                        This opinion will be unpublished and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
                                   A15-1484

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                 Jonathan Earl Brown,
                                      Appellant.

                                 Filed April 4, 2016
                                      Affirmed
                                 Rodenberg, Judge
                           Dissenting, Cleary, Chief Judge

                            Ramsey County District Court
                              File No. 62-CR-11-1058

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, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Cleary, Chief Judge; Rodenberg, Judge; and Smith,

John, Judge.




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                         UNPUBLISHED OPINION

RODENBERG, Judge

       Appellant challenges the district court’s order revoking his probation. Because the

district court properly applied the law and acted within its discretion, we affirm.

                                          FACTS

       In August 2011, appellant Jonathan Earl Brown pleaded guilty to a third-degree

criminal sexual conduct charge. Appellant was sentenced to serve 48 months in prison,

stayed during 15 years of probation.1 A special probation condition required appellant to

attend a sex-offender-treatment program as directed by his probation officer, and contribute

to the cost of the program. Appellant was referred to Project Pathfinder, a sex-offender-

treatment program.     Appellant missed his first appointment at Project Pathfinder in

September 2013. He was charged a copay for the appointment, per Project Pathfinder

policy. Appellant arrived at another appointment on May 5, 2014 without the required

copay. Project Pathfinder rescheduled that appointment as a result, but appellant then

canceled the rescheduled appointment due to his inability to pay the copay.             On

September 30, 2014, appellant finally attended an appointment, completed the intake

process, and scheduled additional appointments for early November.

       Appellant’s probation agreement also prohibited him from having contact with

persons under age 18. In November 2014, appellant violated that prohibition by having

contact with his children. The probation officer reported appellant’s contact with minors


1
 The district court initially imposed a 60-month sentence, but resentenced appellant to the
48-month stayed sentence on December 20, 2012.

                                              2
to Project Pathfinder. This resulted in appellant’s termination from the program. On

November 17, 2014, appellant’s probation officer recommended that appellant’s probation

be revoked because he had contact with minors and failed to complete sex-offender

treatment. On December 11, 2014, the district court reinstated appellant’s probation, with

the additional condition that he serve 120 days in the local jail as an intermediate sanction.

At the probation-violation hearing, the district court again instructed appellant that he still

needed to complete sex-offender treatment, as required by the original probation

conditions.

       On February 24, 2015, appellant was released from jail. His probation officer

testified that, shortly after appellant’s release, he instructed appellant to enroll in a

treatment program. Because Project Pathfinder previously terminated appellant, he had to

reinitiate the intake process to enter that program. Appellant finally contacted Project

Pathfinder on April 22 and asked to start the intake process. He was informed that he owed

an outstanding balance of approximately $200, which must be paid before he could

schedule an intake appointment. At the time of his release from the workhouse, appellant

was homeless and unemployed. With the help of his probation officer, appellant sought

and received a subsidy from Ramsey County to cover a large portion of the cost of

treatment. Appellant also obtained health insurance in April 2015. Appellant enrolled at

Minneapolis Community and Technical College in May 2015. His probation officer made

several suggestions concerning how he might raise funds to pay his outstanding balance at

Project Pathfinder.    Those suggestions included applying at temporary employment

agencies or selling plasma.


                                              3
       On May 22, 2015, the probation officer requested a warrant for appellant’s arrest,

based on a police report that appellant again had contact with a minor, and on appellant’s

failure to complete sex-offender treatment as directed by the court. The probation officer

recommended revocation of appellant’s probation. At a contested probation-violation

hearing on June 15, 2015, the state abandoned the allegation that appellant violated

probation by having contact with minors, and the district court did not consider that alleged

violation. The district court found that the state had presented clear and convincing

evidence that appellant was not enrolled in sex-offender treatment, “nor did he enroll in

treatment as specifically directed numerous times by his probation agent.” The district

court further found that appellant violated a condition of his probation by not entering a

sex-offender-treatment program.       It found that the violation was intentional and

inexcusable, and that the need for confinement outweighed the policies favoring

appellant’s probation. The district court revoked appellant’s probation and executed his

sentence. This appeal followed.

                                     DECISION

       When a probationer violates a condition of probation, the district court may continue

probation, revoke probation and execute the stayed sentence, or order intermediate

sanctions. Minn. Stat. § 609.14, subd. 3 (2014). A district court has broad discretion to

determine whether there is sufficient evidence to revoke probation and will not be reversed

absent an abuse of discretion. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).

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


                                             4
3) find that need for confinement outweighs the policies favoring probation.” State v.

Austin, 295 N.W.2d 246, 250 (Minn. 1980). These required findings are designed to ensure

that revocation is not “a reflexive reaction to an accumulation of technical violations,” but

is based on “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). We review the

district court’s assessment of the evidence for an abuse of discretion, but whether the

district court “has made the findings required under Austin presents a question of law,

which is subject to de novo review.” Modtland, 695 N.W.2d at 605.

Probation condition violation

       Appellant argues that the evidence was insufficient to prove that he violated a

probation condition. He argues that, because he could not afford treatment and was not

given a deadline by which he had to complete a treatment program, the district court erred

in finding that he failed to complete sex-offender treatment.

       It is the state’s burden to prove that an offender violated his or her probation terms

by clear and convincing evidence. Minn. R. Crim. P. 27.04, subd. 3. Here, the district

court found that appellant had signed a probation agreement that included the special

condition that appellant must “attend [a] sex offender program per the [probation officer]

and contribute to sex offender treatment costs.” The district court also found that the state

had “presented clear and convincing evidence that [appellant] was not enrolled, nor did he

enroll in treatment as specifically directed numerous times by his probation agent.”

       Although it is true that appellant’s probation agreement did not establish a deadline

for enrolling in or completing sex-offender treatment, and although appellant’s probation


                                             5
was not set to expire until December 20, 2025, the district court found that appellant’s

probation officer “specifically directed” appellant to enroll in treatment “numerous times”

after appellant was released on February 24, 2015. The probation officer testified, “[E]very

time I spoke to [appellant] I told him you need to get in treatment now. I said if you don’t

get in treatment now, pretty soon there is going to be a warrant for your arrest.” The district

court credited the probation officer’s testimony, and we defer to the district court’s

credibility evaluations in probation-revocation hearings. State v. Losh, 694 N.W.2d 98,

102 (Minn. App. 2005), aff’d on other grounds, 721 N.W.2d 886 (Minn. 2006). The district

court found that appellant “understood that he was running out of time and clearly he was

not in treatment.” The district court also found that a probation condition required

appellant to contribute to the cost of his treatment, and that appellant had not paid the

balance he owed to the treatment program.

       The district court made the first required Austin finding when it found that attending

sex-offender treatment according to terms set by the probation officer was a condition of

probation that appellant violated when he failed to attend treatment. The record evidence

supports the district court’s determination that the condition existed, and that appellant

violated the condition by failing to attend sex-offender treatment as directed by his

probation officer.

Intentional or inexcusable violation

       Appellant argues that his failure to enter sex-offender treatment was neither

intentional nor inexcusable. The district court stated on the record that it found appellant’s

probation violation both intentional and inexcusable.


                                              6
       Appellant could not immediately enroll in treatment upon his release in February

2015 due to his outstanding debt at Project Pathfinder. Where an offender’s poverty

prevents him or her from satisfying a condition of probation, courts must “inquire into the

reasons for the failure to pay” before revoking probation. State v. Morrow, 492 N.W.2d

539, 544 (Minn. App. 1992) (quotation omitted).

              If the probationer willfully refused to pay or failed to make
              sufficient bona fide efforts legally to acquire the resources to
              pay, the court may revoke probation and sentence the
              defendant to imprisonment within the authorized range of its
              sentencing authority. If the probationer could not pay despite
              sufficient bona fide efforts to acquire the resources to do so,
              the court must consider alternative measures of punishment
              other than imprisonment.

Id. (quoting Bearden v. Georgia, 461 U.S. 660, 672, 103 S. Ct. 2064, 2073 (1983)).

       Here, the district court implicitly found that appellant did not make sufficient bona

fide efforts to pay his accumulated costs to enter treatment. The district court found that

while appellant “may have had good intentions, he didn’t . . . act on those intentions.”

Appellant’s probation officer testified that he had suggested legal methods by which

appellant could earn money. The district court credited this testimony and noted on the

record that this agent is “not the kind of probation agent . . . [who] is quick to file a

probation violation . . . . [He] tries very hard to work with his clients . . . to avoid having

to come back to court [on a reported] violation.” The district court found that appellant

“could have come up with a way to get some minimal money to do what [he] needed to do

to pay a small co-pay.” The court addressed appellant during the hearing, stating:

              [F]or whatever reason, I don’t know if your experiences in the
              past with the court have said to you that, you know, we don’t


                                              7
              take things seriously or whatever, there is not going to be the
              kind of consequences that you think it’s worth sort of dragging
              your feet or whatever, but you haven’t done what you needed
              to do.

The district court implicitly found that appellant was not reasonably attempting to do the

things necessary to get back into treatment. We review implicit findings for clear error.

See Vettleson v. Special Sch. Dist. No. 1, 361 N.W.2d 425, 428 (Minn. App. 1985)

(applying the clearly erroneous standard to an implicit finding of fact). And the district

court’s implicit finding of appellant’s lack of reasonable efforts is not clearly erroneous.

       The record also supports the conclusion that appellant’s efforts to initiate contact

with his treatment program once he was released from the workhouse on February 24, 2015

were minimal and insufficient. Appellant did not call Project Pathfinder to start the intake

process until nearly two months after his release. The district court characterized this as

“belated contact” with the treatment program. And this was not the first time appellant had

been slow to comply with the treatment requirement that was a condition of his probation.

Appellant’s probation officer testified, “[W]hen he first was released [in 2012], he

attempted to get into treatment. It took forever. He never actually entered the program as

far as the treatment sessions go.”

       The district court made the second required Austin finding. The district court, being

in the best position to make such a determination, found that appellant’s failure to attend

sex-offender treatment was intentional and inexcusable. The record supports that finding.




                                              8
Need for confinement

       In order to make the third required Austin finding, a district court must determine

that at least one of the following factors is present:

              (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.

Modtland, 695 N.W.2d at 607 (quoting Austin, 295 N.W.2d at 251). Even when a court

finds that a violation is intentional or inexcusable, public policy favors revocation only

where at least one of these three factors supports execution of a prison sentence. State v.

Cottew, 746 N.W.2d 632, 636 (Minn. 2008).

       Here, the district court stated on the record that appellant’s “confinement is

necessary to protect the public from any further criminal activity and it would truly

depreciate the seriousness of this violation at this point in time if the sentence were not

executed.” The district court, concerned that appellant is “an untreated sex offender in our

community,” reviewed appellant’s criminal history and noted his multiple convictions for

violating the predatory-offender-registration law since 2010. The district court interpreted

appellant’s actions as a pattern of “non-compliance with the law,” and expressed surprise

that the probation officer waited as long as he did before filing a violation report, “given

the nature of the charge and the potential danger to the community.”

       In November 2014, appellant had received an intermediate sanction as a result of

his prohibited contact with minors and his failure to complete sex-offender treatment. At

that violation hearing, the district court again told appellant that he still needed to complete


                                               9
sex-offender treatment. Upon his release in February 2015, appellant did not make

immediate contact with the treatment program as instructed by the district court and by his

supervising agent. After appellant belatedly contacted Project Pathfinder, another month

passed before his probation officer filed the violation at issue here. During all of this time,

appellant remained an untreated sex offender. Presented with appellant’s continued failure

to seek treatment, the district court acted within its discretion when it revoked appellant’s

probation after finding that appellant must be confined to protect the public from further

criminal activity.

       The district court also found that it would unduly depreciate the seriousness of the

violation if probation were not revoked. The court addressed appellant, stating, “[F]or

whatever reason, I don’t think that you’ve grasped that when a judge says specifically in

relation to an offense like this, you’re not going to be granted a lot of latitude and a lot of

time to comply.” The district court was referring to appellant’s November 2014 probation

violation and the direction from the court that he must enter sex-offender treatment

expeditiously after completing his jail sentence for that violation. The court continued,

stating, “As far as I’m concerned, you used up your opportunities for probation in the

community. We don’t have unlimited resources for individuals to keep trying and trying

and trying again.” The district court’s statements clearly indicate its determination that

appellant is not taking his probation conditions seriously, and that affording appellant

additional opportunities to comply would unduly minimize his pattern of noncompliance

with important probation conditions. The district court made the third required Austin




                                              10
finding and did not abuse its discretion in determining that the evidence weighed against

continued probation.

       Although the district court might have reached a different conclusion on this record,

it thoroughly analyzed the evidence and applied each Austin factor, stating its findings in a

lengthy record. The court drew supportable conclusions from the evidence. It acted within

its discretion when it revoked appellant’s probation.

       Affirmed.




                                             11
CLEARY, Chief Judge (dissenting)

                Dollars! All their cares, hopes, joys, affections, virtues, and
                associations, seemed to be melted down into dollars. . . . Men
                were weighed by their dollars, measures gauged by their
                dollars; life was auctioneered, appraised, put up, and knocked
                down for its dollars.1

                                                                              Charles Dickens

         I respectfully dissent from the majority’s opinion. While the district court made the

three required Austin findings, the evidence was insufficient to support revocation of

appellant’s probation.

         The Minnesota Supreme Court has instructed district courts to revoke an offender’s

probation “only as a last resort when treatment has failed.” State v. Austin, 295 N.W.2d

246, 250 (Minn. 1980). Courts must balance an offender’s interest in freedom and the

state’s interest in rehabilitating the offender and protecting the public from criminal

activity. Id. “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 (quotations omitted).

         The district court found that appellant did not make sufficient efforts to pay his debt

and attend sex-offender treatment, and that as a consequence his probation violation was

intentional and inexcusable, but did not inquire adequately into the reasons for appellant’s

failure to pay before revoking his probation. See State v. Morrow, 492 N.W.2d 539, 544

(Minn. App. 1992). (“If the probationer could not pay despite bona fide efforts to acquire



1
    The Life and Adventures of Martin Chuzzlewit, 121 (1872).

                                              D-1
the resources to do so, the court must consider alternative measures of punishment other

than imprisonment.” (quoting Bearden v. Georgia, 461 U.S. 660, 666, 103 S. Ct. 2064,

2069 (1983))). In not adequately inquiring, the district court failed to consider and

acknowledge the challenges of homelessness and joblessness. After his release from jail

in February 2015, appellant was required to pay a $200 debt to Project Pathfinder before

he could reinitiate the program’s intake process. Going forward, appellant was expected

to pay a $42 co-payment for each treatment session. These are not insignificant sums for

a probationer without permanent housing and employment. We should not lose sight of

what it means to live on the street while trying to survive. The next meal has a tendency

to take priority over multiple co-payments. Appellant’s probation officer suggested that

appellant sell his blood to cover the cost of treatment. Putting aside the offensive nature

of requiring a man to sell his blood or face prison time, any funds that appellant might

acquire in such a manner would presumably be needed to cover other living expenses as

well.

        It appears that this probation violation hearing was precipitated primarily by an

allegation of alleged contact with minors. But that allegation was dropped, and all that was

left was the failure to pay for treatment. It is true that, as the district court found, appellant

is an untreated sex offender. But treatment in the community is available to appellant, if

he first pays a $200 debt and then pays $42 for every treatment session thereafter. The

record does not show that treatment in the community has failed. Rather appellant’s

untreated condition arises from his lack of financial resources.




                                              D-2
       Appellant’s probation officer expressed frustration with appellant’s failure to enter

treatment, but he also testified to appellant’s efforts to acquire resources that would allow

him to begin treatment. Appellant applied for and received health insurance and a subsidy

to help him cover the cost of treatment. Appellant was also making efforts to enroll in

school. The district court did not explain why these were not sufficient bona fide efforts

to pay the debt that was a barrier to appellant’s treatment. Appellant’s probation agreement

did not set a deadline for enrolling in or completing sex-offender treatment and his

probation did not expire until December of 2025.

       Make no mistake: this violation hearing was about money, or the lack thereof.

Requiring those without means to make co-payments before receiving treatment sets those

probationers up for failure. If sex-offender treatment is truly an important part of offender

rehabilitation and if the public safety is at issue, as it appears to be, the state should be

prepared to pay for the treatment and seek reimbursement from probationers after they have

completed treatment. By preventing indigent sex offenders from receiving sex-offender

treatment due to lack of funds, the state is undervaluing public safety.

       The alleged probation violation was not proved by clear and convincing evidence.

Specifically, it was an abuse of discretion by the district court to find that the violation was

intentional and inexcusable. I would reverse the district court’s order revoking probation.




                                             D-3
