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This opinion will be unpublished and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
A17-1555

State of Minnesota,
Respondent,

vs.

Andrew Jon Selzler,
Appellant.

Filed June 11, 2018
Reversed
Reyes, Judge

Beltrami County District Court
File No. 04-CR-11-889

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

David L. Hanson, Beltrami County Attorney, Bemidji, Minnesota (for respondent)

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

Considered and decided by Jesson, Pres iding Judge; Connolly, 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 order revoking probation and executing sentence,
appellant argues that the district court: (1) abused its discretion by revoking his probation
without making findings pursuant to State v. Austin , 295 N.W.2d 246 (Minn. 1980);

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(2) extended his probationary period past the five-year statutory maximum; and (3) abused
its discretion in sentencing him to a double-upward durational departure on his third count
of possession of child pornography. We reverse.
FACTS
On March 23, 2011, respondent State of Minnesota charged appellant Andrew Jon
Selzler with one count of solicitation of a child to engage in sexual conduct in violation of
Minn. Stat. § 609.352, subd. 2a(2) (2010 ), and ten counts of possession of child
pornography in violation of Minn. Stat. § 617.247, subd. 4(a) (2010). Appellant pleaded
guilty to one count of solicitation of a ch ild and three counts of possession of child
pornography.
On August 8, 2011, the district court imposed concurrent sentences on each count,
of which the longest was for 60 months for possession of child pornography. The district
court stayed execution of th e sentences and placed appellant on probation for four years
for solicitation of a child and five years for each of the three counts of possession of child
pornography, also to run concurrently. One of the conditions of his probation was that he
“[e]nter into and successfully complete outpa tient sex offender treatment as arranged by
agent.” Appellant completed inpatient sex-offender treatment and entered outpatient sex-
offender treatment thereafter. It is undisputed that appellant was a model probationer.
On August 2, 2016, appellant’s probation officer filed a probation-violation report
because appellant had not yet successfully completed the aftercare portion of his sex-
offender treatment and was not likely to comple te it within the proba tionary period. The

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next day, the district court revoked appellant ’s stay of execution. Appellant’s probation
expired on August 7, 2016.
The district court held an order-to-sho w-cause hearing on September 19, 2016.
During the hearing, the state indicated that appellant had four months remaining in his sex-
offender-treatment program. The parties agreed that the district court had no authority to
extend appellant’s probation because no extension had been requested at least 60 days prior
to expiration of appellant’s probation under Minn. Stat. § 609.135, subd. 1c (2016). The
district court continued the matter and scheduled a probation-revocation hearing for
January 31, 2017, to permit ap pellant to successfully comple te the outpatient treatment
program.
By January 31, 2017, appellant had succe ssfully completed all requirements of
treatment except the polygraph test. The district court continued the matter to permit
appellant to complete the polygraph test.
Appellant completed and passed the polyg raph test on February 20, 2017, but
admitted during the test that he had watche d adult pornography on a work computer in
November 2016. In lieu of being unsuccessfully discharged from outpatient sex-offender
treatment, appellant’s treatment team extended his treatment programming.
During the March 27, 2017 probation-revoca tion hearing, the district court noted
that, procedurally, it had instituted revocation proceedings on August 29, 2016, on its own
motion pursuant to Minn. Stat. § 609.14, subd. 1(b) (2016), which was within six months
of the expiration of the probationary term date of August 7, 2016, as required by the statute.
After defense counsel offered the option of extending appellant’s probationary period, the

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district court noted that it did not have the au thority to do so becau se appellant had been
on probation for five y ears, the maximum permitted by Minn . Stat. § 617.247, subd. 4(a)
(2016), and that appellant was no longer on probation.
After several continuances, on July 3, 2017, appellant failed his final polygraph
examination because he showed a significant response to questions related to contact with
minors and sexual fantasies related to minors. Following the examination, appellant told
treatment staff that he had had such fantasies involving minor females and that he had not
reported them to treatment for the past few months. Appellant was unsuccessfully
discharged from sex-offender treatment because treatment staff believed that there was
nothing more that the program could do for hi m. On July 10, 2017, the district court
revoked appellant’s probation and executed his sentence. This appeal follows.
D E C I S I O N
Appellant contends that the district c ourt abused its discretion when it revoked his
probation because it failed to make Austin findings before doing so . For the reasons set
forth below, we reverse.
“A district 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.”
State v. Modtland , 695 N.W.2d 602, 605 (Minn. 2005) (quoting Austin, 295 N.W.2d at
249-50). Prior to revoking probation, the di strict court must “1) designate the specific
condition or conditions [of proba tion] 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 st ate has the burd en to prove a

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probation violation by clear and convincing evidence. State v. Ornelas, 675 N.W.2d 74,
81 (Minn. 2004).
In Ornelas, the district court revoked the appe llant’s probation, which had been
imposed for a conviction of third-degree criminal-sexual conduct, for having unsupervised
contact with a minor after the appellant’s probation officer observed him walking with his
girlfriend and her 16-year-old daughter. 675 N.W.2d 74, 78 (Minn. 2004). The appellant
challenged his probation revocation, arguing that having no contact with individuals under
18 years of age was never made a condition of his probation for his conviction of criminal-
sexual conduct. Id. at 76. The supreme court stated that “[i]nherent in [its] consideration
of the specific condition designated as having been violated is the question of whether the
condition was actually imposed as a condition of probation.” Id. at 79. The supreme court
reversed the appellant’s probation violation af ter it found no evidence in the record
indicating that the no-contact provision was ever made a condition of his probation. Id. at
81.
Similarly, here, inherent in our consideration of the first Austin factor, the specific
probation-condition violation relied upon to revoke probation, is the question of whether
the evidence shows that the designated conduct actually occurred within the probationary
period. See Modtland, 695 N.W.2d at 608 (stating that in making Austin findings, district
courts “must seek to convey their substantive reasons for revocation and the evidence relied
upon” (emphasis added)). If the violation occurred after the probationary period ended, “it
would be anomalous to conclude that the first Austin factor had been satisfied and go on to
consider whether the violation was intenti onal or inexcusable or whether the policies

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favoring probation outweigh the need for confinement.” Ornelas, 675 N.W.2d at 79. Thus,
if we are to address the Austin factors in this case, we must determine whether the district
court relied upon evidence of conduct that occurred within the probationary period in
determining whether appellant violated a condition of his probation. See id.
When the district court executed appellant’s sentence, it made its first Austin finding
and specified the condition of probation that appellant had violated:
Mr. Selzler, I really did not wa nt this to happen. And I was
hoping all the way from last summer that you were going to be
able to successfully complete the treatment program, pass your
polygraph, and we woul d all be on our way, hoping that you
would have achieved.

It is true that appellant’s August 2017 probation-violation report was the result of
appellant’s violation of the same condition of probation. However, each relied on distinct
evidence of conduct by appellant that gave rise to the probation violation. See Modtland,
695 N.W.2d at 608. Appellant’s probation-violation report stated that appellant had failed
to successfully complete sex-offender treatment simply because he had not done so within
his probationary period.
Conversely, the district court set fort h the specific evidence it relied upon in
determining that appellant had violated this condition of his pr obation: appellant’s
continued arousals involving children, accessi ng porn in November 2016, and failing to
disclose such until he failed the polygraph tests in March 2017 and July 2017. All of this
conduct occurred after appellant’s probation expired in August 2016. While appellant was
indeed unsuccessfully discharged from sex-o ffender treatment for these reasons, it was
improper for the district court to rely on th is evidence of conduc t in determining that

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appellant had violated this condition of his probation. Implic it in a probation violation is
that the violation be imposed for conduct that occurred while the person was actually on
probation.
We commend the district court for gi ving appellant many opportunities to
successfully complete sex-offender treatment. However, because the state did not meet its
burden to prove that a ppellant violated a c ondition of probation during the probationary
period by clear and convincing ev idence, we conclude that the district court abused its
discretion in relying on evidence of conduct that did not satisfy the first Austin factor
because it occurred after appellant’s probation had expired.1
Reversed.

1 Because we conclude that the first Austin factor has not been satisfied, we need not
address whether the second and th ird factors were satisfied. Ornelas, 675 N.W.2d at 81.
And because we reverse for this reason, we do not address appellant’s remaining
arguments.