State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1699

State of Minnesota,
Respondent,

vs.

Bobby James Smitty,
Appellant.

Filed August 15, 2022
Affirmed
Smith, Tracy M., Judge

Steele County District Court
File Nos. 74-CR-18-1603, 74-CR-19-18

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

Daniel A. McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Connolly, Judge; and
Larkin, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant Bobby James Smitty argues that the district court abused its discretion
when it revoked his probation and executed his stayed sentences because the evidence did
not establish that the need for confinement outweighed the policies favoring probation.
Because the evidence supports the district court’s finding on this factor, we affirm.
2
FACTS
In late 2019, Smitty pleaded guilty to and was convicted of three offenses across
two different case files––third-degree drug sale, third-degree drug possession, and driving
while impaired. The district court imposed concurrent prison sentences of 33 months and
39 months but stayed both sentences for five years, subject to probationary conditions.
Conditions on both files included no alcohol or controlled substance use, random chemical
testing, successful completion of the Steele /Waseca County Drug Court Program, and
following the recommendations of a chemical-dependency evaluation.
On September 17, 2021, Steele County Community Corrections filed nearly
identical probation-violation reports in both case files. Both reports alleged that Smitty had
committed three violations: failure to successfully complete the drug court program after
he was terminated from drug court, failure to follow recommendations of his chemical-
dependency evaluation after he was unsuccessfully discharged from outpatient treatment,
and use of alcohol and THC. Both reports summarized 38 instances of Smitty’s
noncompliance with probation. These reports cited positive tests for THC,
methamphetamine, amphetamine, and alcohol; missed chemical testing; missed drug court
appearances; lack of communication with the drug court; lack of honest communication;
failure to attend treatment; failure to report to jail as ordered; and lack of communication
with the drug court in the month preceding Smitty’s termination from drug court on
September 15, 2021. Smitty spent several days in local jail during his probation.
At a probation-revocation hearing on September 20, 2021, Smitty admitted to the
three probation violations alleged in the reports and, through his counsel, requested that he
3
be continued on probation so he could pursue chemical- dependency and mental-health
treatment. The district court revoked Smitty’s probation and executed his stayed prison
sentences.
Smitty appeals.
DECISION
District courts have broad discretion in determining whether there is sufficient
evidence to revoke probation and execute a sentence 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).
The state must prove probation violations by clear and convincing evidence. Minn. R.
Crim. P. 27.04, subds. 2(1)(c)(b), 3(1). To revoke probation and execute a stayed sentence,
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.” Austin, 295 N.W.2d at 250. The
district court “must make specific findings on all three Austin factors before revoking
probation.” State v. Cottew, 746 N.W.2d 632, 636-37 (Minn. 2008).
Smitty argues that the district court abused its discretion when it revoked his
probation because the evidence did not establish the third Austin factor—that the need for
confinement outweighs the policies favoring probation.
When considering the third Austin factor, the district court should balance “the
probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and
the public safety.” Austin, 295 N.W.2d at 250. The district court’s decision to revoke cannot
be “a reflexive reaction to an accumulation of technical violations but requires a showing
4
that the offender’s behavior demonstrates that he or she cannot be counted on to avoid
antisocial activity.” Id. at 251 (quotations omitted). To help with this balancing, district
courts should consider alternatives to probation revocation and should not revoke probation
unless (1) confinement is necessary for public safety, (2) the offender needs “correctional
treatment which can most effectively be provided if he is confined,” or (3) “it would unduly
depreciate the seriousness of the violation if probation were not revoked.” Id. (quotation
omitted). “The purpose of probation is rehabilitation and revocation should be used only
as a last resort when treatment has failed.” Id. at 250.
Smitty contends that the third Austin factor was not satisfied because his violations
were the result of poor decision-making due to his addiction and that additional outpatient
treatment, coupled with mental-health treatment, could help him overcome his addiction.
He also notes that the district court could also order other consequences, including local
jail time and any other appropriate programming.
At the probation-violation hearing, the district court found as follows:
As I look back over the nature of the violations here what really
strikes me is that gap between your mental understanding and
the actions that you choose to take. So mental health is a hard
thing to recover and to hang on to, but it’s virtually impossible
to do that when people continue to use the controlled
substances. So it looks like you have really tried for way too
long to keep one foot in the using world and one foot in the
recovery world. And so it’s not surprising at all that the
intensity has just resulted in the situation that you are in now.
You have to be all in or all out to be successful. So you
certainly continue to be in need of treatment , that can most
effectively be offered to you now within the Department of
Corrections. To not send you given your history on these files
would unduly depreciate the seriousness of these violations.
It’s regrettable but it is just what the law requires at this point
in time.
5

The third Austin factor is satisfied by the district court’s findings. Smitty admitted
to three serious violations––failure to complete drug court, failure to follow chemical-
dependency treatment recommendations, and alcohol/THC use. T hese are not merely
“technical violations.” Id. at 251 (quotation omitted). The district court found that Smitty
would most effectively complete treatment in prison. Thus, the district court determined
that, based on Smitty’s violations, “treatment has failed,” and it used revocation as a “last
resort.” Id. at 250. The district court additionally found that it would unduly depreciate the
seriousness of Smitty’s violation not to revoke his probation.
These findings are supported by the record. Repeated instances of noncompliance
leading up to the revocation are detailed in probation-violation reports, sanctions orders
from drug court, and drug court hearings. Smitty’s noncompliance and lack of success in
treatment outside of confinement are reflected in positive chemical tests, missed chemical
tests, missed drug court appearances, lack of communication, failure to attend treatment,
failure to report to jail as ordered, and termination from the drug court on September 15,
2021. Moreover, the fact that Smitty had already spent several days in local jail as sanctions
for his noncompliance during his probation supports the district court’s decision not to
consider alternatives to revocation, particularly local jail time.
In sum, the district court did not abuse its discretion when it revoked Smitty’s
probation and executed his stayed sentences.
Affirmed.