State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1124

State of Minnesota,
Respondent,

vs.

Davante Atkins,
Appellant.

Filed March 2, 2020
Affirmed
Florey, Judge

Olmsted County District Court
File Nos. 55-CR-15-8932; 55-CR-16-1561

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief A ppellate Public Defender, John Donovan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Larkin, Judge; and Florey,
Judge.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant argues that the district court abused its discretion by revoking his
probation because the need for his confinement did not outweigh the policies favoring
continued probation. We affirm.
FACTS
In April 2019, appellant Davante Atkins came before the district court for a
probation-violation hearing. While Atkins was on probation for a number of offenses, only
two are relevant to the present appeal.
In December 2015, Atkins was stopped for suspicion of driving while impaired
(DWI). Watkins was initially charged with fourth -degree assault, obstructing legal
process, and fourth-degree DWI. The state dismissed the DWI charge before trial, and a
jury found Atkins guilty of fourth-degree assault and obstructing legal process. The district
court sentenced him to a stay of imposition with three years of probation.
In March 2016, Atkins was charged in a separate matter with one count of financial-
transaction card fraud for his unauthorized use of a stolen credit card at a number of stores
in Rochester. Atkins submitted a pe tition to plead guilty, and the district court sentenced
him to five years of probation.
On March 20, 2019, Atkins’s prob ation officer filed a probation-violation report
asserting that Atkins violated his probation by failing to contact his probation officer as
directed and by failing to complete chemical-dependency treatment. The probation officer
reported that Atkins refused to sign a behavio r contract and left the Minnesota Adult and

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Teen Challenge treatment program against staff advice on January 28, 2019. The probation
officer was then unable to contact him, in part because she did not know where he was
residing and did not have a consistent phone number for him. Even though it was his first
formal probation violation, the probation officer recommended the execution of a 17 -
month sentence because Atkins requested to execute his sentence during a mee ting with
his probation officer.
During his probation-violation hearings, Atkins admitted that he failed to complete
chemical-dependency treatment and failed to stay in contact with his probation officer, but
argued that his probation should not be revoked because the need for his confinement did
not outweigh the policies favoring probation. The district court revoked Atkins’s probation
and executed concurrent sentences of 19 months in prison for financial -transaction card
fraud and 17 months for fourth -degree assault, amongst the execution of o ther sentences
not implicated by the present appeal. This appeal followed.
D E C I S I O N
Atkins argues that the district court should not have revoked his probation and
executed his sentences because the need for his confinement did not outweigh the policies
favoring probation. When an offender violates a condition of probation, the district court
may continue probation, revoke probation and execute the stayed sentence, or order
intermediate sanctions. Minn. Stat. § 609.14, subd. 3 (2018). “The [distr ict] 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).

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In Austin, the supreme co urt stated that in order to revoke an offender’s probation
the district court must: “1) designate the specific . . . 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. Atkins asserts that the district court
abused its discretion regarding the third Austin factor.
When a revocation of probation is followed by a term of imprisonment, district
courts should consider whether “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.” Id. at 251. Atkins asserts that
these factors do not support the execution of his sentences because chemical-dependency
treatment was still available to him in the community, and he has demonstrated that he can
be accountable to probation.
In light of Atkins’s repeated failures to comply with the te rms of his probation, the
record supports the district court’s conclusion that corre ctional treatment could most
effectively be provided if Atkins were confined. Atkins admitted that he failed to complete
chemical-dependency treatment at Teen Challenge be cause he did not sign a behav ioral
contract. In addition, Atkins’s probation officer testified that Atkins did not complete a
treatment program at Zumbro Valley Mental Health Center due to an issue with his
insurance. The probation officer also testified that Atkins failed to complete a rule 25
assessment after leaving the Teen Challenge pr ogram. The probation officer summarized
her recommendation that Atkins was not amenable to treatment in the community because
he “has been given several opportunities to go to treatment, to work on cognitive skills in

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the office . . . Based on conversations with [his previous probation officer] prior to this
he’s been, again, handed lots of opportunities to show up and make[] changes and he has
not.”
Even though serv ices would be available to Atkins if he were placed back on
probation, the officer testified that she did not consider him amenable to treatment in the
community due to his lack of communication with probation. Finally, the probation officer
testified tha t Atkins had a subsequent assaul t conviction while on probation which she
could have violated him for , but she chose to continue trying to work with him instead.
The district court determined that due to Atkins’s failure to maintain communication with
his probation officer or complete treatment when offered, it “has no confidence that Mr.
Atkins would follow through with programming in the community” because “Mr. Atkins
has in all respects refused to be accountable.”
In Austin, the supreme court stated t hat “[t]he appellant has been offered treatment
but has failed to take advantage of the opportunity or to show a commitment to
rehabilitation so it was not unreasonable to conclude that treatment had failed.” 295
N.W.2d at 251. The same is true here. Ev en though the probation officer testified that
services remained available to Atkins in the community, neither the probation officer nor
the district court believed that Atkins would succeed now in light of his prior failures and
continuing violations. On this basis, the district court did not abuse its discretion by
determining that the third Austin factor—the need for confinement outweighs the policies
favoring probation—favored revocation.
Affirmed.