State of Minnesota v. Cole Michael Habinger ( 2016 )

This opinion will be unpublished and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
A16-0749
State of Minnesota,
Respondent,
vs.
Cole Michael Habinger,
Appellant.
Filed December 27, 2016
Affirmed
Kirk, Judge
Blue Earth County District Court
File No. 07-CR-15-1165
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Patrick R. McDermott, Blue Earth County Attorney, Susan B. DeVos, Assistant County
Attorney, Mankato, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and
Kirk, Judge.
UNPUBLISHED OPINION
KIRK, Judge
Appellant challenges the district court’s decision to revoke his probation and to
execute his 36-month prison sentence, arguing that: (1) the court abused its discretion when
it declined to follow probation’s sentencing recommendation, and (2) there was insufficient
evidence to support the court’s finding that revocation was necessary to protect the public.
We affirm.
FACTS
On July 14, 2015, while in custody, appellant Cole Michael Habinger pleaded guilty
to felony driving while impaired (DWI). Pursuant to the plea agreement, appellant was
released directly to an inpatient treatment facility. A sentencing hearing was scheduled for
November 23. On November 10, an arrest warrant was issued for appellant after he
violated the conditions of his presentencing release. Appellant was charged with two new
criminal offenses before he was arrested, one for disruptive intoxication and one for theft.
A preliminary breath test (PBT) indicated that appellant had alcohol in his system at the
time of the theft offense. Appellant was arrested on November 17, and he refused to
provide a urine sample to jail staff at the request of probation. Appellant was remanded to
custody until sentencing.
On November 23, the district court sentenced appellant to 36 months in prison, and
stayed execution for seven years. On December 29, an arrest warrant was issued for
appellant after he violated the conditions of his probation by failing to begin electronic-
alcohol monitoring, to report for a probation meeting, and to provide probation with
accurate contact information after his release from jail. Appellant was arrested on January
31, 2016, and a PBT indicated that he had alcohol in his system.
Appellant was remanded to custody until his February 5 probation-violation
hearing, where he admitted to all three probation violations and that he was out of contact
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with probation for about a month prior to his arrest. Appellant’s probation agent
recommended that he be ordered to serve 90 days in jail, with the possibility of early release
to a secure treatment facility. The state argued that appellant should be ordered to serve
270 days in jail.
The district court stated that it was concerned about appellant and about public
safety because “[w]e’ve been down this road before and we’re always at the same result.”
The district court noted that appellant continued to use alcohol despite completing
treatment, and that, according to the presentence investigation (PSI), appellant was “on a
dangerous path of self-destruction with escalating alcohol and drug use and creating a
significant threat to public safety.” It also noted that before the current offense, appellant
was convicted of “three prior DWIs in a short amount of time all putting [appellant] and
others at risk.” The district court emphasized that appellant basically absconded when he
failed to report to his probation agent, that this violation was very serious, and that it could
not “trust that [appellant] . . . [was] not going to drink and drive again.”
The district court concluded that appellant’s probation violations were “intentional
and inexcusable” and that “the need for confinement outweighs the policies favoring
probation because . . . confinement is necessary to protect the public from further criminal
activity.” The district court executed appellant’s 36-month prison sentence, with credit for
172 days.
This appeal follows.
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DECISION
“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.’”
State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005) (quoting State v. Austin, 295
N.W.2d 246, 249-50 (Minn. 1980)). “Before revoking a probationary sentence, a district
court must: (1) specifically identify the condition or conditions violated; (2) find that the
violation was intentional or inexcusable; and (3) find that the policies favoring probation
no longer outweigh the need for confinement.” State v. Osborne, 732 N.W.2d 249, 253
(Minn. 2007) (citing Austin, 295 N.W.2d at 250). The district court must make specific
findings that establish the “substantive reasons for revocation and the evidence relied
upon” and may not simply “recit[e] the three factors and offer[] general, non-specific
reasons for revocation.” Modtland, 695 N.W.2d at 608. “[W]hether a lower court has
made the findings required under Austin presents a question of law, which is subject to de
novo review.” Id. at 605.
Appellant challenges the district court’s finding on the third Austin factor, arguing
that the district court abused its discretion when it revoked his probation because the record
does not establish that the need to incarcerate him outweighs the policies favoring
probation. Appellant also challenges the evidentiary support for the district court’s finding
that revocation of his probation was necessary to protect the public. He argues that because
his probation violations did not constitute criminal conduct, he did not put the public at
risk. Appellant asserts that it was improper for the district court to rely on his previous
presentence-release violations because those violations are not related to his probation
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violations. Appellant does not cite to any legal authority in support of this assertion.
Appellant requests that this court reverse the district court’s execution of his sentence.
When considering the third Austin factor, “district courts must bear in mind that
policy considerations may require that probation not be revoked even though the facts may
allow it and that the purpose of probation is rehabilitation and revocation should be used
only as a last resort when treatment has failed.” Modtland, 695 N.W.2d at 606 (quotations
omitted). “When determining if revocation is appropriate, courts must balance the
probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and
the public safety, and base their decisions on sound judgment and not just their will.” Id.
at 606-07 (quotations omitted). “The decision to revoke probation 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.” Osborne, 732 N.W.2d at 253 (quotation omitted).
The Minnesota Supreme Court has instructed that, when making findings on the
third Austin factor, district courts should consider whether:
(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.
Modtland, 695 N.W.2d at 607 (quoting Austin, 295 N.W.2d at 251). The district court need
only make a finding on one of the three sub-factors to satisfy the third Austin factor. Austin,
295 N.W.2d at 251.
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At the probation-violation hearing, the district court expressly found that the need
for confinement outweighed the policies favoring probation because confining appellant
was necessary to protect the public. In reaching this conclusion, the district court listed its
justifications, which show that the court did not reflexively revoke appellant’s probation in
response to technical violations. The district court did not believe appellant would remain
law abiding if probation was reinstated, and it concluded that he could not be counted on
to avoid antisocial activity. The evidence the district court relied upon was sufficient to
support its finding that revocation of appellant’s probation was necessary to protect the
public.
The district court satisfied the third Austin factor and did not abuse its discretion by
revoking appellant’s probation. See, e.g., State v. Losh, 694 N.W.2d 98, 102 (Minn. App.
2005) (affirming the revocation of appellant’s probation where “the district court found
[her] continued use and involvement with controlled substances [to be] a danger to the
public interest”), aff’d, 721 N.W.2d 886 (Minn. 2006).
Affirmed.
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