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State v. McGee

Court of Appeals of Minnesota

July 15, 2013

State of Minnesota, Appellant,
v.
Leroy McGee, Jr., Respondent.

UNPUBLISHED OPINION

Hennepin County District Court File No. 27-CR-11-9446

Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

David W. Merchant, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and Willis, Judge. [*]

HALBROOKS, Judge

Appellant State of Minnesota challenges the district court's sentencing order that continued respondent Leroy McGee, Jr.'s probation following a probation violation. The state argues that (1) the district court failed to make findings pursuant to State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980), and (2) revocation is required because the evidence establishes the third Austin factor. Because these arguments are without merit, we affirm.

FACTS

In November 2011, McGee was convicted of driving while impaired, received a stayed prison sentence, and was placed on probation. In November 2012, the probation department filed a violation report and arrest warrant, alleging that McGee violated the conditions of his probation by using alcohol, failing to remain law-abiding, possessing a firearm, and failing to notify probation of police contact.

At his probation-revocation hearing, McGee admitted the alleged violations and pleaded guilty to a gross-misdemeanor charge of being in possession of a pistol without a permit. The state argued that McGee's probation should be revoked in light of his extensive criminal history. But the probation department recommended that the district court continue McGee's probation, impose an intermediate sanction of 365 days in the county workhouse, and order an in-custody chemical-use assessment. Defense counsel requested that the district court follow probation's recommendation, reasoning that it is probation's duty to make recommendations based on its assessments of amenability and because that department would work most closely with McGee during his supervision. McGee asked the district court for "one more opportunity to prove [himself]" and vowed to make a commitment to treatment.

The district court found that McGee violated probation and that his violations were intentional or inexcusable. The district court continued McGee's probation, sentenced him to 365 days in the county workhouse, and ordered an in-custody rule 25 chemical-use assessment. The state appeals that sentencing decision.

DECISION

The state challenges the district court's decision to continue rather than revoke McGee's probation. The 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." Austin, 295 N.W.2d at 249-50.

Before revoking probation, Austin requires that the district court (1) specifically designate the probationary conditions violated, (2) find that the violation was intentional or inexcusable, and (3) find that need for confinement outweighs the policies favoring probation. Id. at 250. The state argues that the district court abused its discretion by failing to make findings pursuant to the third Austin factor. But findings under Austin are not required "before the imposition of any incarceration as a consequence for a probation violation"; they are necessary only when "a defendant's probation is revoked and the underlying sentence is executed." State v. Cottew, ...


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