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This opinion will be unpublished and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
A17-1655

State of Minnesota,
Respondent,

vs.

Thomas Brian Sobtzak,
Appellant.

Filed April 16, 2018
Affirmed
Hooten, Judge

Crow Wing County District Court
File No. 18-CR-16-2277

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

Donald F. Ryan, Crow Wing County Attorney, Brainerd, Minnesota; and

Todd S. Webb, Special 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 Hooten, Presiding Judge; Johnson, Judge; and Kirk,
Judge.

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U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant contends that the district court abused its discretion by revoking his
probation, arguing that policies favoring probation outweigh the need for his confinement.
He specifically argues that the state failed to establish that confinement was necessary
because it did not show that (1) he was charged with any new crimes, (2) there was any
evidence that his treatment goals could only be accomplished in prison, and (3) his
violations, which occurred within the first two months of being on probation, would unduly
depreciate the seriousness of his violations if probation was revoked. We affirm.
FACTS
Appellant Thomas Brian Sobtzak pleaded guilty to 23 counts of felony violation of
an order for protection, in violation of Minn. Stat. § 518B.01, subd. 14(d)(1) (2014). In
January 2017, the district court imposed on Sobtzak consecutive sentences of one year and
one day in prison for the first ten counts, each to be served consecutively with the sentences
from another court file, and concurrent sentences of 31 months for the remaining 13 counts.
The district court stayed execution of all 23 sentences and placed him on probation for ten
years. As part of his probation, the district court imposed several conditions that S obtzak
was required to follow.
Sobtzak’s probation officer filed a probation violation report on March 1, 2017. The
report indicated that Sobtzak violated the terms of his probation by failing to : (1) inform
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her of his recent contact with law enforcement, 1 (2) verify completion of a domestic
violence inventory, (3) maintain full -time employment or education, and (4) submit
documentation of a discharge plan from prior chemical dependency programming. The
report requested that a warr ant be issued for his arrest, and p olice arrested Sobtzak five
days later.
The probation officer later amended the report to add three new violations for failing
to (5) avoid consuming alcohol or other intoxicants, (6) remain compliant with prescribed
medications, and (7) notify her of any change to his address. The p robation officer also
submitted a memorandum to describe Sobtzak’s lack of progress while on probation. She
recommended in her memorandum that the district court revoke Sobtzak’s probation and
execute his sentences.
In July 2017, the district court held a contested probation violation hearing, at which
both Sobtzak and the probation officer testified . Sobtzak admitted to each of the seven
violations in the report and acknowledged that the violations were intentional and
inexcusable. But he argued that the district court should not revoke his probation because
the need to execute his sentences did not outweigh the policies favoring probation. In
August 2017, the district court ordered that Sobtzak’s probation be revoked and that each
of his sentences be exe cuted. The district court determined that the polic ies favoring
probation did not outweigh the need for his confinement, finding that (1) Sobtzak is not

1 In February 2017, Sobtzak was a passenger in a car driven by his girlfriend that was pulled
over by police on suspicion of driving while impaired. Sobtzak spoke with police during
the incident but did not report the interaction to his probation officer, thereby violating the
terms of his probation.
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amenable to probation, (2) the seriousness of his violations would be unduly depreciated if
his probation was not revoked, and (3) he is in need of correctional treatment.
This appeal followed.
D E C I S I O N
Sobtzak argues that the district court abused its discretion by revoking his probation
and executing his sentences. The district court has broa d discretion to determine whether
sufficient evidence exists to revoke probation, and we will not reverse its decision absent
an abuse of that discretion. State v. Austin, 295 N.W.2d 246, 249–50 (Minn. 1980). But,
the district court’s 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. at 251
(quotation omitted).
To revoke probation, the district court must make findings regarding three factors:
(1) the probationer violated a condition of probation; (2) the violation was intentional or
inexcusable; and (3) the need for confinement outweighs the polic ies favoring probation.
Id. at 250. Whether the district court made the requisite findings of these Austin factors
presents a question of law that we review de novo. State v. Modtland, 695 N.W.2d 602,
605 (Minn. 2005). Sobtzak only contends that the district court erred in its findings on the
third Austin factor because the state failed to present sufficient evidence to satisfy this
factor.
“When determining if revocation is appropriate, courts must balance the
probationer’s interest in freedom and the state’s interest i n insuring his rehabilitation and
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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. App. 2011) (quotation omitted), review denied
(Minn. July 19, 2011). Specific to the third Austin factor, the district court should consider
three sub-factors regarding whether:
(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 depreciate the seriousness of the
violation if probation were not revoked.

Modtland, 695 N.W.2d at 607.
Sobtzak first claims that his confinement is not necessary because he was not
charged with any new crimes during the peri od that he was on probation. T his argument
is unpersuasive. Sobtzak’s numerous violations of his probation, even if they do not
amount to crimes themselves, reflect the district court’s reasonable assessment that he is
unable or unwilling to accept responsibility for his actions and cannot be counted on to
remain law abiding. The district court determined that Sobtzak is not amenable to
probation because he has a history of domestic violence with the proclivity of developing
relationships with vulnerable women whom he later abuses. These findings are consistent
with the evidence in the record. The probation officer testified t hat Sobtzak has an
extremely lengthy criminal history of domestic-related violence. She further explained that
even while he is on probation, he continues to commit new, felony-level domestic offenses
that are increasingly violent. The Minnesota Supreme Court has concluded that a district
court does not abuse its discretion by revoking an offender’s probation based upon his
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“lengthy history of criminal activity and chronic probation and treatment failures.” State
v. Osborne, 732 N.W.2d 249, 256 (Minn. 2007).
Sobtzak next argues that the evidence does not support the finding that he must be
confined to most effectively receive corrective treatment. The district court found that his
chemical dependency treatment was ineffective because his chemical use continued after
treatment. The evidence suggests that Sobtzak was not interested in long -term treatment
to overcome his chemical dependency issues but rather perceived treatment as an avenue
to avoid incarceration. The supreme court has explained that it is not unreasonable for the
district court to conclude that outside treatment has failed when the offender has failed to
take advantage of treatment opportunities or “show a commitment to rehabilitation.”
Austin, 295 N.W.2d at 251. One of his probation violations was the result of a urinary
analysis screening that tested positive for methadone and opiates. Sobtzak admitted that
he was abusing his methadone prescription by taking excessive doses and that he was
“scoring some heroin” during his visits to the methadone clinic. Moreover, when police
arrested him in March 2017, the officers found five hypodermic needles in the hot el room
where he was staying. Contrary to his own opinion, Sobtzak has failed to show that his
treatment plan while on probation has been effective. The district court’s finding that
Sobtzak is in need of corrective treatment , which can be most effectively provided while
in confinement, is adequately supported by the record.
Finally, Sobtzak argues that remaining on probation does not unduly depreciate the
seriousness of his violations. He asserts that each of his violations could be addressed
through local sanctions such as jail time. The district court noted that Sobtzak has not
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shown any willingness to complete domestic viole nce programming. Indeed, the district
court stated that he “has never even tried to enter into domestic violence programming.”
The record reveals that Sobtzak told his probation officer that his “only crime is loving
women, and loving them too much.” Th is further explains Sobtzak’s intentional and
excusable failure to submit his domestic violence inventory and also supports the district
court’s conclusion that he appears unable or unwilling to take accountability for his actions.
Therefore, it was not u nreasonable for the district court to conclude that keeping Sobtzak
on probation would unduly depreciate the seriousness of his seven violations.
For these reasons, we conclude that the district court did not abuse its broad
discretion in revoking Sobtzak’s probation because the evidence in the record is sufficient
to support the district court’s finding that the need for his confinement outweighs the
policies favoring probation.
Affirmed.