity for treatment, and

that if he failed, probation would recommend execution of his sentence.

      Washington’s attorney asked that he be continued on probation. She argued that his

drug use was the result of chronic pain. She also stated that Washington had completed

chemical-dependency and cognitive skills programming while on probation. At the time

of the most recent violation, Washington was receiving additional treatment from New

Perspectives. Since that violation, he had continued to work with the program.

      The district court found that the need for confinement outweighed the policies

favoring continued probation, revoked Washington’s probation, and executed his 36-

month prison term. This appeal follows.

                                    DECISION

      Before revoking a probationary sentence, the district court must: 1) identify the

specific condition or conditions violated; 2) find that the violation was inexcusable or

intentional; and 3) conclude that the need for confinement outweighs policies in favor of

probation. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980) (collectively referred to as

“the Austin factors”). The district court must make specific findings that establish the


                                            4
“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.” State

v. Modtland, 695 N.W.2d 602, 608 (Minn. 2005). The district court has broad discretion

in determining whether there is sufficient evidence to revoke probation and may be

reversed only for a clear abuse of that discretion. Id. at 605.

       Washington does not challenge the district court’s findings on the first two Austin

factors:    the specific condition violated and that the violation was inexcusable or

intentional. Washington argues, however, that the district court abused its discretion by

revoking probation because the final Austin factor was not met:            that the need for

imprisonment outweighed the policies favoring continued probation. The supreme court

has instructed that, when making findings on the third Austin factor, the district court

should consider whether:

               (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 decision to revoke probation cannot

be a reflexive reaction to an accumulation of technical violations but requires a showing

that the offender’s behavior demonstrates that he or she cannot be counted on to avoid

antisocial activity.” State v. Osborne, 732 N.W.2d 249, 253 (Minn. 2007) (quotation

omitted).




                                              5
       In addressing the final Austin factor, the district court focused on Washington’s need

for “correctional treatment which can most effectively be provided if he is confined.”

Modtland, 695 N.W.2d at 607 (quotation omitted). The district court noted that this was

Washington’s third probation violation. Despite attending multiple community-based

chemical-dependency programs, Washington continued his chemical use. The district

court stated that Washington had been given “enough chances to succeed on the outside

and now really what’s left is to succeed on the inside” and that “the best way, I think, to

try to get you the help you need to deal with this addiction is on the inside in prison where

they do have programs.” The record shows that the district court carefully considered the

appropriate factors before concluding “that the policies that normally favor probation,

which have allowed you to remain on probation through three violations, really now are

outweighed.”

       Washington     argues   that   because    community-based      chemical-dependency

programming remained available, it was not appropriate to revoke his probation and

execute his sentence. But contrary to Washington’s assertion, it does not appear that any

additional community-based options were available to treat his chemical-dependency

issues. Washington’s final probation violation report noted that “[p]robation has exhausted

all resources.” Washington points out that at the time of his third violation, he was working

with New Perspectives and that this program was willing to continue working with him.

But, prior to his first probation violation, Washington was discharged from this same

program for using narcotics during treatment. The fact that he used during his initial

experience with New Perspectives and then violated his probation by using alcohol while


                                             6
working with New Perspectives a second time shows that the program was not an effective

option. The record supports the district court’s finding that Washington was in need of

correctional treatment that could best be provided in prison.

       Washington also argues that curing a chemical addiction that stems from physical

pain takes time and that the district court revoked his probation prematurely.           But

Washington’s final probation violation was not for using a pain killer or other opiate; it

was for alcohol consumption. Moreover, the district court gave Washington multiple

chances over a two-and-one-half year period. This is not a case in which the district court

reflexively revoked probation in response to technical violations. See Osborne, 732

N.W.2d at 253. Washington’s violations included failure in treatment, relapses, and even

a new felony controlled-substance conviction. His behavior demonstrated that he could

not “be counted on to avoid antisocial activity.” See id.

       In addition, the presumptive sentence for Washington’s offense was an executed 36-

month prison term. The district court noted this fact before revoking Washington’s

probation: “I have to look at the number of times you’ve had an opportunity to succeed on

probation especially in a case where the presumption is a prison commit.” (Emphasis

added.) When considering whether to revoke probation, it is appropriate for the district

court to have “[l]ess judicial forbearance . . . for persons violating conditions of a stayed

sentence who were convicted of a more severe offense.” Minn. Sent. Guidelines III.B

(Supp. 2011). We have also indicated that the district court may give a probationer less

leeway when the offender initially received a downward dispositional departure. State v.

Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015), aff’d, ___ N.W.2d ___ (Minn. Aug. 17,


                                             7
2016); see also State v. Moot, 398 N.W.2d 21, 24 (Minn. App. 1986) (affirming revocation

of probation after probationer’s failure to cooperate with treatment, when the district court

made it clear that the presumptive sentence was commitment to prison and the downward

departure was solely to permit “one last opportunity to succeed in treatment”), review

denied (Minn. Feb. 13, 1987). Washington received a downward dispositional departure

for a serious offense that the legislature has determined should generally result in prison.

This further supports the district court’s decision to revoke his probation.

       After receiving a downward dispositional departure, Washington showed through

multiple probation violations that community-based treatment was not working. The

district court gave Washington every opportunity to succeed outside of prison before

reaching the thoughtful and reasoned conclusion that the need for confinement had

outweighed the policies favoring probation. The district court did not abuse its discretion

by revoking Washington’s probation and executing his prison sentence.

       Affirmed.




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