Lyon County District Court File No. 42-CR-07-1323
Lori Swanson, Attorney General, St. Paul, Minnesota; and Richard R. Maes, Lyon County Attorney, Tricia B. Zimmer, Assistant County Attorney, Marshall, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Cathryn Middlebrook, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Chutich, Presiding Judge; Kalitowski, Judge; and Kirk, Judge.
Appellant Jordan Lee Norgaard contends that the district court abused its discretion when it revoked his probation. He argues that the district court erred by finding that his violation was intentional or inexcusable and that the need for confinement outweighed the policies favoring probation. We affirm.
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." State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). Prior to 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 3) find that need for confinement outweighs the policies favoring probation." Id. at 250. In making the three Austin findings, "[district] courts must seek to convey their substantive reasons for revocation and the evidence relied upon." State v. Modtland, 695 N.W.2d 602, 608 (Minn. 2005).
Intentional or inexcusable violation
Appellant admitted to violating the terms of his probation that prohibited him from using or possessing alcohol when he drank beer at his apartment on the night of his birthday and the following day. Appellant challenges the district court's finding that his violation was intentional or inexcusable, arguing that his decision to consume alcohol was impulsive, he needed aftercare substance-abuse treatment, and he did not commit any new criminal offenses when he violated. But appellant testified that he knew the terms of his probation included not possessing or using alcohol. That appellant acted impulsively and relapsed after a period of sobriety does not make his conduct unintentional or excusable. And appellant was not merely required to abstain from using alcohol and committing a criminal offense, but was required to abstain from drinking or possessing alcohol entirely. Therefore, we conclude that the district court's finding that appellant's violation was intentional or inexcusable is supported by sufficient evidence in the record.
Need for confinement
"In some cases, policy considerations may require that probation not be revoked even though the facts may allow it . . . ." Austin, 295 N.W.2d at 250. "The purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed." Id. The district court must not react reflexively to an accumulation of technical violations but rather "must take care that the decision to revoke is based on sound judgment." Id. at 251.
The district court must balance "the probationer's interest in freedom and the state's interest in insuring his rehabilitation and the public safety." Id. at 250. When weighing these competing ...