State of Minnesota v. August Latimothy Fleming , 2015 Minn. App. LEXIS 72 ( 2015 )

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-2187
State of Minnesota,
Respondent,
vs.
August Latimothy Fleming,
Appellant.
Filed September 8, 2015
Affirmed
Larkin, Judge
Hennepin County District Court
File No. 27-CR-13-431
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Chutich, Judge; and
Klaphake, Judge.
SYLLABUS
Under the plain language of Minn. Stat. § 244.10, subd. 5a(b) (2012), an
aggravated sentence may be based on any aggravating factor arising from the same
course of conduct as the sentencing offense.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
OPINION
LARKIN, Judge
Appellant challenges his aggravated sentence for possessing a firearm as an
ineligible person, arguing that the district court erred by basing its upward durational
sentencing departure on an impermissible aggravating factor. Appellant also challenges
the district court’s decision to revoke his probation, arguing that the district court failed
to make a necessary finding and that the evidence does not support revocation. Because
the aggravating departure factor on which the district court relied is permissible under
Minn. Stat. § 244.10, subd. 5a(b), and because the district court did not err in revoking
probation, we affirm.
FACTS
Respondent State of Minnesota charged appellant August Latimothy Fleming with
possessing a firearm as an ineligible person under Minn. Stat. § 624.713, subd. 1(2)
(2012), and second-degree assault under Minn. Stat. § 609.222, subd. 1 (2012). The
complaint alleged that on October 3, 2012, Fleming was cut with a knife during a dispute
on a basketball court at Folwell Park in Minneapolis and that Fleming responded by
reaching into a backpack, retrieving a gun, and firing it six times. Many adults and
children were present when Fleming fired the gun. Fleming pleaded guilty to both
charges and testified regarding facts that would establish a basis for an aggravated
sentence.
The district court accepted Fleming’s guilty plea and convicted him of the
offenses. At the sentencing hearing, Fleming requested downward dispositional and
2
durational departures from the 60- and 36-month presumptive prison sentences for the
firearm-possession and assault convictions.1 The state opposed a dispositional departure
and argued for an upward durational departure.
The district court granted Fleming’s request for a downward dispositional
departure, as well as the state’s request for an upward durational departure. The district
court sentenced Fleming to serve 90 months in prison for the firearm-possession
conviction, stayed execution of the sentence for eight years, and placed Fleming on
probation. The district court sentenced Fleming to serve a concurrent 36-month prison
term for the assault conviction and stayed execution of that sentence for eight years.
The district court explained that the dispositional departure was based, in part, on
the following circumstances: the victim was the initial aggressor and Fleming had an
imperfect self-defense claim. The district court explained that the upward durational
departure was based on the “unique seriousness” of the offense. The district court’s
memorandum supporting its sentencing order states:
A trial court may impose a sentence above the
presumptive range (or the statutorily mandated minimum
sentence) if the trial court finds a defendant’s actions
represent a greater than normal danger to the safety of other
people.
....
1
The sentences were statutorily mandated. See Minn. Stat. § 609.11, subd. 5(a)
(providing that a defendant who used a firearm to commit second-degree assault “shall be
committed to the commissioner of corrections for not less than three years”), (b)
(providing that a defendant convicted of violating section 624.713, subdivision 1(2),
“shall be committed to the commissioner of corrections for not less than five years”)
(2012); Minn. Sent. Guidelines 2.E.1-2 (2012) (explaining how to determine the
presumptive sentence when an offense triggers application of a statutory mandatory
minimum sentence).
3
Going back to the caselaw and taking into account the
general nature of the aggravating factors that may be
considered, this court finds the danger to the general public—
those innocent children, families, and community members in
the area of Folwell Park—cannot be overstated. Bullets kill
and maim. Bullets do not know their target, and can kill or
maim unintended victims. Mr. Fleming’s actions threatened
to harm or kill at least six people. And, as is readily apparent,
his actions negatively impacted the lives of hundreds[, and]
added to the steady drumbeat of negative reports of crime in
North Minneapolis. Nothing good came out of Mr. Fleming’s
actions.
(Quotation omitted.) The district court imposed several probationary conditions,
including “Do not commit any new offense,” “Stay at least one block away from Folwell
Park in Minneapolis,” and “Make a good-faith effort to obtain or maintain employment
. . . and/or pursue an educational program.”
In May 2014, the probation department filed a report alleging that Fleming had
violated certain conditions of probation. The department filed an updated report in July,
alleging, among other things, that Fleming violated the geographic restriction by being
arrested at a location adjacent to Folwell Park, by having 58 grams of suspected
marijuana in his backpack at the time of his arrest, by being terminated from his job, and
by failing to provide verification of searches for other employment or educational
opportunities.
The district court held a three-day probation-violation hearing and heard testimony
from several witnesses. The district court found that Fleming violated the following
probationary conditions: that he stay outside a one-block radius of Folwell Park, that he
make a good-faith effort to obtain or maintain employment or pursue an educational
4
program, and that he remain law abiding. The district court found that the probation
violations were supported by clear-and-convincing evidence; that the violations were
knowing, intentional, and willful; and that the need for confinement outweighed the
policies favoring probation. The district court identified public safety as a “large
concern.” It also stated:
What just boggles my mind is how you could go
across the street from Folwell Park and as you do it with
drugs in your bag. I don’t buy for an instant that you thought
it was okay to walk through the park because nobody would
know you except for up at the community center. . . . You
know your underlying offense impacted hundreds of people at
the park . . . .
The district court further stated:
[H]ad you committed these infractions and offenses while
you were on conditional release in the last case, I wouldn’t
have departed. . . .
I still think you’ve got hope and promise, but I can’t
ignore the violations. And so I do feel that the policies of
Minnesota which favor probation need to give way in this
case . . . .
The district court revoked 60 months of Fleming’s 90-month firearm-possession
sentence, staying execution of the remaining 30 months of that sentence. However, the
district court stayed the revocation to allow the parties to submit written arguments
regarding whether it had authority to revoke only a portion of Fleming’s firearm-
possession sentence. The district court also requested arguments regarding its authority
to revoke the 36-month assault sentence and continue the stay of execution on the 90-
month firearm-possession sentence. The district court ultimately concluded that
5
revocation of less than 60 months of Fleming’s stayed prison time would be insufficient
to address the probation violations. The district court’s probation-revocation order
explains:
The court finds the need for confinement outweighs
the policies favoring probation. Mr. Fleming was given a
significant opportunity by the court to rehabilitate his
behavior. Instead, Mr. Fleming was found with 58 grams of
marijuana, next to Folwell Park. Given the programming he
completed while incarcerated, and the near exhaustion of
relevant programming opportunities, he is not amenable to
probation and cannot be relied on to avoid antisocial activity.
....
As the court stated [earlier], a revocation of less than
60 months of the sentence would not be enough of a sanction
for Mr. Fleming’s proven probation violations. As the court
cannot revoke only a portion of a stayed prison sentence
while leaving the remainder stayed, and a revocation of less
than 60 months would be an insufficient sanction, the court is
forced to conclude that revocation of the full 90-month stayed
sentence is the correct course of action.
The district court revoked the 90-month firearm-possession sentence and,
following a request by Fleming, executed the concurrent 36-month stayed assault
sentence. Fleming appeals his sentence and the district court’s decision to revoke his
probation.
ISSUES
I. Did the district court rely on an impermissible aggravating factor when ordering
an upward durational sentencing departure for Fleming’s firearm-possession
conviction?
II. Did the district court err in revoking probation?
6
ANALYSIS
I.
Fleming contends that the district court erred by ordering an upward durational
sentencing departure for his conviction of possessing a firearm as an ineligible person. A
district court must order the presumptive sentence specified in the sentencing guidelines
unless there are “identifiable, substantial, and compelling circumstances” to warrant an
upward departure from the presumptive sentence. Minn. Sent. Guidelines 2.D.1 (2012).
Substantial and compelling circumstances demonstrate “that the defendant’s conduct was
significantly more or less serious than that typically involved in the commission of the
offense in question.” State v. Edwards, 774 N.W.2d 596, 601 (Minn. 2009).
A district court’s decision to depart from the presumptive guidelines sentence is
reviewed for an abuse of discretion. State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015).
“If the reasons given for an upward departure are legally permissible and factually
supported in the record, the departure will be affirmed. But if the district court’s reasons
for departure are improper or inadequate, the departure will be reversed.” Edwards, 774
N.W.2d at 601 (quotation omitted). Whether a particular reason for an upward departure
is permissible is a question of law, which we review de novo. State v. Grampre, 766
N.W.2d 347, 350 (Minn. App. 2009), review denied (Minn. Aug. 26, 2009). If the
reasons given by the district court justify the departure, the departure will be affirmed.
Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).
A sentencing court may depart upwardly when “the offense was particularly
serious and represented a greater than normal danger to the safety of other people.” State
7
v. McClay, 310 N.W.2d 683, 685 (Minn. 1981). An offense may be more serious than a
typical crime when a large number of people are placed at risk or more people are put in
fear than in the typical case. State v. Mitjans, 408 N.W.2d 824, 834 (Minn. 1987). The
supreme court has “repeatedly held that the risk to bystanders is an appropriate factor for
courts to consider when determining the seriousness of a crime.” Edwards, 774 N.W.2d
at 607.
The district court in this case granted an upward durational departure because
Fleming’s offense created a greater-than-normal danger to the safety of other people.
The district court stated that “the manner in which Mr. Fleming violated the prohibited-
person statute was more egregious than the typical such case, which normally involves
simple possession” and that “the large number of potential victims . . . [was a] real and
significant danger as a result of his firing the handgun six times in a public park during
the height of its use that day.” The district court concluded that an upward departure was
justified by the “unique seriousness” of Fleming’s conduct and “the danger to the general
public,” which the district court said “cannot be overstated.”
Fleming does not contest that his conduct at Folwell Park created a greater-than-
normal danger to the safety of other people. Instead, Fleming argues that the “aggravated
durational departure was based entirely on the nature of the assault offense.” Fleming
further argues that conduct underlying one conviction for which a defendant was
sentenced cannot be used to support an upward sentencing departure for a separate
conviction. See State v. McIntosh, 641 N.W.2d 3, 9 (Minn. 2002) (citing State v. Spaeth,
8
552 N.W.2d 187, 196 (Minn. 1996), for the rule that a “court may not rely on conduct
underlying one conviction to support a sentencing departure for a separate conviction”).
Fleming’s reliance on the caselaw rule that conduct underlying one conviction
cannot be used to support an upward sentencing departure for a separate conviction is
unavailing in light of Minn. Stat. § 244.10 subd. 5a(b), which took effect on August 1,
2009, and applies to crimes committed on or after that date. 2009 Minn. Laws ch. 59, art.
5, § 8, at 367. The statute provides, “Notwithstanding section 609.04 or 609.035, or other
law to the contrary, when a court sentences an offender for a felony conviction, the court
may order an aggravated sentence beyond the range specified in the sentencing guidelines
grid based on any aggravating factor arising from the same course of conduct.” Minn.
Stat. § 244.10 subd. 5a(b) (emphasis added).
“If the Legislature’s intent is clear from [a] statute’s plain and unambiguous
language, then we interpret the statute according to its plain meaning without resorting to
the canons of statutory construction.” State v. Rick, 835 N.W.2d 478, 482 (Minn. 2013).
The parties agree, as do we, that section 244.10, subdivision 5a(b), is unambiguous.
However, Fleming argues that the statute only allows a departure based on overlapping
factors arising from the same course of conduct in cases involving uncharged and
unsentenced offenses, but not in this case, where multiple offenses were sentenced. The
plain language of section 244.10, subdivision 5a(b), does not include such a limitation.
Moreover, although the Minnesota Supreme Court has not directly reviewed an
upward sentencing departure under section 244.10, subdivision 5a(b), its recent decisions
9
are consistent with the plain language of the statute.2 For example, in Edwards, the
supreme court held that
when a defendant is convicted of several offenses involving
multiple victims arising out of a single behavioral incident, a
sentencing court may use ‘overlapping’ facts of those
offenses as the basis for an upward departure, provided that
those facts show that the defendant committed the offense
being sentenced in a particularly serious way.
774 N.W.2d at 606-07. The supreme court did not apply section 244.10, subdivision
5a(b), because the crime at issue occurred before August 1, 2009. Id. at 608 n.10.
However, the supreme court noted that its holding was “consistent” with section 244.10,
subdivision 5a(b). Id.
And more recently in Hicks, the supreme court held that “a district court may base
an upward durational departure on the defendant’s concealment of a victim’s body when
sentencing a defendant for second-degree unintentional murder” even though “the facts
of concealment of a victim’s body may be part of a single behavioral incident that relate
to both second-degree unintentional murder and [the uncharged offense of] interfering
with a dead body.” 864 N.W.2d at 162. Once again, the supreme court did not apply
section 244.10, subdivision 5a(b), because the crime at issue occurred before August 1,
2009. Id. at 162 n.7. However, the supreme court noted that section 244.10, subdivision
5a(b), “has limited the impact” of caselaw that had restricted the grounds on which a
departure could be based. See id. (referring to State v. Jackson, 749 N.W.2d 353, 357
(Minn. 2008), in which the supreme court concluded that “[a] departure cannot be based
2
We are unaware of any precedential cases reviewing an upward sentencing departure
under Minn. Stat. § 244.10, subd. 5a(b).
10
on uncharged criminal conduct”); see also Tucker v. State, 799 N.W.2d 583, 593 n.1
(Minn. 2011) (Anderson, J., concurring) (noting that “the Legislature statutorily
overruled the restriction adopted in Jackson, in 2009, when the Legislature adopted
Minn. Stat. § 244.10 subd. 5a(b)”).
Given the unambiguous language of section 244.10, subdivision 5a(b), and the
supreme court’s recognition that the statute supplants portions of Minnesota’s sentencing-
departure jurisprudence, we apply the statute’s plain language when assessing the validity
of the departure in this case.
Section 244.10, subdivision 5a(b), authorizes a departure based on any
aggravating factor that arises from the same course of conduct as the felony sentencing
offense. In this case, the district court ordered an aggravated sentence for Fleming’s
firearm-possession conviction because the offense created a greater-than-normal danger
to the safety of other people. The relevant facts are undisputed and support the departure
ground on which the district court relied: Fleming did not merely possess a firearm; he
fired the gun six times on a basketball court in Folwell Park, endangering several adults
and children who were present in the park. It is undisputed that the greater-than-normal
danger and Fleming’s firearm-possession offense arose from the same course of conduct.
Thus, the departure ground on which the district court relied is permissible under the
plain language of Minn. Stat. § 244.10, subd. 5a(b).
Although we base our holding in this case on section 244.10, subdivision 5a(b),
we nonetheless note that the departure ground in this case is also permissible under this
court’s precedent. In Grampre, which was decided before the effective date of section
11
244.10, subdivision 5a(b), this court recognized an exception to the rule that conduct
underlying one conviction cannot be relied on to support a departure on a sentence for a
separate conviction. 766 N.W.2d at 351-52. We reasoned that the rule is justified in part
by Minn. Stat. § 609.035, which prohibits cumulative punishment for conduct that
constitutes more than one offense. Id. at 351. We concluded that because an exception
to the statutory prohibition against multiple punishment applied in Grampre, the rule
prohibiting a departure based on conduct underlying another conviction was inapplicable.
Id. at 352. Specifically, we held that “[p]ursuant to Minn. Stat. § 609.035, subd. 6
(2006), if a defendant is convicted of committing criminal sexual conduct with force or
violence, the district court may impose an upward departure based on evidence that also
supports a conviction of another offense,” notwithstanding the rule that conduct
underlying one conviction cannot be relied on to support departure on a sentence for a
separate conviction. Id. at 348.
Like Grampre, this case involves an exception to the statutory prohibition against
cumulative punishment. The exception provides that “[n]otwithstanding section 609.04,
a prosecution for or conviction of a violation of section 609.165 or 624.713, subdivision
1, clause (2), is not a bar to conviction of or punishment for any other crime committed
by the defendant as part of the same conduct.” Minn. Stat. § 609.035, subd. 3 (2012).
Because Fleming was convicted under section 624.713, subdivision 1(2), the exception to
the statutory prohibition against cumulative punishment under section 609.035,
subdivision 3, applies. And because an exception to the statutory prohibition against
12
cumulative punishment applies, the rule prohibiting a departure based on conduct
underlying another conviction is inapplicable. See Grampre, 766 N.W.2d at 351-52.
We now turn to Fleming’s three arguments in support of reversal. First, Fleming
argues that the greater-than-normal-danger aggravating factor in this case was based on
his act of firing the gun, which was “entirely unrelated” to the firearm-possession
offense. Fleming therefore concludes that his act of firing the gun cannot support the
departure. See Edwards, 774 N.W.2d at 603 (noting “the rule that facts that do not relate
to the offense being sentenced do not (and cannot) show that the offense being sentenced
was committed in a particularly serious way”). But under section 244.10, subdivision
5a(b), the relevant inquiry is whether the aggravating factor arises from the same course
of conduct as the sentencing offense. That statutory standard is indisputably satisfied
here.
Moreover, Fleming fails to recognize that a permissible departure factor may
“relate to” more than one offense. For example, in Hicks, the supreme court stated that
“the facts of concealment of a victim’s body may be part of a single behavioral incident
that relate to both second-degree unintentional murder and interfering with a dead body.”
864 N.W.2d at 162 (emphasis added). The supreme court noted that “in Edwards we
rejected the defendant’s argument that our case law expressly bars the district court from
considering facts to depart simply because those facts related to another offense that
arose out of the same behavioral incident.” Id. (quotation and alterations omitted). The
supreme court reiterated that “facts from a single behavioral incident that relate to
multiple offenses may be relied on to support a durational departure if those facts show
13
that the defendant committed the offense being sentenced in a particularly serious way.”
Id. (quotation omitted). The supreme court’s decision in Hicks undercuts Fleming’s
argument that his act of firing the gun does not relate to his act of possessing the gun. If
the act of concealing a murder victim’s body relates to the underlying murder, we fail to
see why Fleming’s act of firing the gun does not relate to his underlying possession of the
gun.
Next, Fleming argues that the district court “failed to take into account the
separate mitigating factors that [it] pronounced.” Fleming notes that in granting his
request for a dispositional departure, the district court reasoned that Fleming was not the
initial aggressor and that he had an imperfect claim of self-defense. See State v. Behl,
573 N.W.2d 711, 712 (Minn. App. 1998) (“In justification of departure from a
presumptive sentence under the sentencing guidelines, offense-related factors support
durational or dispositional departure but offender-related factors relate only to
dispositional departure.”), review denied (Minn. Mar. 19, 1998). Fleming argues that
those offense-related factors “would indicate that if any durational departure were
appropriate, it would be downward.”
The district court clearly was aware of the offense-related mitigating factors to
which Fleming refers: the district court cited those factors when explaining its rulings on
the competing departure motions. We have no reason to assume that the district court did
not consider those factors when deciding whether to grant a durational departure. See
Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (stating that “on appeal
error is never presumed” (quotation omitted)). The district court’s decision to grant an
14
upward durational departure indicates that it weighed the aggravating offense-related
factors more heavily than the mitigating factors when determining the length of
Fleming’s sentence. See id.Lastly, Fleming argues that the district court impermissibly evaded the statutory
maximum sentence for his assault conviction and the general rule that an upward-
durational departure should not exceed double the presumptive sentence length. A
person convicted of second-degree assault with a dangerous weapon “may be sentenced
to imprisonment for not more than seven years.” Minn. Stat. § 609.222, subd. 1.
“[G]enerally in a case in which an upward departure in sentence length is justified, the
upper limit will be double the presumptive sentence length,” which in this case is 72
months on the assault conviction. State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981).
The fact that Fleming’s 90-month firearm-possession sentence is longer than the
authorized sentence for his assault conviction does not invalidate the durational departure
in this case. It simply reflects the legislature’s determination that a longer sentence is
warranted for possession of a firearm by an ineligible person than for second-degree
assault. Compare Minn. Stat. § 624.713, subd. 2(b) (2012) (setting the statutory
maximum sentence for prohibited firearm possession at 15 years), with Minn. Stat.
§ 609.222, subd. 1 (setting the statutory maximum sentence for second-degree assault
with a dangerous weapon at seven years).
In conclusion, we observe that “[t]he power to fix the limits of punishment for
criminal acts lies with the legislature.” State v. Shattuck, 704 N.W.2d 131, 148 (Minn.
2005); see State v. Jones, 745 N.W.2d 845, 850 (Minn. 2008) (recognizing that the
15
legislature has created statutory exceptions that authorize cumulative punishment for
certain crimes that “reflect legislative determinations concerning specific conduct that is
eligible for increased punishment even when committed as part of the same behavioral
incident”). “[Appellate courts] will defer, subject to constitutional limits, to the
Legislature’s judgment that certain conventional approaches to punishment are not
adequate to protect the public safety, and that different approaches to punishment must be
considered.” State v. Juarez, 837 N.W.2d 473, 483 (Minn. 2013) (quotations omitted).
Although the judiciary may strike down a sentencing statute on constitutional grounds,
Fleming does not argue that section 244.10, subdivision 5a(b), is unconstitutional. See
Jackson, 749 N.W.2d at 365 (Gildea, J., dissenting) (“But in the absence of a
constitutional challenge, we have no authority to rewrite the Guidelines.”). In sum, there
is no basis for this court not to apply Minn. Stat. § 244.10, subd. 5a(b), as written.
Based on the plain language of Minn. Stat. § 244.10, subd. 5a(b), we hold that the
district court did not err by granting an upward durational sentencing departure for
Fleming’s firearm-possession conviction based on the greater-than-normal danger that
Fleming caused to the safety of other people in Folwell Park, where the greater danger
arose from the same course of conduct as his illegal possession of a firearm.
II.
Fleming contends that the district court erred by revoking his probation without
offering “specific reasons as to why the need for confinement outweighed the policies
favoring probation” and because there was insufficient evidence to prove that the need
for confinement outweighed the policies favoring probation.
16
When 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.” State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). In assessing the third
Austin factor, the supreme court has stated that district courts “should refer” to the
following American Bar Association Standards for Criminal Justice:
Revocation followed by imprisonment should not be the
disposition . . . unless the court finds on the basis of the
original offense and the intervening conduct of the offender
that:
(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) (quoting Austin, 295 N.W.2d at
251). “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.” Austin, 295 N.W.2d at 251
(quotations omitted).
A 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.” Id. at 249-50. But district courts must make “fact-specific records setting
forth their reasons for revoking probation,” and whether the district court made the
17
required findings is a question of law, which appellate courts review de novo. Modtland,
695 N.W.2d at 605, 608.
As to the third Austin finding, the district court reasoned that confinement was
necessary to protect the public from further criminal activity, noting that “Fleming was
found with 58 grams of marijuana.” The district court also reasoned that Fleming was in
need of correctional treatment that could most effectively be provided if he was confined,
noting the “near exhaustion of relevant programming opportunities.” The district court
further reasoned that confinement was necessary to avoid unduly depreciating the
seriousness of the violation. The district court stated, “What just boggles my mind is
how [Fleming] could go across the street from Folwell Park . . . with drugs in [his] bag.”
Lastly, the district court reasoned that Fleming is “not amenable to probation and cannot
be relied on to avoid antisocial activity.”
Fleming argues that the district court “failed to make a proper finding on the third
Austin factor” and that “[b]eyond its reflexive recitation of the Austin factors, the
[district] court gave no other reasons for the revocation.” The record belies Fleming’s
contention. The district court provided fact-specific reasons explaining its finding that
the need for confinement outweighed the policies favoring probation. Moreover, the fact
that the district court initially attempted to limit its revocation to a portion of Fleming’s
firearm-possession sentence shows that its decision to revoke probation was not a
reflexive reaction. In sum, the district court’s finding regarding the third Austin factor is
adequate.
18
Fleming also argues that “the evidence was insufficient to prove that the need for
confinement outweighed the policies favoring probation.” Fleming complains that the
district court considered its grant of a downward dispositional departure when deciding
whether to revoke probation. That was a proper consideration. See State v. Moot, 398
N.W.2d 21, 24 (Minn. App. 1986) (affirming probation revocation where district court
“made it clear that the presumptive sentence was commitment to prison and the
downward departure was solely to permit one last attempt to succeed at treatment”),
review denied (Minn. Feb. 13, 1987); Minn. Sent. Guidelines 3.B (2012) (stating that,
when considering whether to revoke a stayed sentence, “[l]ess judicial tolerance is urged
for offenders who were convicted of a more severe offense”).
Fleming also complains that the district court did not consider available
alternatives to prison, such as local jail time or chemical-dependency treatment. But the
district court expressly rejected Fleming’s request for an alternative disposition and
treatment, stating that his admission of marijuana use and request for treatment “flies in
the face of the information we had up until today,” which was that Fleming did not
disclose a marijuana-use issue to probation and that there were not any positive urine-
analysis test results suggesting that marijuana use was a problem for Fleming. Moreover,
Fleming’s probation officer testified, “[A]nything I could think of Mr. Fleming had
already participated in as a juvenile or as an adult at the workhouse and, I mean, I felt
those resources had been exhausted.” Although Fleming currently argues that “there
were tremendous and unexplored resources in the community for drug treatment that
19
might have helped to alleviate [his] problems,” he did not identify an available treatment
program in the probation-revocation proceeding.
Lastly, Fleming asserts that continuing probation would not unduly depreciate the
seriousness of the violations and complains that the district court did not actually evaluate
this criterion. We disagree. The district court’s probation-revocation order notes that “a
revocation of less than 60 months of the sentence would not be enough of a sanction for
Mr. Fleming’s proven probation violations.” That statement reflects the district court’s
consideration of the seriousness of the violations, and we discern no err in the district
court’s determination that the violations were serious enough to warrant revocation.
In sum, the district court did not abuse its broad discretion by concluding there
was sufficient evidence to revoke probation.
DECISION
Under the plain language of Minn. Stat. § 244.10, subd. 5a(b), the district court did
not err by granting an upward durational sentencing departure for Fleming’s firearm-
possession conviction based on the greater-than-normal danger that Fleming caused to
the safety of other people in Folwell Park, where the greater danger arose from the same
course of conduct as his firearm-possession offense. In addition, the district court’s
finding regarding the third Austin factor is adequate, and the district court did not abuse
its discretion in determining that there was sufficient evidence to revoke Fleming’s
probation.
Affirmed.
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