                          This opinion will be unpublished and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
                                     A15-0068

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                  Kelly Eugene Jenkins,
                                        Appellant.

                                  Filed August 24, 2015
                                        Affirmed
                                      Hooten, Judge

                               Anoka County District Court
                                File No. 02-CR-13-5685

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)

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

       Considered and decided by Halbrooks, Presiding Judge; Worke, Judge; and

Hooten, Judge.

                         UNPUBLISHED OPINION

HOOTEN, Judge

       In this appeal from the district court’s revocation of his probation, appellant argues

that the district court erred in revoking his probation and executing his sentence upon his
failure to complete inpatient chemical dependency treatment when that requirement was

never made a condition of his probation. Because the district court’s revocation was

based upon appellant’s admission that he intentionally violated specific conditions of

probation, and his failure to complete chemical dependency treatment was only

considered in the determination of whether he was amenable to probation, we affirm.

                                             FACTS

       Appellant Kelly Eugene Jenkins provided alcohol to a 16-year-old girl and then

sexually assaulted her. Because the victim was too traumatized from the sexual assault to

provide testimony at appellant’s anticipated trial, the state offered appellant a stayed

prison sentence in exchange for his plea of guilty to one count of first-degree criminal

sexual conduct. Appellant accepted the state’s offer and pleaded guilty. The district

court accepted appellant’s plea, and, consistent with the state’s offer, placed appellant on

probation for 30 years. There is no record at the sentencing hearing that there was any

discussion or determination by the district court that appellant was amenable to

probation. The district court imposed several conditions of probation, including the

requirements that appellant (1) abstain from using alcohol, (2) follow all of his probation

officer’s instructions, and (3) remain law-abiding.

       Just three months later, the state alleged that appellant was regularly consuming

alcohol and had refused to comply with his probation officer’s instruction to notify the

officer any time that he changed his address. Appellant waived his right to contest these

violations and admitted to the violations.




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       Two weeks later, the state alleged that appellant provided alcohol to an underage

girl who was diagnosed with fetal alcohol syndrome. The state indicated that with this

act, appellant violated the probation condition requiring him to remain law-abiding. His

probation officer also indicated that he had received reports that appellant continued to

spend “considerable time” at the “Teen Area” in the Minneapolis Public Library. The

state also alleged that in the time since appellant admitted to regularly consuming alcohol

and refusing to provide his probation officer with changes in his address, appellant had

continued to violate these conditions of probation.

       At a probation violation hearing, appellant admitted to intentionally providing

alcohol to an underage girl. Appellant also told the district court that he was intentionally

continuing to consume alcohol and conceded that he was intentionally refusing to inform

his probation officer of his changes in residency. Appellant stated that he knew that he

had intentionally violated these three conditions of probation with these acts.

       The probation officer argued that the district court should revoke appellant’s

probation because during the “short time” he had been placed on probation, appellant

continued to seek out contact with young girls and admitted to providing alcohol to one

girl, the very act that appellant engaged in before sexually assaulting the victim in his

underlying conviction. The probation officer also indicated that appellant had been “very

difficult to supervise” because he refused to maintain any contact with the officer.

       Defense counsel did not dispute that appellant intentionally violated three of the

conditions of his probation.      Counsel asked only that the district court “consider




                                             3
furloughing” appellant to inpatient chemical dependency treatment so that he could

address his struggles with chemical dependency.

       The district court indicated that it was troubled by appellant’s admissions, and it

stated that the violations could support revoking appellant’s probation. But, in accepting

defense counsel’s request that appellant be furloughed for inpatient chemical dependency

treatment, the district court stated that it would withhold final disposition for appellant’s

admitted violations of probation for 30 days.

       When appellant returned for the disposition hearing 30 days later, the district court

was informed that appellant had been involuntarily discharged from treatment. The

district court then revoked appellant’s probation after rejecting his arguments that his

prior violations were the result of his lack of access to chemical dependency treatment

and that he should be afforded another attempt to seek treatment. This appeal followed.

                                     DECISION

       The district court has discretion to revoke probation if it finds that (1) the

probationer violated a condition of probation, (2) the violation was intentional or

inexcusable, and (3) the need for confinement outweighs the policies favoring probation.

State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). Under the first Austin factor, the

condition of probation “must have been . . . actually imposed by the [district] court” for it

to form the basis of the court’s decision to revoke probation. State v. Ornelas, 675

N.W.2d 74, 80 (Minn. 2004). The state bears the burden of proving a probation violation

by clear and convincing evidence. Id. at 79. In assessing the third Austin factor, the

district court should consider whether:


                                             4
                     (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.

State v. Modtland, 695 N.W.2d 602, 607 (Minn. 2005) (quotation omitted).

       We affirm because the district court found that all three Austin factors indicated

that probation should be revoked, and appellant does not directly challenge these

findings. First, the district court found that the first two Austin factors were satisfied

based on testimony at the revocation hearing. The district court heard the probation

officer’s allegations of the violations and appellant then admitted to the district court that

he intentionally violated the three conditions of probation. The district court found that

the probation officer’s allegations and appellant’s admissions were clear and convincing

evidence. Appellant does not dispute any of these findings on appeal. We therefore

affirm the district court’s findings that clear and convincing evidence demonstrates that

the first two Austin factors were satisfied at the first revocation hearing. See 295 N.W.2d

at 250; see also Ornelas, 675 N.W.2d at 80.

       The district court found that the third Austin factor was satisfied at the second

disposition hearing. The district court first heard testimony related to the third Austin

factor at the first revocation hearing when the probation officer testified that appellant

could not successfully obtain correctional treatment without confinement. Appellant’s

counsel did not dispute the probation officer’s allegations or district court’s findings

under the first two Austin factors. But, he did challenge the probation officer’s argument



                                              5
regarding the third Austin factor and argued that confinement was not necessary because

counsel had arranged for appellant to obtain inpatient chemical dependency treatment,

which counsel believed was the source of appellant’s violations. After hearing this

testimony, the district court stated that, “I don’t think that there’s any way you are going

to make it through probation.” But, the district court declined to make any explicit

findings on the third Austin factor at this time, and it agreed to defer its decision on the

final disposition of revocation for 30 days to allow appellant to obtain chemical

dependency treatment to demonstrate that he was amenable to probation.

       When the parties returned to the district court for disposition 30 days later, after

appellant had failed to make progress in treatment, the district court made its findings

under the third Austin factor and revoked appellant’s probation. The district court stated

that providing alcohol to a minor girl was “extremely, extremely serious” and “the need

for confinement outweighs the theories that favor supervising him on probation.” The

district court’s rationale was based on two findings: that appellant could not obtain

treatment without confinement, and “to not execute the sentence at this point would

unduly depreciate the seriousness” of the probation violations. On appeal, appellant does

not directly dispute the district court’s findings, and we hold that the district court’s

findings support revocation under the third Austin factor. See Modtland, 695 N.W.2d at

607 (noting that revocation is supported if the district court finds that failing to revoke

probation would unduly depreciate the seriousness of the violation or that the offender’s

need for correctional treatment can most effectively be provided while appellant is

confined).


                                             6
       Appellant’s only argument in support of his challenge was that the district court

“very clearly” based its decision to revoke probation on his “discharge from treatment,”

despite the fact that successful completion of treatment was not a condition of his

probation.   The record does not support his characterization of the district court’s

findings. The record unambiguously reveals that the district court’s findings under the

first Austin factor were based entirely on the three violations to which appellant admitted

at the revocation hearing. Appellant’s unsuccessful treatment could not form the basis

for the district court’s findings under the first Austin factor because the district court

made those findings before appellant unsuccessfully sought treatment.

        To the extent that appellant’s discharge from treatment affected the district

court’s decision, it was under the third Austin factor. By observing that appellant failed

to make any progress in treatment, the district court repeated its belief that nothing in the

record indicated that appellant could successfully comply with his probation requirements

for the next 30 years. Appellant does not contend that the district court could not use this

fact in its analysis under the third Austin factor, and our supreme court has explicitly

stated that a probationer’s need for correctional treatment is relevant under the third

Austin factor. See id. And, at the first revocation hearing, appellant explicitly asked the

court to delay its disposition to allow appellant to seek treatment and hopefully

demonstrate his amenability to probation. That is, appellant specifically asked the district

court to find that his experience with treatment was relevant to the third Austin factor.

       The record reveals that no one has ever suggested that appellant is amenable to

probation, and the district court’s decision to stay the original sentence had nothing to do


                                              7
with appellant’s amenability to probation. Because appellant admitted to intentionally

violating three conditions of his probation and his inability to complete chemical

dependency treatment supported the district court’s finding that the need for confinement

outweighed the policies favoring probation, we affirm the district court’s well-reasoned

decision to revoke appellant’s probation and execute his sentence.

      Affirmed.




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