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This opinion will be unpublished and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
A17-1508

State of Minnesota,
Respondent,

vs.

Thomas Brian Sobtzak,
Appellant.

Filed July 9, 2018
Affirmed
Reyes, Judge

Itasca County District Court
File No. 31-CR-14-743

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

John J. Muhar, Itasca County Attorney, Todd Webb, Assistant County Attorney, Grand
Rapids, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Wo rke, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
On appeal from the district court’s revocation of stay of execution for violating the
terms of his probation, appellant argues that the district court abused its discretion by

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reacting reflexively to the violations. We affirm.
FACTS
On December 5, 2011, appellant Thomas Brian Sobtzak was convicted of domestic
assault against A.A.S., the moth er of two of his children. In September 2013, appellant
was convicted in Itasca County for stalking A.A.S., and the district court entered a
domestic-abuse no-contact order (DANCO) prohibiting appellant from contacting her.
Between October 2013 and February 2014 , A.A.S. received numerous text
messages from appellant, and on one occasion, appellant went to A.A.S.’s residence,
physically intimidated her, and yelled profanities at her. As a result, Itasca County charged
appellant with 29 counts of felony DANCO violation, Minn. Stat. § 629.75, subd. 2(d)(1)
(Supp. 2013). Appellant plea ded guilty to each of the 29 counts pursuant to a plea
agreement with the state. Th e district court sentenced appellant to an aggregate sentence
of 72 months and four days and stayed ex ecution of the sentences pending appellant’s
completion of ten years of supervised probation.
Appellant’s first probation violation in Itasca County arose from his admitted use of
controlled substances. The dist rict court found that appellant violated this term of his
probation, reinstated his probation, and ordered him to successfully complete alcohol and
drug treatment.
Appellant’s second probation violation in Itasca Coun ty arose from an incident in
neighboring Crow Wing County. Appellant was charged with the domestic abuse of K.O.,
the mother of his third child. K.O. then obtained an order for protection (OFP) against
appellant. After a jury acquitted appellant of the domestic-abuse charge, Crow Wing

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County charged appellant with 23 counts of violating K.O.’s OF P for contacting K.O.
numerous times while he was in jail awaiting trial for the domestic abuse of her. Appellant
pleaded guilty to each of the 23 counts in Crow Wing Coun ty District Court, which
triggered his second probation violation in Itasca County for violating the term of his Itasca
County probation that he rema in law abiding. Appellant admitted to violating this
condition of his probation, and the Itasca County District Court agreed and again reinstated
his probation.
Appellant’s third probation violation in Itasca County resulted from his further
violation of the conditions of his probation. During th e resulting probation-revocation
hearing, the district court heard testimony from appellant and his Crow Wing County and
Itasca County probation agents and determined that appellant had four probation violations
and executed his sentence.1 This appeal follows.
D E C I S I O N
Appellant argues that the district court abused its discretion when it revoked his
probation and executed his sentence because it failed to offer substantive reasons for the
revocation in its findings for the sec ond and third factors, as required by State v. Austin,
295 N.W.2d 246 (Minn. 1980). We disagree.
A district court has broad discretion to determine whether the state produced
sufficient evidence to revoke probation, and we will not reverse its decision absent an abuse

1 This court recently affirmed the district court’s revocation of appellant’s probation in
Crow Wing County. State v. Sobtzak, No. A17-1655, 2018 WL 1787972 (Minn. App. Apr.
16, 2018). The Crow Wing County violation was based in part on his Itasca County
probation violation that is the subject of this appeal. See id. at *1.

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of that discretion. Austin, 295 N.W.2d at 249–50. The decisi on to revoke probation
“cannot be a reflexive reaction to an accumulation of techni cal violations but requires a
showing that the offender’s behavior demonstrates that he or she cannot be counted on to
avoid antisocial activity.” Id. at 251 (quotations omitted). A district court must make three
requisite Austin findings before revoking probation: (1) the probationer violated a
designated condition of probation; (2) the viol ation was intentional or inexcusable; and
(3) the need for confinement outweig hs the policies favoring probation. Id. at 250.
Whether the district court made sufficient Austin findings presents a question of law that
we review de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).
“When determining if revocation is appropriate, courts must balance the
probationer’s interest in freedom and the stat e’s interest in insuring his rehabilitation and
the public safety, and base their decisions on sound judgment and not just their will.” State
v. Rottelo , 798 N.W.2d 92, 95 (Minn. A pp. 2011) (quotation omitted), review denied
(Minn. July 19, 2011). Specific to the third Austin factor, the district court should consider
three sub-factors to assess if:
(i) confinement is necessary to protect the public from
further criminal activity by the offender; or
(ii) the offender is in need of correctional treatment which
can most effectively be provided if he is confined; or
(iii) it would unduly depreciat e the seriousness of the
violation if probation were not revoked.

Modtland, 695 N.W.2d at 607. The district court need only find the existence of one sub-
factor in fulfilling the third Austin factor. See Austin, 295 N.W.2d at 251.

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I. The district court did not abuse its disc retion in determining that appellant
intentionally violated the terms of his probation.

Appellant first argues that the district c ourt made insufficient findings to support the
requirements of the second Austin factor. In making its findings, the district court cited
appellant’s testimony at the hearing indicati ng that he was aware of the conditions of
probation and concluded that he intentionally violated four probation conditions; that he:
(1) maintain full time employment or schooli ng or 20 hours of community service per
week; (2) complete the domes tic-violence-intervention-program inventory; (3) abstain
from the use of mood-altering chemicals; and (4) provide his probation agent notice of
residence changes. We address each in turn.
A. Failure to maintain full-time employment or schooling or 20 hours of
community service per week.

Appellant testified that he was employed in constructi on sales until October 2017,
but “decided to seek work elsewhere” beca use his employer was not scheduling him to
work the number of hours he desired. Appellant turned in several applications elsewhere,
but did not hear anything after that. He then stated:
At that point it was right around December, that’s when we
were starting to come across in Crow Wing with a plea deal
and all that so I was kind of th inking well, there’s going to be
some jail time. I don’t know if I want to jump in to a full-time
job.

Appellant also admitted that he was not in school and di d not complete 20 hours of
community service each week. The district court did not abuse its discretion in concluding
that appellant violated this condition of probation because appellant’s testimony expressed
his intent to violate and knowledge of this condition of his probation.

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B. Failure to complete a domestic-v iolence-intervention-program
inventory within fifteen days of sentencing.

The district court found that appellant vi olated his probation because he failed to
complete a domestic-abuse-intervention-progra m inventory within fifteen days of his
sentencing. But the district court did not include this as a probation condition.2 It instead
required appellant to “Complete [the] Domes tic Abuse Batterer’s In tervention Program”
and does not specify a time limi t. Therefore, the district court abused its discretion by
relying on this probation condition. See id. at 81 (district court abused its discretion when
it revoked defendant’s probation based on a condition of probation that had not actually
been imposed). However, appellant violated three other conditions of probation for which
the district court permissibly remanded him to custody.
C. Failure to abstain from the use of mood-altering chemicals.
On March 1, 2017, Crow Wing County filed a probation-violation report for failure
to comply with various conditions of his probation there. After Crow Wing County issued
a warrant for his arrest, police arrested appellant in a motel room with hypodermic needles
in his possession. Upon arrival at the Crow Wing County jail, appellant took a urinalysis
and tested positive for opiates and methadone. Appellant admitted to all of this during the
third Itasca County probation -revocation hearing now before us on appeal. Appellant

2 Neither appellant nor the state argue that this was not a condition of appellant’s probation
imposed by the district court, but it is clear that it was not . Although we generally are
reluctant to address issues that have not been raised in the lower courts, we will review
such issues on the merits in the interests of justice. State v. Ornelas, 675 N.W.2d 74, 79
(Minn. 2004) (although neither party briefed issue, interests of justice served in analyzing
identical issue as present case).

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testified that he was prescribed methadone but admitted that he was not prescribed any of
the other opiates for which he tested positive. As a result, th e district court did not abuse
its discretion in relying on a ppellant’s admissions in conc luding that he intentionally
violated this condition of probation.
D. Failure to provide his probation agent with notice of residence changes.
Appellant completed drug and alcohol treatment after the district court modified his
probation conditions to include such treatment. He moved into a halfway house as part of
his aftercare treatment but was subsequently discharged. He then resided with his
significant other (neither A.A.S. nor K.O.), then with his brother for ten days, and then at
a Motel 6 for thirteen days after that. Police discovered hypodermic needles in appellant’s
possession when they arrested him at the Motel 6, and one of his probation agents indicated
during her probation-revocation testimony that he had been struggling with his addiction.
During the hearing, appellant admitted that he knew that hi s probation required him to
notify his probation agent of residence changes and that he had failed to do so when he
resided at the Motel 6. Once again, appella nt’s testimony supports the district court’s
determination that appellant intentionally violated this condition of his probation.
We conclude that the district court did no t abuse its discretion in determining that
appellant intentionally violated three of the conditions of his probation because he admitted
to each intentional violation during his own testimony.

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II. The district court did not abuse its discretion in determining that the need for
appellant’s confinement outweighed the policies favoring probation.

Appellant also argues that the district c ourt’s findings were a reflexive reaction to
his probation violations and that the district court failed to cite specific evidence detailing
the reasons why the need for his confinement outweighs the policies favoring probation.
We disagree.
In making its Austin findings, the district court stated that the need for appellant’s
confinement outweighed the policies favoring pr obation because he is not amenable to
probation and his confinement is necessary to protect the public from further criminal
activity. These findings are c onsistent with the evidence in the record. During his
probation-revocation-hearing testimony, appellant detailed his lengthy criminal history and
testified that he has completed three chemic al-dependency treatments but struggles to
remain clean and sober.
A district court does not abuse its disc retion in revoking an offender’s probation
based upon his “lengthy history of criminal activity and chronic pr obation and treatment
failures.” State v. Osborne, 732 N.W.2d 249, 256 (Minn. 2007). As such, the district court
did not abuse its discretion in determining that the need for appellant’s confinement

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outweighed the policies favoring probation. It s findings were not a reflexive reaction to
appellant’s violations and were instead a reasonable asse ssment that appellant cannot be
counted on to remain law abiding.3
Affirmed.

3 We note that the district court also considered Modtland’s third sub-factor and determined
that it would unduly depreciate the seriousne ss of the probation violations if appellant’s
probation was not revoked. And after a careful review of the record, we agree.