State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1371

State of Minnesota,
Respondent,

vs.

Jack Lawrence Schwab,
Appellant.

Filed March 6, 2017
Reversed and remanded
Schellhas, Judge

Goodhue County District Court
File No. 25-CR-14-2777

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Stephen Betcher, Goodhue County Attorney, Red Wing, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Kirk, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges his probation revocatio n, arguing that the district court abused
its discretion by finding that he violated conditions of his probation without his admission

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or clear and convincing evidence and without satisfying the Austin factors. We reverse and
remand.
FACTS
During Thanksgiving weekend in 2014, Schwab sexually assaulted his wife.
Schwab pleaded guilty to fourth-degree crim inal sexual conduct. On May 1, 2015, based
on a plea agreement, the district court stayed imposition of sentence and placed Schwab on
probation for ten years with a number of probation conditions that included no use or
possession of alcohol or illegal drugs. The court told Schwab that he “may have contact”
with his wife but “may not liv e at the same residence” as his wife until his therapist and
probation officer agreed that it was “a safe thing to do.”
A probation violation report dated May 26, 2016, alleges that Schwab violated the
following terms of his probation: (1) “no use of drugs or alcohol”; (2) “cooperate with case
management through Goodhue Co unty Health and Human Serv ices” and “not live at the
same address as the victim without approval from therapist”; and (3) register as a predatory
offender. At Schwab’s May 31 probation-revocation admit-deny hearing, the district court
did not read the alleged probation violations on the record, but defe nse counsel told the
court that Schwab wanted to “admit the violation,” and Schw ab said, “I did it. I’m not
going to deny it. I goofed up.”
The prosecutor then explained that the state was seeking an executed sentence, and
the district court announced that it would hold a separate disposition hearing and engaged
in the following colloquy with Schwab:

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THE COURT: . . . First of all, a question for you is, do you
admit or deny that you have violated the terms of your
probation?
THE DEFENDANT: Yes, I did.
THE COURT: You admit it?
THE DEFENDANT: Yes, I did.

Defense counsel then questioned Schwab about his waiver of rights and asked him, “[d]o
you want to admit the violation?” Schwab sa id yes. Defense counsel then explained to
Schwab that the state was re questing an executed prison sentence, which meant that he
“would go to prison for whatever time period the crime calls for” and that “the consequence
here could be very hars h or maybe we can get an alterna tive. I can’t guarantee it either
way.” Schwab said that he understood and agreed “to go ahead and admit.”
Specifically, Schwab admitted that he violated a condition of his probation—no use
of drugs or alcohol—by using methamphetamine. He added that he did so “[t]o cure [his]
pain that [he had] been in” and said, “that’s what [he] wa s going to talk to everybody
about,” acknowledging that he knew that “it’s not a valid excuse.” The prosecutor also
asked Schwab whether, “as a co ndition of probation, [Schwab was] also not supposed to
be at the house that [he] used to live at,” and Schwab said:
No. She said I could be out there; I just couldn’t sleep there.
That was my understanding, and . . . I talked to . . . my PO. I
said, ‘I switched my vehicles, I grabbed my lunch and stuff out
there. Do I have to register out there?’ And she said, ‘no.’ She
said I could be out there; I just couldn’t sleep there. So I am
kind of a little lost on this part.

The district court accepted Schwab’s “admission of the probation violation and waiver of
a hearing” and scheduled a disposition hearing for June 2, 2016.

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At the disposition hearing, the district cour t found “that the violations in this case
have been clearly identified, that the violations are inten tional or at least without any
reasonable excuse, . . . that the need for co nfinement does outweigh any interest that Mr.
Schwab has in his personal liberty and in probation,” and that the “the need for confinement
in this case does outweigh the strong public policies in favor of probation.” The court
revoked the stay of imposition and sentenced Schwab to 48 months’ imprisonment. This
appeal follows.1
D E C I S I O N
Schwab argues that the district court abused its discretion by revoking his probation
without clear and convincing evidence to support its finding that he violated conditions of
his probation and without satisfying the Austin factors. Prior to revoking probation, a
district court must (1) “designate the specific condition or co nditions 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). Failure to address all three Austin factors requires a reversal and remand,
even if the evidence was sufficient to support the revocation. State v. Modtland , 695
N.W.2d 602, 606−08 (Minn. 2005).
“A district court has broad discretion in de termining if there is sufficient evidence
to revoke probation and should be reversed only if there is a clear abuse of that discretion.”

1 The state has not filed a brief in this appe al, and we therefore determine the case on the
merits. See Minn. R. Civ. App. P. 142.03.

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Id. at 605 (quotation omitted). But whether a district court has made the findings required
under Austin presents a question of law, which an appellate court reviews de novo. Id.
In this case, the record reflects that, at the probation-revocation admit-deny hearing,
defense counsel informed Schwab of his right to a contested probation-revocation hearing,
and that Schwab waived the right to a cont ested hearing. Schwab admitted that he had
violated one condition of probation—no use of drugs or alcohol. And the district court
judge accepted Schwab’s admission, saying, “I’ll accept your admission of the probation
violation and waiver of a hearing.” But the record does not reflect that Schwab admitted to
violating any ot her conditions of probation. In fact , when the prosecu tor asked Schwab,
“were you also not supposed to be at the house that you used to live at,” Schwab said no
and explained that his probation officer told him that he could be at the house but could not
sleep there, so it was his understanding that he did not have to register at that address. Apart
from that comment, no one mentioned the rema ining alleged probation violation—failure
to register as a predatory offender—at either the probation-revocation admit-deny hearing
or disposition hearing.
At the disposition hearing, without specif ying any probation vi olations, the court
stated:
I do find that the violations in this case have been clearly
identified, that the violations are intentional or at least without
reasonable excuse, and that the need for confinement does
outweigh any interest that Mr . Schwab has in his personal
liberty and in probation.

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The court then revoked Schwab’s probatio n and imposed an executed 48-month prison
sentence. At Schwab’s request, the court ther eafter allowed Schwab to address the court
but did not alter its decision to revoke Schwab’s probation or make any additional findings.
“[C]ourts must seek to co nvey their substantive reasons for revocation and the
evidence relied upon.” Modtland, 695 N.W.2d at 608. Although a transcript may be
sufficient to permit review, id. at 608 n.4, the transcripts in this case do not reveal the
evidence upon which the district court reli ed or its substantive reasons for revoking
Schwab’s probation. We therefore conclude that the court abused its discretion by revoking
Schwab’s probation w ithout satisfying the Austin factors. Accordingly, we reverse and
remand for further proceedings.
Reversed and remanded.