This opinion will be unpublished and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
A14-1548
State of Minnesota,
Respondent,
vs.
Steven E. Johnson,
Appellant.
Filed March 16, 2015
Affirmed
Larkin, Judge
Blue Earth County District Court
File No. 07-CR-12-3727
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Ross E. Arneson, Blue Earth County Attorney, Mankato, Minnesota (for respondent)
Allen P. Eskens, Eskens Peterson Law Firm, Chtd., Mankato, Minnesota (for appellant)
Considered and decided by Johnson, Presiding Judge; Halbrooks, 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UNPUBLISHED OPINION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 district court abused its discretion by revoking
probation without first requiring the state to pursue appellant’s civil commitment or
recommend alternative treatment options. We affirm.
FACTS
Appellant Steven E. Johnson pleaded guilty to first-degree driving while impaired
(DWI) in February 2013. The district court stayed execution of Johnson’s sentence and
placed him on probation.
In March 2014, the probation department filed a violation report alleging several
probation violations. At the initial hearing on the alleged probation violations, Johnson’s
attorney requested a continuance so Johnson could complete a psychological evaluation
with Dr. Theodore Surdy. Upon completion of the evaluation, Dr. Surdy diagnosed
Johnson with schizoaffective disorder, bipolar II, cognitive disorder, alcohol dependence,
nicotine dependence, and a personality disorder. Dr. Surdy concluded that Johnson
“manifests a serious and persistent mental illness and is at risk for being a danger to
himself and others.” Noting that Johnson failed to take advantage of outpatient services
to manage his mental health, alcohol consumption, and aggression, Dr. Surdy opined that
Johnson required a “more supervised setting” where he could “be monitored over some
time to determine what psychotropic medications are appropriate, receive chemical
dependency treatment, and receive psychotherapy.”
In July, Johnson pleaded guilty to disorderly conduct and admitted that he violated
a condition of his probation that required him to remain law abiding. After a contested
hearing, the district court found that Johnson also violated probation by consuming
alcohol, failing to provide a urine sample, failing to cooperate with mental-health
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services, failing to keep probation informed of his employment status, and failing to
cooperate and be truthful with his probation officer. The district court scheduled a
disposition hearing, stating that it needed to “analyze this situation.” The district court
ordered the prosecutor and Johnson’s probation officer to provide Blue Earth County
Human Services with Dr. Surdy’s report. The district court stated:
I just want to clearly identify for the record the report of
Dr. Surdy that needs to be reviewed by the county; and I want
a specific response from the county as to . . . their response to
Dr. Surdy’s report and a specific reason why they will not
follow it, because it appears to me that Dr. Surdy’s report is
clearly . . . calling for inpatient mental health treatment. And
in the alternative I want the county to propose to me . . .
alternative treatment to satisfy [or] to comply with
Dr. Surdy’s report.
At the disposition hearing, the parties acknowledged receipt of a commitment-
screening report from the county. The report concluded that there was not enough
evidence to support Johnson’s civil commitment as mentally ill and chemically
dependent. Johnson’s probation officer recommended execution of Johnson’s prison
sentence. The prosecutor also recommended execution of the sentence stating, “the
options are limited here.” Neither Johnson’s probation officer nor the prosecutor
proposed a treatment option as an alternative to the recommended prison sentence.
Johnson’s attorney recommended Johnson’s release and reinstatement on
probation or an order requiring Johnson to find an inpatient treatment program consistent
with Dr. Surdy’s recommendations. But Johnson’s attorney did not recommend a
specific treatment program.
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The parties argued, and the district court analyzed, the revocation factors under
State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980), on the record. The district court
found that Johnson’s violations were intentional. The district court judge noted that he
was familiar with Johnson from drug court and stated, “I don’t think there is any
question, at this point, that confinement is necessary to protect the public from further
criminal activity and I am . . . hopeful that [Johnson] can get some treatment in prison.”
In response, Johnson’s attorney suggested a third dispositional alternative: hold
Johnson in custody until he committed himself. The district court rejected that option,
noting that defense counsel knew that Johnson would never commit himself because he
opposed civil commitment. The district court revoked Johnson’s probation and executed
his 42-month sentence. This appeal follows.
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.” Id. 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.
Johnson does not challenge the district court’s analysis or findings under Austin.
Instead, Johnson argues that the county violated a district court order “by not providing
the court with an explanation as to why the county was refusing to petition for [his] civil
mental health commitment.” Johnson interprets the July district court request for a
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“specific response from the county” to “Dr. Surdy’s report and a specific reason why they
will not follow it” as an order “to review Dr. Surdy’s report for a possible civil
commitment.” Johnson asserts that the county “did not even attempt to comply with [the
district court’s] directive” because the commitment-screening report that it prepared does
not indicate that the screener took Dr. Surdy’s report into consideration and does not
“specify why Dr. Surdy’s recommendations were not being considered.”
Johnson’s argument is unavailing because the record shows that the district court
was satisfied with the county’s compliance with its request. After Johnson’s probation
officer assured the court that the civil-commitment screener had received a copy of
Dr. Surdy’s report, the district court stated that “the county has looked at everything and
. . . the county believes that [Johnson] . . . doesn’t meet the qualifications to be committed
and I am not exactly sure what else [is] to be done.”
Johnson also argues that the district court abused its discretion by failing to
consider mental-health treatment alternatives to prison and by not requiring the county to
identify such alternatives for the court’s consideration. Johnson refers to the district
court’s request that the county propose “alternative treatment . . . to comply with
Dr. Surdy’s report” if the county disagreed with Dr. Surdy’s recommendations. Johnson
asserts that the county failed to comply with this “court order” by not providing specific
treatment options at the disposition hearing and that the district court “abused its
discretion by . . . not requiring the county to comply with the court’s order to find
[treatment] alternatives.”
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Once again, the record indicates that the district court was satisfied with the
county’s response to its request for treatment recommendations, which was that the
county had reviewed the case and did not have a treatment option to recommend. We
note that Johnson did not recommend a specific treatment program for the district court to
consider as an alternative to prison. Moreover, the district court considered and rejected
the three dispositional alternatives that Johnson’s attorney did suggest.
Given the district court’s supported findings and analysis under Austin, and its
consideration of the probationary alternatives that were presented, we discern no abuse of
discretion in the decision to revoke Johnson’s probation.
Affirmed.
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