                          This opinion will be unpublished and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
                                     A14-1094

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                  Darren Lee Whitelow,
                                       Appellant.

                                 Filed January 20, 2015
                                        Affirmed
                                     Peterson, Judge

                               Dakota County District Court
                               File No. 19HA-CR-08-3832

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

James C. Backstrom, Dakota County Attorney, Jessica A. Bierwerth, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Stephen L. Smith, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Larkin,

Judge.

                         UNPUBLISHED OPINION

PETERSON, Judge

         In this sentencing appeal, appellant argues that the district court abused its

discretion by revoking his probation and executing his sentence. We affirm.
                                           FACTS

      Appellant Darren Lee Whitelow pleaded guilty to one count of felony domestic

assault following an incident in 2008. The district court imposed a stayed 21-month

sentence and placed Whitelow on probation for five years. Conditions of probation

included that Whitelow serve 120 days in jail, pay a fine and surcharges, submit to a

domestic-abuse assessment and follow all recommendations, follow probationary rules

and regulations, and remain law abiding.

      From 2011 to 2014, Whitelow repeatedly violated the conditions of his probation,

and his conduct was the subject of three probation-violation hearings.       At the first

probation-violation hearing on February 15, 2011, Whitelow admitted that he (1) did not

attend several scheduled appointments that were part of the investigation process for

Dakota County’s request to transfer his probation to Hennepin County and either did not

submit to or did not pass urine tests (positive for marijuana on all of three completed

tests); (2) did not undergo a domestic-abuse assessment despite being directed to do so on

several occasions; and (3) did not remain law abiding by being charged with driving after

revocation and failure to provide proof of insurance. Following the hearing, the district

court continued Whitelow on probation but added the requirement that he complete a

domestic-abuse program at “Home, Inc.”

      At the second probation-violation hearing on February 13, 2013, Whitelow’s

probation officer alleged that Whitelow did not complete a domestic-abuse assessment,

did not maintain contact with his probation officer, and admittedly failed to abstain from

the use of illegal drugs (marijuana), which resulted in denial of Dakota County’s request


                                             2
to transfer his probation to Hennepin County.         Whitelow admitted the violations.

Following the hearing, the district court found that Whitelow violated the terms of his

probation but again reinstated him on probation.          The district court added the

probationary requirement that Whitelow submit to a chemical-dependency evaluation and

follow recommendations. The district court also ordered Whitelow to serve 45 days in

jail.

        A probation-violation hearing on April 4, 2014 addressed the following alleged

conduct:    (1) Whitelow did not complete a domestic-abuse assessment and follow

recommendations; (2) despite Whitelow’s claim that he started classes at Home Inc., staff

there “advised that the offender had never enrolled or started the domestic program”;

(3) Whitelow did not follow the rules and regulations of probation by failing to maintain

contact with his probation officer, missing scheduled appointments, failing to provide an

accurate home address or phone number, and failing to report for a drug test;

(4) Whitelow did not complete a court-ordered chemical assessment despite being

instructed to do so on numerous occasions; and (5) Whitelow did not abstain from

alcohol or controlled substances, admitted to frequent use of marijuana, and submitted a

positive drug test for marijuana.1 Whitelow did not admit the allegations, and the district

court held a contested probation-violation hearing on April 4, 2014. Following the

hearing, the district court found that Whitelow did not comply with any of the terms and

conditions of probation, his violations were intentional and inexcusable, and the need for

1
 A sixth violation was also alleged for a February 2, 2013 conviction of giving a false
name to a police officer. The state agreed to eliminate that allegation because it was
considered in an earlier probation-violation proceeding.

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his confinement outweighed policies favoring his remaining on probation. The district

court revoked Whitelow’s probation, executed his prison sentence, and gave him credit

for time served.

                                     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. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004) (quotation omitted).

Before deciding to revoke probation, the district court must evaluate whether (1) an

offender violated a specific probationary term; (2) the violation was intentional or

inexcusable; and (3) the need for the offender’s confinement outweighs policies favoring

probation. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). “The decision to revoke

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.” Id. at 251 (quotation omitted).

       The district court found that appellant failed to complete a domestic-abuse

assessment, failed to complete domestic-abuse programming, failed to complete a

chemical-health assessment and follow recommendations, and continued to use alcohol

and controlled substances.     The district court also found that these violations were

intentional and inexcusable.

       Appellant challenges only the district court’s finding on the third Austin factor,

that the need for his incarceration outweighed the policies that favor his remaining on

probation.   For the third Austin factor, the district court must analyze whether


                                             4
“confinement is necessary to protect the public from further criminal activity by the

offender,” “correctional treatment . . . can most effectively be provided if [the offender] is

confined,” or “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) (quotation

omitted). Each of these factors is met here. From the time that his first probation-

violation report was submitted in April 2010 until the time that his probation was revoked

in April 2014, appellant failed to complete the most basic terms of his probation,

including submitting to domestic-abuse and chemical-dependency assessments,

remaining law abiding, and maintaining contact with his probation officer.

       At the final probation-violation hearing, Steven Gomez, the senior probation

officer for Dakota County, testified that appellant’s “cooperation and compliance with the

court orders have been very poor” and identified specific instances of appellant’s recent

probation violations. Gomez testified, “[T]he essence of his probation . . . was to address

domestic violence issues and chemical dependency challenges, and there’s actually been

no movement since his – since his sentence in 2008 to complete successfully any of these

programs.” Gomez also noted that appellant’s failure to participate in a domestic-abuse

assessment placed a greater risk of harm on the victim. Gomez recommended that the

district court revoke appellant’s stay of execution because appellant was “not really

working well with probation” and because “he might be better served to work well with

supervised release . . . . It’s a much more stringent form of supervision, plus he will have

an opportunity at a later time to complete domestic programming and [chemical-

dependency] evaluations or a [chemical-dependency] treatment but with more stringent


                                              5
supervision.” Gomez rejected the claim that appellant could not afford to participate in

the required probationary assessments and programs and suggested that the costs could

have been met through county funding or medical assistance, that other offenders have

used those methods to achieve compliance with probationary terms, and that “there has

been a lot of direction from the probation officer” in appellant’s case, without success.

       In arguing against probation revocation, appellant contends that the district court’s

decision was a “reflexive reaction to an accumulation of technical violations,” appellant

did not commit further acts of domestic abuse during the pendency of his probation,

appellant “remained willing to complete the [chemical-dependency] assessment,”

appellant’s drug use posed no appreciable risk to public safety, and the district court

“could have held [appellant] accountable for his choices without casting away all

opportunity for him to remain on probation.” The only one of these contentions that is

supported by the record is that appellant did not commit further acts of domestic abuse

while on probation. Because appellant made little effort to comply with his probationary

requirements over a four-year period, the district court did not abuse its discretion by

revoking appellant’s probation. See State v. Osborne, 732 N.W.2d 249, 256 (2007)

(affirming probation revocation upon record showing offender’s “lengthy history of

criminal activity and chronic probation and treatment failures”); State v. Johnson, 679

N.W.2d 169, 177 (Minn. App. 2004) (affirming revocation of DWI offender’s probation

after offender failed to complete aftercare for chemical-dependency treatment, failed to




                                             6
attend an impact-panel discussion pertaining to driving under the influence, and failed to

refrain from consuming alcohol).

      Affirmed.




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