This opinion will be unpublished and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
A14-1391
State of Minnesota,
Respondent,
vs.
Will Scott,
Appellant.
Filed February 23, 2015
Affirmed
Larkin, Judge
Hennepin County District Court
File No. 27-CR-12-11958
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Chelsie Willett, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Johnson, Judge; and
Larkin, Judge.
UNPUBLISHED OPINION
LARKIN, Judge
Appellant challenges the district court’s revocation of his felony probation for
driving while impaired. He argues that the state did not prove by clear-and-convincing
evidence that his violations were intentional or inexcusable or that the need for his
confinement outweighs the policies favoring continued probation. We affirm.
FACTS
On June 18, 2012, appellant Will Scott pleaded guilty to felony first-degree
driving while impaired (DWI). At an August 8 sentencing hearing, the district court
stayed execution of a 48-month prison sentence and placed Scott on probation for three
years. The conditions of probation included that Scott abstain from alcohol use, complete
a chemical-dependency treatment program, cooperate with random chemical testing to
document abstinence, and follow all instructions of probation.
On October 17, the probation department filed a probation-violation report and
summons, alleging that Scott failed to meet with probation as directed, failed to submit to
random chemical testing, and failed to verify employment. At a November 2 hearing, the
district court ordered Scott to submit to a urine test and scheduled another court date.
After the hearing, Scott refused to submit to the court-ordered urine test and absconded.
The district court issued a bench warrant. Later, Scott appeared before the district court
in custody, waived his right to contest the allegations, and admitted to the probation
violations. The district court imposed an intermediate sanction of 20 days in jail and
continued probation.
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On August 26, 2013, the district court issued another order for Scott’s arrest and
detention based on a probation report alleging that Scott had failed to abstain from
alcohol use and failed to verify completion of a chemical-health assessment. Scott
admitted that he violated a condition of his probation by failing to complete a chemical-
health assessment. The district court ordered Scott to serve 365 days in the workhouse for
his admitted violation and ordered him to complete the Telesis treatment program while
in custody.
On March 14, 2014, the district court once again issued an order for Scott’s arrest
and detention, based on allegations that Scott had failed to maintain contact with
probation, failed to abstain from alcohol use, and failed to comply with random testing.
The district court held a contested probation-violation hearing, at which it heard
testimony from Hennepin County probation officer Kaitlyn Perfetti, Scott’s girlfriend
Analicia Martinez, and Scott.
Perfetti testified that after the August 26, 2013 probation violation, Scott
successfully completed Telesis at the workhouse but was sanctioned by the workhouse on
one occasion for returning from work release intoxicated. Perfetti testified that Scott was
released on furlough from the workhouse on January 28 and that probation had no contact
with him since that time. Perfetti explained that because “Scott ha[d] not been in contact
with probation, we have not been able to have him randomly tested.” On cross-
examination, Perfetti acknowledged that she did not supervise Scott, that Anoka County
probation supervised Scott, and that she based her testimony on notes prepared by Scott’s
Anoka County probation officer.
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Perfetti also referred to two police reports, dated February 22 and April 20, 2014.
She testified that the first report alleged that a child called the police to report that Scott
had assaulted Martinez and that Scott had been drinking alcohol. Perfetti testified that
the other report alleged that Scott “was banging on the door [and was] also intoxicated.”
After the prosecutor offered the first police report as an exhibit, Scott objected. The
district court sustained the objection.
Martinez testified that she and her three children lived with Scott and that she
called the police on April 20 because she was intoxicated and angry at Scott. She
acknowledged that she told the police that Scott had been drinking and was knocking at
the door. But she testified that she had lied to the police and that Scott had not been
drinking. Regarding the February 22 incident, Martinez acknowledged that her son
called the police but claimed that she had been the only one drinking. She testified that
she and Scott had a verbal dispute and that she threw a glass. Martinez further testified
that it had likely been over a year since she had seen Scott consume alcohol.
Scott testified that before he was released from the workhouse, he provided his
address and phone number to the Telesis counselors. Scott testified that the counselors
told him “they were having problems with the paperwork between Anoka and Hennepin”
and that nobody was sure which county was going to supervise him. Scott testified that
the Telesis counselors therefore told him that upon his release, he should continue his
aftercare and that somebody from probation would be in touch with him. Scott
acknowledged that he did not contact the probation department in either Anoka or
Hennepin after his release but explained that he “was under the impression that they
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would get in touch with [him] because that’s how it’s been done in the past, and [he] was
just busy with treatment.”
The district court ruled on the record as follows:
I do believe in this case that the state has proven under the
Austin factors, number one, that your violation was
intentional. That you failed to maintain contact with
probation. If this were the first time that that allegation had
been raised, I might feel differently, but it is the third time.
And after the two previous times it should have been clear to
you, and I think it was clear to you, that you needed to
maintain contact with probation. Your failure to do that leads
to my finding in the other respect that you have failed to
cooperate with providing testing.
So I find two violations. I find that they are—that they
were intentional, that they are inexcusable. Because of the—
there is a presumption in favor of continuing you on
probation. However, that presumption is overcome in this
case because of the history of violations and the repeated
nature of the same violations.
The district court revoked Scott’s probation and executed his 48-month stayed
sentence. Scott appeals.
DECISION
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). 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.” Id. at 249-50.
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The state has the burden of proving, by clear-and-convincing evidence, that a
probationer violated probation. Minn. R. Crim. P. 27.04, subd. 3; State v. Ornelas, 675
N.W.2d 74, 79 (Minn. 2004). Scott argues that “the evidence was not clear and
convincing that [his] failure to maintain contact was inexcusable.” Scott notes that the
district court “stated that due to [his] previous probation violations, it was clear that he
knew he had to maintain contact, and that the failure to do so was inexcusable.” Scott
contends that “under normal circumstances that would be sufficient to show that the
violation was inexcusable” but “in this case, [he] was misinformed by his workhouse
counselors that probation would be contacting him and that they would be forwarding his
contact information to probation.” Scott further contends that “the record established that
there was confusion regarding which agent he was to report to, whether probation would
be contacting him and whether probation was provided with his current contact
information.”
The weakness in Scott’s argument is that the only evidence supporting the
purported confusion about his probation supervision and misinformation provided by the
workhouse counselors was Scott’s own testimony. The district court’s ruling implies that
it did not credit his testimony. This court defers to that implicit credibility determination.
See State v. Spanyard, 358 N.W.2d 125, 127 (Minn. App. 1984) (stating that the
“[district] court did not believe [the probationer’s] explanations for failing to return . . .
property” and deferring to that determination “[g]iven that the function of the factfinder
is to weigh the credibility of witnesses”). The state presented evidence that Scott did not
contact probation after his release from the workhouse and that he previously violated his
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probation for failing to meet with probation. Because the district court did not credit
Scott’s explanation for his failure to contact probation, the record supports the district
court’s finding that Scott’s violation was inexcusable.
Scott also argues that the state failed to meet its burden of proving that the need
for confinement outweighs the policies favoring probation. In assessing this factor,
courts should consider whether “confinement is necessary to protect the public from
further criminal activity by the offender,” “the offender is in need of correctional
treatment which can most effectively be provided if he is confined,” or “it would unduly
depreciate the seriousness of the violation if probation were not revoked.” 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.” Id.
(quotation omitted).
Scott contends that the “record did not show that confinement was necessary to
protect the public from further criminal activity,” “[t]he evidence that was presented . . .
did not conclusively show that [he] did not have the ability to comply with the rules of
probation,” and “the state made no argument regarding whether reinstatement on
probation would unduly depreciate the seriousness of the violation.”
Contrary to Scott’s assertions, the record in this case shows that confinement was
necessary to protect the public, that Scott repeatedly failed to comply with the rules of
probation, and that his reinstatement on probation would unduly depreciate the
seriousness of the violation. Scott was placed on probation after his conviction of first-
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degree DWI, an offense based on alcohol use. In less than a year, Scott violated
probation by failing to meet with probation and by failing to submit to chemical testing.
Less than a year later, Scott violated probation by failing to obtain a chemical-health
assessment. While at the workhouse for his second probation violation, Scott returned
from work release intoxicated. After his release from the workhouse, Scott once again
failed to maintain contact with probation and failed to submit to chemical testing. Given
the underlying offense, Scott’s continual refusal to maintain contact with probation and to
submit to chemical testing to document abstinence are serious violations that impact
public safety. See id. (stating that the district court’s finding on the third factor should be
based on “the original offense and the intervening conduct of the offender”); Stevens v.
Comm’r of Pub. Safety, 850 N.W.2d 717, 727 (Minn. App. 2014) (“For decades, the
harms caused by drunken driving have been a matter of serious concern.”); Minn. Sent.
Guidelines 3.B (2012) (stating that when considering whether to revoke probation, “[l]ess
judicial tolerance is urged for offenders who were convicted of a more severe offense”).
In conclusion, the district court’s decision to revoke Scott’s probation was well
within its broad discretion.
Affirmed.
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