State v. Austin, 49750.

• Decision Date: 03 July 1980
• Docket Number: No. 49750.,49750.
• Citation: 256 Minn. 371,295 NW 2d 246
• Parties: STATE of Minnesota, Respondent, v. Jerry Dean AUSTIN, Appellant.
• Court: Minnesota Supreme Court

295 N.W.2d 246 (1980)

STATE of Minnesota, Respondent, v. Jerry Dean AUSTIN, Appellant.

No. 49750.

Supreme Court of Minnesota.

July 3, 1980.

C. Paul Jones, Public Defender, and Kathy A. King, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Alan L. Mitchell, County Atty., Duluth, Mark S. Rubin, Asst. County Atty., Virginia, for respondent.

Heard before OTIS, YETKA and SCOTT, JJ., and considered and decided by the court en banc.

YETKA, Justice.

On October 19, 1978, the St. Louis County District Court revoked appellant's probation and reinstated his concurrent sentences of 0 to 20 years for burglary and 1 to 5 years for aggravated assault which were to be served in the St. Cloud Reformatory. The alleged grounds supporting revocation were that the appellant "failed to comply with stipulated conditions of release with respect to treatment at Eden Home Facility." Appellant claims that the trial court erred in revoking his probation because he substantially complied with what he understood to be his obligations. He therefore appeals the revocation order. We affirm.

The issues raised on appeal are:

I. Whether the trial court clearly abused its discretion by revoking the appellant's probation.

II. Whether the appellant was given adequate notice of the conditions of his probation and explicit enough instructions by his probation officer.

III. Whether the appellant was denied adequate notice of the alleged grounds supporting revocation.

On December 8, 1977, pursuant to a plea agreement, appellant pled guilty to burglary and aggravated assault charges stemming from an October 7, 1977, incident. Thereafter, the court sentenced him to concurrent terms of 0 to 20 years for burglary and 1 to 5 years for aggravated assault. The sentence was stayed and appellant placed on probation for 6 years. There was testimony that the appellant received a written copy of standard conditions of probation at that time.

On June 9, 1978, a probation revocation hearing was held before the same judge who originally sentenced appellant. The appellant admitted leaving the Eden Day Care Center, a drug treatment program, without the permission of the staff or his probation officer in violation of the probation order. The court found that the appellant had violated the conditions of his probation and revoked the probation. Once more the judge stayed execution of the sentence and placed the appellant on probation for another 6 years. The court orally informed the appellant that the conditions of his probation were: 1) that he spend the first 90 days in the St. Louis County Jail with credit for past jail time; 2) that he obey all the laws of the land and rules set out by the probation officer; 3) that he refrain from the use of intoxicants or controlled substances; and 4) that the Arrowhead Regional Corrections authorities screen him for help with his chemical dependency problem.

At the end of the appellant's 90-day jail sentence, Frank Kampa, the appellant's probation officer, made arrangements for the appellant to be considered for admission to Eden Residential Program (Eden House) in Minneapolis. Mr. Kampa testified that before the appellant went to Minneapolis, he told him that "if for any reason he did not enter the program, he should return to the St. Louis County Jail." He believed he had made clear to the appellant he should return immediately if he was not admitted.

The appellant's mother picked him up the afternoon of Friday, August 11, 1978, and around 8:00 p.m. they arrived at Eden House in Minneapolis accompanied by appellant's girl friend. The appellant's mother and girl friend left him at Eden House with his personal belongings.

A resident at Eden House who acted as an intake counselor interviewed the appellant and gave him some information about the program. Appellant told the resident that he was scared and wanted the weekend to think about his decision to enter the program. One of them suggested that he discuss it with his mother and girl friend. Although the appellant denies it, the resident testified that appellant told him Mr. Kampa said he could make his decision about the program on Monday. The intake counselor had no authority to retain the appellant so he instructed him to call Sunday to tell them his decision. Leaving all of his belongings at Eden House, appellant walked to his girl friend's where he spent the weekend.

The appellant claims that he tried to call Eden House on Sunday but did not get through. There was no record of calls or messages from him despite the fact that all calls are recorded. Monday morning when his mother called to arrange to take him to Eden House, she could not reach him. She panicked and called the center to tell them that she would be bringing him in. Mr. Brock Schumacher, the director of Eden Day, told appellant's mother that he was under the impression that the appellant had failed to come to Eden House on Friday and that he was therefore reporting him to the St. Louis County authorities. Appellant's mother insisted that he had arrived on Friday, but Mr. Schumacher was not persuaded.

The appellant and his mother then made several attempts to get him into a drug treatment program. On Tuesday, August 15, appellant had an interview with the director of Nexus, another drug treatment program in the Twin Cities, in hopes that he could help him get into Eden House. The next day, Schumacher personally told the appellant that he would not be admitted to Eden House so he should turn himself into the jail. Appellant planned to return to St. Louis County Jail that night, but his mother asked him to wait until Thursday so that she could drive him. On Thursday, August 17, the appellant voluntarily returned to St. Louis County Jail.

Meanwhile, on Monday, August 14, Schumacher called the Arrowhead Corrections Office where he reported to Michael Farrell, who was acting as appellant's probation officer, that appellant had failed to appear at Eden Center on Friday and consequently would not be admitted to the program. Once Schumacher realized that appellant had appeared, he wrote Arrowhead saying that the appellant had arrived but lied to an admission officer and failed to show a commitment to the program so would not be admitted. The letter did not arrive until Wednesday, and as a result of the erroneous conversation on Monday, Farrell obtained a bench warrant for appellant dated Tuesday, August 15.

On August 21, 1978, appellant was given notice of the following alleged grounds for revocation: "failure to follow through with stipulated conditions of release with respect to treatment at Eden Home facility." A hearing was held on September 28, 1978. Schumacher testified that, as of the time of the hearing, the appellant would be considered a good risk for the Eden program and would be accepted. Nevertheless, on October 19, 1978, the court revoked appellant's probation and reinstated his sentence. Appellant now appeals that order.

The trial 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 ex rel. Halverson v. Young, 278 Minn. 381, 154 N.W.2d 699 (1967); United States v. Strada, 503 F.2d 1081, 1085 (8th Cir. 1974).

The threshold question in this case is what findings a trial court must make before revoking probation. For the future guidance of the lower courts, we adopt a three-step analysis which requires that before probation be revoked, the court must 1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that need for confinement outweighs the policies favoring probation.

Although the lower court found that the appellant was "in violation of the terms of his probation" and did not designate which condition he violated, there was sufficient evidence to warrant finding that the appellant intentionally disobeyed his probation officer's instructions, and we therefore find no abuse of discretion in the decision to revoke probation. Pearson v. State, 308 Minn. 287, 241 N.W.2d 490 (1976).

Appellant's probation officer testified that he instructed appellant to return to the St. Louis County Jail if he was not admitted to Eden House and that the appellant appeared to understand that he was to return immediately if he did not enter the program. Between the evening of Friday, August 11, 1978, and Thursday, August 18, 1978, the appellant was neither at Eden House nor at the St. Louis County Jail. Consequently, the trial judge did not err in finding appellant had failed to comply with a condition of his probation.

The appellant relies on State v. Nakamura, 59 Haw. 378, 581 P.2d 759 (1978), to argue that his failure to comply was excusable. The case involved a probationer who had specifically requested to spend up to 10 hours with his mother. The drug treatment program denied him the request and refused to admit him when he, nevertheless, visited his family. The lower court revoked his probation because he violated the condition ordering him to enter that specific program until clinically released. The appellate court reversed on the grounds the drug treatment program had been arbitrary in rejecting him and the lower court inflexible about considering other programs. The appellate court relied heavily on the facts that the appellant had been a model probationer, who had been admitted to another program, and the importance of the familial relationships where there was no evidence his visit would be detrimental to his rehabilitation.

The present case is distinguishable. The appellant has not been a model probationer, he was not admitted to another program, he had not attempted to get permission to visit with his family, he did not call Eden House on Sunday, and there is no evidence that the weekend he was absent was not detrimental to his...