                          This opinion will be unpublished and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
                                     A15-0333

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                  Joshua Michael Allen,
                                       Appellant.

                                Filed September 14, 2015
                                        Affirmed
                                    Schellhas, Judge

                                Itasca County District Court
                                  File No. 31-CR-12-2728

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

John J. Muhar, Itasca County Attorney, Heidi M. Chandler, Assistant County Attorney,
Grand Rapids, Minnesota (for respondent)

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

         Considered and decided by Schellhas, Presiding Judge; Hudson, Judge; and Reilly,

Judge.
                        UNPUBLISHED OPINION

SCHELLHAS, Judge

      Appellant challenges the district court’s revocation of his probation, arguing that

the need for confinement did not outweigh the policies favoring probation. We affirm.

                                        FACTS

      In November 2012, appellant Joshua Allen pleaded guilty to first-degree felony

driving while impaired (DWI) and gross-misdemeanor violation of an order for

protection (OFP). In December, the district court imposed sentences for both convictions,

stayed execution of the sentences, and placed Allen on seven years’ probation for the

first-degree DWI conviction and two years’ probation for the OFP-violation conviction.

Allen’s conditions of probation required him to refrain from alcohol and controlled-

substance use, attend a Mothers Against Drunk Driving Impact Panel (MADD Panel),

complete Minnesota Adult and Teen Challenge (Teen Challenge), complete the

Intervention Program for Men, obtain a mental-health assessment and follow

recommendations, and take medications in the prescribed dosage and frequency.

      In July 2014, the Minnesota Department of Corrections filed a probation-violation

report, alleging that Allen had (1) tested positive for amphetamines and benzodiazepines

and admitted to consuming alcohol, (2) failed to attend the MADD Panel, (3) failed to

complete the Intervention Program for Men, (4) failed to follow the recommendations of

a mental-health assessment, and (5) admitted to not taking his medications as prescribed.

At his probation-violation hearing in November, Allen admitted to consuming alcohol




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and using the non-prescribed, mood-altering controlled substances, Adderall and Xanax,

but contested the remaining alleged violations.

       Based on Allen’s admission and the hearing testimony, the district court found that

Allen intentionally and inexcusably had violated the terms of his probation by using

alcohol,   amphetamines,      and   benzodiazepines;     failing   to   comply    with   the

recommendations of a mental-health assessment; and failing to take his medications as

prescribed. The court also found that the need for confinement outweighed the policies

favoring probation. The court revoked Allen’s probation and executed his sentences.

       This appeal follows.

                                     DECISION

       “A 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. Osborne, 732 N.W.2d 249, 253 (Minn. 2007) (quotation omitted). If

a district court finds that a defendant violated a condition of his probation after receiving

a stay of execution, the court has “two basic options . . . (1) ‘continue such stay and place

the defendant on probation or order intermediate sanctions . . . ,’ or (2) ‘order execution

of the sentence previously imposed.’” State v. Barrientos, 837 N.W.2d 294, 298–99

(Minn. 2013) (quoting Minn. Stat. § 609.14, subd. 3(2) (2014)). “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 . . . cannot be

counted on to avoid antisocial activity.” Osborne, 732 N.W.2d at 253 (quotation

omitted). “To revoke probation and execute the sentence, . . . the district court must make


                                             3
certain findings required by State v. Austin, 295 N.W.2d 246 (Minn. 1980).” Barrientos,

837 N.W.2d at 299. Specifically, the court must find that the defendant violated a

“specific condition or conditions” of his probation, that “the violation was intentional or

inexcusable,” and that the “need for confinement outweighs the policies favoring

probation.” Austin, 295 N.W.2d at 250.

       Allen does not challenge the district court’s first and second Austin findings; he

challenges the court’s third Austin finding that the need for confinement outweighs the

policies favoring probation. In determining whether the need for confinement outweighs

the policies favoring probation, the district court “must bear in mind that policy

considerations may require that probation not be revoked even though the facts may

allow it and that the purpose of probation is rehabilitation and revocation should be used

only as a last resort when treatment has failed.” State v. Modtland, 695 N.W.2d 602, 606

(Minn. 2005) (quotations omitted). The court also “must 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.” Id. at 606–07

(quotations omitted). The court “should refer” to the 1970 American Bar Association

Standards for Criminal Justice statement that

              [r]evocation followed by imprisonment should not be the
              disposition . . . unless the 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


                                            4
              (iii) it would unduly depreciate the seriousness of the
              violation if probation were not revoked.

Austin, 295 N.W.2d at 251 (quotation omitted).1

       The district court determined that confinement is necessary to protect the public

from further criminal activity by Allen and that Allen is in need of correctional treatment

that can most effectively be provided in confinement. Allen challenges both of these

determinations.2 Allen first argues that an alternative to incarceration is available,

namely, the Teen Challenge Aftercare Program (Aftercare Program). He successfully

completed the primary-care program at Teen Challenge on January 30, 2014, and argues

that, considering his long history of chemical use, “it would be naïve of any court to

believe that [his] long-term success was likely to occur without some bumps in the road”

and that the Aftercare Program is an appropriate rehabilitative resource to address his

behavior.

       The district court addressed Allen’s history of criminal offenses, noting that many

of the offenses involved the use of alcohol or controlled substances. The court also noted

that Allen has had 10 or 11 treatment opportunities, one of which included relapse

prevention services, but has failed to maintain sobriety. The court accordingly found that

Allen has a high risk of continued use. The court also reflected on the seriousness of

1
  “In the years since Austin, the ABA has amended the standards and removed this
statement. See ABA Standards for Criminal Justice: Sentencing 18-7.3 cmt. (3d ed.1994).
In 2005, however, th[e supreme] court repeated Austin’s direction to follow the 1970
draft in Modtland.” Osborne, 732 N.W.2d at 253.
2
 Allen also argues that it would not unduly depreciate the seriousness of the violation if
his probation were not revoked. But the district court made no determination to the
contrary. We therefore do not address this argument.

                                            5
Allen’s offenses of first-degree DWI and violation of an OFP. Given the seriousness of

Allen’s offenses, the historic relationship between his criminal activity and use of alcohol

and controlled substances, and his failure to maintain sobriety and otherwise comply with

probation, the court acted well within its discretion in determining that the need to protect

the public from further criminal activity by Allen outweighs the policies that favor

probation.

       In arguing that the Teen Challenge Aftercare Program is a proper alternative to

incarceration, Allen maintains that “confinement in the controlled environment of a

prison is exceedingly unlikely to have any beneficial effect on his ability to refrain from

antisocial behavior in the community.” The district court considered the Teen Challenge

Aftercare Program, noting that it was a fairly new program and that Teen Challenge

already had provided Allen with relapse prevention and transition services, which had

failed ultimately. The court also noted that Allen previously had found sober housing but

had chosen to leave it in order to live in an environment that was unconducive to his

continued sobriety. The district court did not abuse its discretion by revoking Allen’s

probation and executing his sentences.

       Affirmed.




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