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This opinion will be unpublished and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
A17-1185

State of Minnesota,
Respondent,

vs.

Jack Lawrence Schwab,
Appellant.

Filed December 4, 2017
Affirmed
Cleary, Chief Judge

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

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

Stephen N. Betcher, Goodhue County Attorney, Erin L. Kuester, Assistant County
Attorney, Red Wing, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, St. Paul, Minnesota (for
appellant)

Considered and decided by Peterson, Presiding Judge; Cleary, Chief Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant Jack Lawrence Schwab challenges the district court’s revocation of his
probation. We affirm.
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FACTS
In November of 2014, appe llant sexually assaulted his wife. In March of 2015, he
pleaded guilty to one co unt of fourth-degree cr iminal sexual conduct. The district court
stayed imposition of sentence, and placed him on probation for a period of ten years. The
conditions of his probation re quired appellant to particip ate in a chemical-dependency
evaluation and domestic-abuse ev aluation, refrain from possessing or using illegal drugs
or alcohol, submit to random chemical testing, provide a DNA sample, cooperate with his
case plan, maintain a separate residence from his wife, and remain law abiding.
In May of 2016, police responded to repor ts of an episode of domestic violence
involving appellant, his wife, and his children. At a meeting with a department of
corrections agent the next day, appellant admitted to using methamphetamine prior to the
incident and tested positive for methamphe tamine. At his May 31, 2016 probation-
violation hearing, appellant admitted the probation violation and the district court accepted
his admission. On June 2, 2016, the district court held a second violation hearing, revoked
the stay of imposition, and exec uted appellant’s sentence. He appealed the execution of
his sentence, arguing that the district court abused its discretion by revoking his probation.
This court reversed the execution of his sentence and remanded after determining the
district court failed to satisfy the Austin factors.
On remand, the district court made a seri es of more detailed findings. The district
court found that appellant admitted intentionally using methamphetamine, a violation of a
specific condition of his probation. The district court found that the use of
methamphetamine was “another indication of continued criminal activity while . . . on
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probation” and his drug use “s abotages the efforts” made by members of his family and
probation staff to address his serious mental health and chemical dependence issues. The
district court found that appellant was not amenable to probation and that his continued use
of methamphetamine made him a danger to hi mself, his family, and the general public.
Appellant objected to the execution of his se ntence and the district court reiterated its
findings: “[T]he violation has been identifie d . I t w a s t h e u s e o f m e t h . T h a t i t w a s
intentional. And that the need for conf inement outweighs the policies in favor of
probation.” This appeal follows.
D E C I S I O N
Appellant asserts that the district cour t abused its discretion in revoking his
probation and executing his sentence because th e evidence did not establish that the need
for confinement outweighed the policies favoring probation.
A district court has broad discretion in determining whether there is sufficient
evidence to revoke probation and will only be reversed if there is a clear abuse of discretion.
State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005) . Before revoking a probationary
sentence, a district court must: (1) speci fically identify the conditions or condition
violated; (2) find that the violation was inten tional or inexcusable; and (3) find that the
policies favoring probation no longer outweigh the need for confinement. State v. Austin,
295 N.W.2d 246, 250 (Minn. 1 980). When making the three Austin findings, “courts are
not charged with merely conforming to procedural requirements” and “should not assume
that they have satisfied Austin by reciting the three factors and offering general, non-
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specific reasons for revocation.” Modtland, 695 N.W.2d at 608. “[R]ather, courts must
seek to convey their substantive reasons for revocation and the evidence relied upon.” Id.
Appellant challenges the district court’s findings on the third Austin factor. When
making a finding on the third Austin factor, district courts “should refer” to three additional
considerations: (1) whether confinement is necessary to protect the public from further
criminal activity by th e offender; (2) whether the offende r is in need of correctional
treatment which can most effectively be provided if he is confined; or (3) whether it would
unduly depreciate the seriousness of the violation if probation was not revoked. Modtland,
695 N.W.2d at 607. Here, the district co urt found that appellant’s continued use of
methamphetamine was evidence of continued criminal activity and made him a danger to
himself, his family, and the general public. These findings are supported by the record and
demonstrate that the need for confinement outweighed the policies favoring probation
because confinement was necessary to protect the public from continued criminal activity.
Appellant contends that there was no evidence presented that he used
methamphetamine when he committed the Nove mber 2014 sexual a ssault and therefore
there is no link between the probation violation and a risk to public safety. But there is
ample evidence in the record documenting appellant’s history of domestic violence and use
of methamphetamine. The probation violation itself presents the most recent link between
his drug use and domestic vi olence: appellant used methamphetamine, became abusive
toward his family, and the police were called to intervene. The district court concluded
that appellant’s family were victims of his repeated abuse and that his “abuse is typically
associated with [the] use of methamphetamine.” The district court found that he could not
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control his chemical use and continued to pose a risk to his family, himself, and the public.
These findings are supported by appellant’s past history of domestic violence and use of
methamphetamine and the conduct underlying the probation violation.
Appellant argues that the district court fa iled to consider his mental health and
chemical dependence treatment needs. Appe llant has a documented history of substance
abuse and mental health issues. The district court acknowledged appellant’s mental health
and chemical dependence issues but concluded that his continued use of methamphetamine
sabotaged any effort made to address those i ssues and therefore he was not amenable to
probation. The district court emphasized that there was not a specific treatment plan or
program available for appellant to address his mental health and chemical dependence
issues and his past pattern of self-medicati on made him unamenable to probation. At the
original probation violation hearing, the district court discussed the lack of mental health
and chemical dependence resour ces available in th e county and stated that they were
essentially the same as the services offered by the commissioner of corrections. Given the
lack of treatment programs available to appe llant and his history of self-medication and
domestic violence, the district court adequately considered ap pellant’s mental health and
chemical dependence treatment needs as mitigating factors and concluded that the need for
confinement outweighed the policies favoring probation.
Finally, appellant asserts that the district court made a reflexive decision in revoking
his probation after his first violation involving the one-time use of methamphetamine. But
there is no requirement that a district court allow an offender to violate the terms of his
probation multiple times before executing his sentence. And the district court had broad
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discretion in determining whether there was su fficient evidence to revoke probation and
will not be reversed absent a “cle ar abuse of that discretion.” Modtland, 695 N.W.2d at
605 (quotation omitted). The district court reviewed appellant’s lengthy history and current
pattern of self-medication, drug abuse, and domestic violence and determined that the need
for confinement outweighed the policies in favor of probation. The district court did not
abuse its discretion in revoking appellant’s probation and executing his sentence.
Affirmed.