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This opinion will be unpublished and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
A17-0586

State of Minnesota,
Respondent,

vs.

Jose Fernando Vargas,
Appellant.

Filed November 20, 2017
Affirmed
Larkin, Judge

Lincoln County District Court
File No. 41-CR-15-91

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

Glen A. Petersen, Lincoln County Attorney, Tyler, Minnesota (for respondent)

Robert H. Ambrose, Matthew B. Trevor, Ambrose Law Firm, PLLC, Minneapolis,
Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Hooten, Judge; and Smith,
Tracy M., Judge.

2
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges the district court’s revocation of his probation. We affirm.
FACTS
Appellant Jose Fernando Vargas was convicted of one count of third -degree
criminal sexual conduct and one count of fourth-degree criminal sexual conduct following
a bench trial. The district court sentenced Vargas to a stayed p rison term of 57 months,
placed him on probation for 15 years, and ordered him to serve 365 days in the county jail
as a condition of probation. This sentence was a downward dispositional departure based
on Vargas’s amenability to probation. Vargas had a psychosexual assessment prior to
sentencing, which recommended that he have no unsupervised contact with minor females.
The district court made this no-contact provision a condition of Vargas’s probation.
During his first five days in the county jail, Vargas, who was 19, called his
girlfriend, who was 16, a total of 13 times. The phone calls began the same day that he
was sentenced and ordered to have no contact with minor females. Vargas’s probation
officer filed a probation report based on the phone calls, and Vargas admitted to the
violation. The district court revoked Vargas’s probation, finding that Vargas had
knowingly violated probation, taken steps to avoid detection, and initially lied about the
violation when confronted by his probation officer. The district court found the violation
was “intentional or inexcusable” and that it would unduly depreciate the seriousness of the
violation for Vargas to continue on probation . Additionally, the distri ct court found that
3
Vargas’s “willful conduct in violating the terms of his probation within hours of sentencing
demonstrates a contempt and disregard for the court-ordered conditions of his probation.”
Vargas appeals.
D E C I S I O N
The trial court has broad discretion in determining whether the facts warrant
revocation of probation, and an appellate court will not reverse unless there is a clear abuse
of discretion. State v. Austin , 295 N.W.2d 246, 249 -50 (Minn. 1980). Before a distri ct
court may revoke a defendant’s probation, it “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. at 250.
Whether a district court has made the required Austin findings presents a question of law,
which an appellate court reviews de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn.
2005).
In assessing the third Austin factor, the district court determines 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 (quotation omitted). The
decision to revoke probation “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).
4
Vargas focuses on the third Austin factor, arguing that “the evidence was
insufficient” and that the district court did not make adequate findings . The district court
made the following detailed findings explaining why continuing probation would unduly
depreciate the seriousness of the violation: (1) Vargas violated probation by having contact
with a minor female the same day that he was sentenced, (2) “[Vargas] continued to violate
this probationary condition on 12 additional occasions in a five -day period until he was
confronted by his probation officer [and] [t]here is no reason to believe that [Vargas ’s]
conduct would have stopped but for the intervention of the probation agent,” (3) “[Vargas]
took affirmative steps to hide the fact that he was contacting a minor female,” (4) “[Vargas]
initially lied to his probation officer about his cont act with the minor female,”
(5) “[r]efraining from having contact with minor females was a key component to
[Vargas’s] probation supervision,” and (6) “[Vargas’s] willful conduct in violating the
terms of his probation within hours of sentencing demonstrates a contempt and disregard
for the C ourt-ordered conditions of his probation.” These findings support the court’s
determination that it would unduly depreciate the seriousness of the violation if probation
were not revoked, thereby satisfying the third Austin factor.
Vargas argues that his dispositional departure “should not have been used as
evidence against him.” The record does not support Vargas’s suggestion that the district
court based its decision to revoke on the dispositional departure. Although the distric t
court’s revocation order mentions the downward departure, it states that “[t]he Court is not
executing sentence because there was a departure.”
5
Vargas argues that the sentencing guidelines indicate that his violation does not
justify revocation. He arg ues that the district court should have imposed an alternat ive
sanction because he did not commit a new criminal offense, he had not started sex-offender
treatment, and other appropriate sanctions were available.
The sentencing guidelines state that revo cation is justified when the offender is
convicted of a new felony or when the offender continues to violate probation despite the
court’s use of expanded and more onerous conditions. Minn. Sent. Guidelines 3.B (2015).
Although the guidelines urge courts to impose more restrictive conditions before revoking
probation, we cannot overlook the fact that the district court revoked V argas’s probation
because he immediately and repeatedly disregarded a “key component” of his probationary
conditions. And the district court had already imposed a significantly restrictive condition
of probation: 365 days in the county jail, which is the longest county jail sentence a district
court can order as a condition of probation. Minn. Stat. § 609.135, subd. 4 (2015).
Vargas argues that because the violation was minor and did not involve new charges
or convictions and the risk to public safety is weak, execution of his sentence was an abuse
of discretion. Admittedly, this may have been a close decision, but the distric t 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.” Austin, 295 N.W.2d at
249-50. The law does not prevent a district court from revoki ng probation based on an
offender’s first violation, in the absence of a new conviction, or when additional treatment
options and intermediate sanc tions are available. Minnesota’ s district court judges are
entrusted to make difficult decisio ns that balanc e the probationer’ s freedom and public
6
safety. We will not second guess those decisions if the district court makes the necessary
Austin findings, the record supports the f indings, and the district court’ s reasoning is
soundly explained. In this case, th ese criteria are satisfied, and the district court did not
clearly abuse its discretion by revoking Vargas’s probation.
Affirmed.