                        This opinion will be unpublished and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
                                   A15-0803

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                                 Ronnie Jo Johnson,
                                    Appellant.

                               Filed February 8, 2016
                                      Affirmed
                                  Klaphake, Judge *

                            Ramsey County District Court
                              File No. 62-CR-12-2676


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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and

Klaphake, Judge.




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                         UNPUBLISHED OPINION

KLAPHAKE, Judge

       Appellant challenges the district court’s revocation of his probation on his

conviction of attempted first-degree criminal sexual conduct.        Because the evidence

supports the district court’s findings that (1) he violated a condition of probation, (2) the

probation violation was intentional or inexcusable, and (3) the need for his confinement

outweighs the policies favoring probation, we affirm.

                                     DECISION

       In November 2012, appellant Ronnie Jo Johnson entered an Alford/Norgaard plea

to a charge of attempted first-degree criminal sexual conduct. He was sentenced to 84

months in prison, stayed for 15 years, with conditions of probation. The district court

continued Johnson on probation after he admitted two probation violations in 2013 and

2014. In October 2014, Johnson admitted a third probation violation based on accessing

social media, possessing pornography, and being terminated from sex-offender treatment.

On the recommendation of his probation agent, the district court again continued him on

probation, ordering that Johnson serve 150 days in the Ramsey County workhouse, “be

furloughed to Zumbro House, upon acceptance to that program,” “continue there in a

secure group-home setting,” and “comply with the Zumbro House policies and

procedures.” In November 2014, Johnson’s probation agent alleged that he had violated

probation a fourth time by failing to reside at Zumbro House and refusing to comply with

its policies. The district court held a contested probation-revocation hearing, revoked

Johnson’s probation, and ordered his sentence executed.


                                             2
       When an offender violates a condition of probation, the 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 a 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 requirement for Austin findings). These required findings are designed

to ensure that revocation is not “a reflexive reaction to an accumulation of technical

violations, but rather is based on “a showing that the offender’s behavior demonstrates that

he or she cannot be counted on to avoid antisocial activity.” Austin, 295 N.W.2d at 251

(quotation omitted). This court reviews the district court’s analysis of the Austin factors

for an abuse of discretion. Modtland, 695 N.W.2d at 605. But whether the district court

has made the required findings presents a question of law, which we review de novo. Id.

Johnson challenges the district court’s findings as to each of the Austin factors.

       Johnson argues that the evidence did not show that he violated a condition of

probation, the first Austin factor.    He maintains that because the relevant probation

condition provided that he be “furloughed to Zumbro House, upon acceptance to that

program,” he could not have violated that condition without acceptance to Zumbro House.

But the president of Zumbro House testified that he did not accept Johnson into that


                                              3
program because, during the course of a 45-minute interview, Johnson did not assume

responsibility for his original offense and stated that he did not want or need the level of

supervision required at Zumbro House. Although the district court recognized that Johnson

participated in the screening process, his failure to gain acceptance to Zumbro House

constitutes a probation violation because it was based on his stated unwillingness to enter

the program. See State v. Muhlenhardt, 403 N.W.2d 638, 639 (Minn. 1987) (holding that

the defendant’s conduct violated his probation requirement to enter a certain treatment

program when he “did not make a good faith effort to gain admission to the program and …

in fact did what he could to avoid being accepted into the program”); State v. Rock, 380

N.W.2d 211, 213 (Minn. App. 1986) (holding that when a court-ordered treatment program

would not accept the defendant because of his unwillingness to work with the program, his

actions reflected a willful violation of probation conditions), review denied (Minn. Mar. 27,

1986). Therefore, the district court did not abuse its discretion by determining that Johnson

violated a condition of probation.

       As to the second Austin factor, the district court found that Johnson committed an

intentional violation of probation because he stated that he was not interested in complying

voluntarily with the level of supervision required at Zumbro House. Johnson points out

that at the very end of the screening interview, he told the interviewer that he could “work

with” that level of supervision. But this court defers to the district court’s credibility

determinations. See State v. Losh, 694 N.W.2d 98, 102 (Minn. App. 2005) (deferring to

district court's credibility determinations in probation-revocation proceeding), aff’d on

other grounds, 721 N.W.2d 886 (Minn. 2006). The district court did not find Johnson’s


                                             4
statement credible and instead credited the interviewer’s testimony that he believed that

once Johnson entered Zumbro House, he would probably not “buy into” the level of

supervision required to live there.

       Johnson notes that the interviewer also denied him admission to Zumbro House

because he failed to accept responsibility for his offense. He points out that he entered an

Alford or Norgaard plea, which does not require him to acknowledge responsibility for his

crime. See State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994) (stating that a defendant

who enters an Alford plea maintains his innocence, but pleads guilty because the record

establishes, and the defendant reasonably believes, that the state has sufficient evidence to

obtain a conviction); Williams v. State, 760 N.W.2d 8, 12 (Minn. App. 2009) (reciting

grounds for a Norgaard plea, including the defendant’s assertion of lack of memory on

essential elements of the offense), review denied (Minn. Apr. 21, 2009). But the district

court did not find that Johnson’s intentional violation of probation related to a failure to

take responsibility for his offense. Rather, based on the record, the district court found that

Johnson was unable to commit to the level of supervision required in a program that could

meet his need for treatment in a secure setting. See Modtland, 695 N.W.2d at 608 (stating

that district courts must “convey their substantive reasons for revocation and the evidence

relied upon”). The district court did not abuse its discretion by finding that the second

Austin factor was satisfied.

       The third Austin factor requires the district court to “find that [the] need for

confinement outweighs the policies favoring probation.” 295 N.W.2d at 250. A district

court may satisfy the third Austin factor if any one of three sub-factors is present:


                                              5
(1) confinement is required to protect the public from additional criminal activity by the

offender; (2) the offender is in need of correctional treatment which can be most effectively

provided by confinement; or (3) it would unduly depreciate the seriousness of the violation

if probation was not revoked. Id. at 251.

       The district court found that the third Austin factor was met because policies

favoring probation and rehabilitation had prompted probation to seek a placement for

Johnson outside of a correctional setting, but that he could not be allowed to be left

unsupervised in the community consistent with public safety. The district court also found

that Johnson needed to be held in the correctional system until probation could find a level

of supervision consistent with public safety outside of that system.

       Johnson argues that the district court’s findings do not reflect consideration of any

listed Austin sub-factor. See id. We disagree. The district court’s findings sufficiently

address the first Austin subfactor: that confinement is necessary to protect the public from

further criminal conduct. See id.

       Johnson also maintains that the record does not support the district court’s finding

on the third Austin factor because his probation agent did not attempt an alternative

placement. But the district court found that Zumbro House had the appropriate level of

supervision for Johnson. The probation agent testified that a comparable program was not

available in the community, and that she had previous clients who had reoffended while

residing in less-secure group homes. Based on this record, the district court did not abuse




                                             6
its discretion by finding that the need for confinement outweighed the policies favoring

probation, and the requirements of the third Austin factor were met.

      Affirmed.




                                            7
