                        This opinion will be unpublished and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
                                   A15-0553

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                    Johnny Carter,
                                      Appellant

                              Filed December 14, 2015
                                     Affirmed
                                   Harten, Judge

                            Stearns County District Court
                              File No. 73-CR-11-11287

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

Janelle P. Kendall, Stearns County Attorney, Carl Ole Tvedten, Assistant County
Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

Harten, Judge.




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                        UNPUBLISHED OPINION

HARTEN, Judge

       Appellant argues that the district court abused its discretion in revoking his

probation because the need for his confinement did not outweigh the policies favoring

probation. Because we see no abuse of discretion, we affirm.

                                        FACTS

       Following an incident in December 2011, appellant Johnny Carter, a resident of

St. Cloud, Minnesota, was charged with felony DWI, felony DWI (refusal to submit to

chemical test), and gross misdemeanor driving after cancellation. He pleaded guilty to

felony DWI (refusal to submit to chemical test) in exchange for dismissal of the other

counts, the right to move for a downward dispositional departure (66 months in prison,

stayed), or, if the district court did not agree to the departure, a bottom-of-the-box 57-

month sentence, executed.

       In July 2012, appellant was sentenced to 66 months (the midpoint of the range for

someone with appellant’s criminal history score of 5) in prison, stayed; probation for

seven years; 365 days in jail; abstention from the use of alcohol; and participation in an

Intensive Supervision Program (ISP) until released by the agent.

       In July 2013, appellant was convicted of gross-misdemeanor driving after

cancellation.   In October 2013, he tested positive for alcohol consumption, and a

probation violation report was filed. At the hearing, he was sentenced to 30 days in jail

with work-release privileges or electronic monitoring with house arrest and to follow the

recommendations of a chemical dependency evaluation.


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       In June 2014, appellant again tested positive for alcohol consumption with a

preliminary breath test (PBT) result of .026. He therefore failed to complete the ISP. A

probation violation report was filed; at the hearing, appellant admitted the violations and

was sentenced to 45 days in jail (two weeks on house arrest with electric monitoring, the

remainder in jail with work-release privileges).

       In September 2014, appellant once more tested positive for alcohol consumption

with a PBT of .021 and, again, failed to complete the ISP. A probation violation report

was filed; appellant was sentenced to 60 days in jail and ordered to complete a cognitive

MRT program and an updated chemical dependency evaluation and to follow the

recommendations.

       Over the weekend of 22-23 November, appellant called the ISP whereabouts line

to report that he was at home in St. Cloud. His agent then went to appellant’s residence

to administer a breathalyzer test and discovered that appellant was not at home.

Suspecting that appellant was drinking and therefore trying to avoid him, the agent

attempted to contact appellant by leaving messages on his cell phone, visiting his

residence again, and leaving a message with appellant’s girlfriend that appellant should

call the agent.

       On the morning of Monday, 24 November, appellant was at home in St. Cloud.

However, he called the agent and said he was at his sister’s residence in Chanhassen.

Because this trip had not received the required pre-approval from the agent, it was an ISP

violation. When the agent asked appellant if they could meet immediately, appellant said

he could not get a ride until the next day. The agent told appellant to call the ISP


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whereabouts line when he returned to St. Cloud and filed another probation violation

report.

          Appellant did not call the agent until Wednesday, 26 November. Again, although

he was at home, he told the agent he was in Chanhassen and would take an extended

urine alcohol test (ETG). The agent believed that this test would be useless if appellant

had consumed alcohol on 22 November and told appellant that a probation violation

report had been filed, a warrant had been requested, and therefore appellant would be

taken into custody. Appellant, knowing that the agent would recommend prison, told the

agent he would stay in Chanhassen for Thanksgiving the following day.

          On 11 December, appellant was arrested on a warrant. At the probation violation

hearing, he denied the events of 22-26 November. Another probation report was filed,

but the hearing on that violation was continued at appellant’s request. When the hearing

was held, the state asked for execution of the 66-month prison sentence imposed in July

2012; appellant asked for jail time, chemical dependency treatment, and probation.

          At the hearing, appellant testified that he called the agent to say he was at home on

Saturday 22 November, left his home for Chanhassen “shortly after that,” around 8:30

p.m., and returned home around 2:00 or 2:30 Sunday morning. He testified that he did

not call the agent until Monday morning, 24 November, and, although he was then at

home, he told the agent he was in Chanhassen because he “didn’t want him [the agent]

coming to [his] house.” When asked if he had tried to evade his agent between his 24

November phone call and his 11 December arrest, appellant answered that the agent had

told him on the phone, “I’m going to put out a warrant” and further testified that, because


                                                4
the warrant had been put out, appellant did not get a test on the morning of the 24

November at his treatment facility in St. Cloud.

      The district court told appellant:

                [Y]ou’ve been given more than the average number of
               chances a person would have to be successful on
               probation. . . . [Y]ou reverted to drinking again and that gave
               you three violations in a fairly short period of time. And even
               though there is no absolute proof that you were consuming
               alcohol in November of this year [2014], it’s hard to come up
               with any conclusion other than that, given the pattern of not
               being available to surveillance. You knew that [an agent]
               would be there on a moment’s notice to test you if they had
               missed you by accident. And I come to the conclusion that
               you were avoiding the agent because you knew you had been
               drinking and you didn’t want to go to jail for another 45-or
               60-day stint, or worse. And what you ended up doing was
               basically eliminating any chance to get another chance on
               probation. . . . The violations of absconding for that length of
               time, not being available for testing, and eventually avoiding
               and being dishonest with the agent, those are all extremely
               serious violations that were inexcusable and intentional. . . .
               [Your] confinement is necessary to protect the public from
               further criminal activity.

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

sentence, arguing that the policies favoring probation outweighed his need for

confinement.

                                      DECISION

      To revoke probation, the state must provide clear and convincing evidence of

probation violations. Minn. R. Crim. P. 27.04, subd. 2(1)(c)b. This court will not reverse

a probation revocation unless there has been a clear abuse of the district court’s broad

discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).



                                              5
       To revoke probation, the district court must (1) specify the probation condition

that has been violated, (2) find that the violation was inexcusable or intentional, and

(3) determine whether the need for confinement outweighs the policies favoring

probation. Id. at 250. Appellant does not challenge the district court’s determination that

the first two criteria for revoking probation were met.

       As to the third criterion, the need for confinement outweighs the policies favoring

probation when the record, including the underlying offense and intervening conduct,

shows that (1) confinement is necessary to protect the public from further criminal

activity; (2) confinement can most effectively provide the setting for the offender’s

needed correctional treatment; or (3) not revoking probation would unduly depreciate the

seriousness of the violation. Id. at 251. The district court concluded that “[T]o not

execute the sentence would depreciate the seriousness of these most recent violations and

. . . confinement is necessary to protect the public from further criminal activity.”

       Appellant argues that the district court abused its discretion because (1) “[his]

violations were not so serious that execution of the 66-month sentence was the only

appropriate remedy”; (2) “there were meaningful alternative sanctions available, like jail

time and/or continued treatment”; and (3) “the more appropriate option [would have

been] imposing additional time in the local jail, . . . additional time on electric home

monitoring,” and/or “any other appropriate programming like chemical dependency

treatment as a consequence for appellant’s violations.” But this argument ignores the

following facts: (1) the additional jail time, home monitoring, and treatment appellant

identified as “a more appropriate option” had been repeatedly tried, without success;


                                              6
(2) this was appellant’s fourth violation in 17 months while on probation; and (3) only a

short time passed between appellant’s release from jail for a previous violation and 22

November, when he told his agent he was at home, left his home, absconded, and failed

to maintain contact with his agent for 35 hours.

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

       Affirmed.




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