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This opinion will be unpublished and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
A17-1924

State of Minnesota,
Respondent,

vs.

David Lawrence Pillatzki, Jr.,
Appellant

Filed August 6, 2018
Affirmed
Worke, Judge

Kandiyohi County District Court
File No. 34-CR-13-10

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

Shane D. Baker, Kandiyohi County Attorney, Aaron P. Welch, Assistant County Attorney,
Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, John Charles Donovan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Worke, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that the district court abused its discr etion by revoking his
probation. We affirm.

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FACTS
Appellant David Lawrence Pillatzki, Jr. i s ineligible to possess a firearm. After
officers found a video on Pillatzki’s Facebook page of him shooting a semi -automatic
assault-type rifle, he was charged with two counts of ineligible per son in possession of a
firearm.
In February 2013, the district court held a plea hearing. In addition to the felon-in-
possession-of-a-firearm charges, Pillatzki had four pending criminal matters. The parties
negotiated a global resolution, with the state agreeing to a down ward dispositional
departure. Pillatzki pleaded guilty to one count of felon in possession of a firearm and the
state dismissed the second count . He also pleaded guilty to fleeing a peace officer in a
motor vehicle, two counts of driving after cancellation—inimical to public safety, and fifth-
degree possession of a controlled substance.
A presentence investigation (PSI) outlined Pillatzki’s extensive criminal history.
Pillatzki’s criminal history includes f elonies for second -degree burglary, motor -vehicle
theft, driving while impaired ( DWI), DWI test refusal, fifth-degree controlled-substance
possession, and fleeing a pol ice officer in a motor vehicle. T he majority of Pillatzki’s
convictions were related to hi s drug and alcohol use. Pillatzki completed in patient
treatment programs three t imes, twice while incarcerated. Pillatzki was unsuccessfully
discharged from one attempt at out patient treatment in 2012. In summary, the PSI noted
that Pillatzki has been in the criminal -justice system since he was 13 years old, and the
longest period of time that he had been free from some form of incarceration was 18
months. “Pillatzki [saw] himself as institutionalized” and “not able to handle the daily

3
stresses of living free in the community and when not able to handle the stresses he turns
to drugs or alcohol.”
On April 15, 2013, the district court sentenced Pillatzki to the presumptive sentence
of 60 months in prison, but granted Pillatzki a downward dispositional departure and stayed
execution of the sentence. The district court stated that it would give Pillatzki a chance to
“be clean and sober” and take seriously the fact that most of his crimes involve d drugs
and/or alcohol. The district court place d Pillatzki on probation for ten years, informing
him that if he violated it could result in execution of his prison sentence. Conditions of
Pillatzki’s probation required him to, among other things, not use or possess alcohol or
mood-altering chemicals, submit to random drug and alcohol testi ng, and remain law
abiding.
On April 6, 2017, a probation -violation report was filed, alleging that on April 1 ,
Pillatzki was pulled over for an equipment violation and, after the officer detected alcohol
on Pilla tzki’s breath, Pillatzki refused to submit to an alcohol test. On August 24, an
addendum to the violation report was filed, alleging that Pillatzki had been charged with
several controlled-substance crimes.
At the probation-revocation hearing, Pillatzki admitted that he violated his probation
on April 1 by driving a vehicle after drinking alcohol and refusing alcohol testing. The
district court noted that, although the criminal charges were dismissed due to an issue with
the stop, Pillatzki violated his probation by driving a vehicle after consuming alcohol and
refusing the alcohol test . The prosecutor noted that Pillatzki also had a misdeme anor
assault conviction in 2016 and that Pillatzki had been drinking alcohol during the assault.

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A violation was not reported on that incident because the parties agreed that Pillatzki would
serve ten days.
Pillatzki testified that after his recent conviction he sought treatment and remained
sober until he underwent stomach surgeries in 2016 and became addicted to pain
medication. Around that time, two of Pillatzki’s children moved back in with their mother
and his girlfriend ended their relationship. Pillatzki also testified that he was accepted at
Teen Challenge, a program significantly longer than past programs he attended. Pillatzki
testified that if given an opportunity to complete treatment, he could remain sober.
The district court stated that chemical dependency seemed to be Pillatzki’s
“demon,” and acknowledged the value of Teen Challenge. But the district court found that
Pillatzki’s issue was that he regularly relapsed , “[a]nd the trouble with [ his] relapses are
that they involve something that’ s dangerous” to the public. While recog nizing that
revocation “should be used only as a last resort when treatment has failed,” the district
court stated that all of Pillatzki’s prior treatments failed. The district court concluded that
the need for confinement outweighed the policies favoring probation and was necessary to
protect the public from further criminal activity. The district court stated:
[E]very time you go in, you come back out and you engage in
more criminal activity. You cannot control yourself
apparently. And eventually it comes time where we . . . can’t
just look at another treatment opportunity because if it fails you
endanger others. Every time. And I can’t let that . . . keep
going on.

The district court revoked Pillatzki’s probation. This appeal followed.

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D E C I S I O N
“The [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. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980); see State v. Ornelas,
675 N.W.2d 74, 79 (Minn. 2004) (stating that the state must prove a probation violation by
clear and convincing evidence).
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 . . . cannot be counted on to avoid antisocial activity.” Austin, 295
N.W.2d at 251 (quotation s omitted). Before a district court may revoke an offender’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. Pillatzki does not
dispute the district court’s findings on the first two Austin factors. He argues only that the
record does not support the district court’s decision that the need for confinement
outweighs the policies favoring probation.
In assessing the third Austin factor, the district court should consider whether
“confinement is necessary to protect the public from further criminal activity ,” “the
offender is in need of correctional treatment which can most effectively be provided if he
is confined,” or “it would unduly d epreciate the seriousness of the violation if probation
were not revoked.” Id. at 251 (quotation omitted). Here, the district court determined that

6
confinement is necessary to protect the public from further criminal activity, and that n ot
executing the sentence would unduly depreciate the seriousness of the violations.
Pillatzki concedes that “[t]he facts here may have supported revoking probation, but
policy considerations did not.” Pillatzki argues that the district court appeared to focus on
his history of probation vio lations and treatment failures, but the district court was aware
of his history at sentencing when it granted Pillatzki a downward dispositional departure.
At sentencing, the district court was aware of Pillatzki’s extensive criminal history,
long history of alcohol and drug use, and treatment attempts. At sentencing, Pillatzki was
aware that the district court was giving him a chance to be sober, and that if he violated his
probation, it could trigger execution of his sentence. Thus, although the district court was
aware of Pillatzki’s history at sentencing, Pillatzki was also aware that he was being
afforded a chance to prove that he could be successful on probation.
Moreover, the district court did not focus on Pillatzki’s history of violations and
treatment failures ; r ather, the district court focused on the fact that “ the trouble with
[Pillatzki’s] relapses are that they involve something that’s dangerous” to the public. The
district court stated that when Pillatzki relapsed, he engaged in criminal activity. The
district court noted that Pillatzki cou ld not control himself and that another treatment
opportunity was not an option because if it failed, Pillatzki would “endanger others” as he
has done after prior treatments failed.
The district court determined that it could not let the cycle continue. Caselaw does
not preclude consideration of an offender’s pattern of behavior. See State v. Osborne, 732
N.W.2d 249, 256 (Minn. 2007) (affirming probation revocation when the district court

7
considered the offender’s “ lengthy history of criminal activity and chronic probation and
treatment failures”); State v. Rottelo , 798 N.W.2d 92, 95 (Minn. App. 2011) (affirming
probation revocation, noting prior offenses and history of prob ation noncompliance),
review denied (Minn. July 19, 2011).
Additionally, the record supports the district court’s conclusion that Pillatzki’s
relapses led to dangerous criminal behavior. Pillatzki has a misdemeanor assault
conviction following a relapse in 2016. The April 2017 incident involved Pillatzki driving
after consuming alcohol. And the addendum to the probation -violation report stated that
Pillatzki was charged with first -, third-, and fifth -degree controlled-substance cri mes—
sale, attempted sale, and possession. This criminal conduct—assault, DWI, and selling
drugs—endangers others. Relapsing by consuming alcohol and being unsuccessfully
discharged from treatment are troubling. But a relapse leading to criminal activity that
endangers the public is more troubling, which is what the district court focused on when it
revoked Pillatzki’s probation.
Pillatzki also argues that, while he had previous probation violations in past cases,
this was his first violation in this case and he had been in the community for four years and
demonstrated that he could be counted on to avoid antisocial activity. The record does not
support this assertion. Although this was Pillatzki’s first reported violation in this case, the
prosecutor noted that Pillatzki had been convicted of assault in 2016. Additionally, the law
does not prevent a district court from revoking probation based on an offender’s first
violation. Although Austin describes revocation as a “last resort,” it do es not establish a
right to one violation without revocation. 295 N.W.2d at 250. Rather, the supreme court

8
stated that “revocation should be used only as a last resort when treatment has failed.” Id.
The district court stated that Pillatzki’s several treatments all failed.
Pillatzki argues that his confinement “may temporarily protect the public, but it
does not protect the public once [he] is released,” because he needs treatment and the prison
treatment programs proved unsuccessful in his case and prison is where he was introduced
to methamphetamine. However, revocation of Pillatzki’s probation does not prevent him
from seeking additional treatment once he is released from prison. Pillatzki ca n avail
himself of institutional resources and then he may choose to continue treatment once he is
released. Further, while Pillatzki claims that his attempts at prison treatment programs
were unsuccessful, his PSI shows that he completed two treatment programs while
incarcerated, but it was his outpatient -treatment attempt in 2012 that resulted in an
unsuccessful discharge.
Pillatzki argues that despite the district court finding that not executing the sentence
would unduly depreciate the seriousness o f the violations, he relapsed because he was
prescribed medications following surgeries and continued to use during a stressful period.
Pillatzki argues that the best way to protect the public is to help him to overcome his
addiction, which can be done if he is permitted to attend the Teen Challenge program. The
district court agreed that the Teen Challenge p rogram is valuable. But Pillatzki’s long
cyclical history of treatment, relapse, and criminal activity did not support a determination
that he could be successful on continued probation. See State v. Hemmings, 371 N.W.2d
44, 47 (Minn. App. 1985) (affirming probation revocation when evidence supported district
court’s finding that offender was “unamenable to treatment”).

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The record shows that Pillatzki has a long history of convictions with the majority
related to his drug and alcohol abuse. Pillatzki is currently in his early forties and he has
been involved in the criminal justice system since he was 13 years old. The PSI noted that
“Pillatzki [saw] himself as institutionalized” and “not able to handle the daily stresses of
living free in the community and when not able to handle the stresses he turns to drugs or
alcohol.” “When determining if revocation is appropriate, cour ts must ba lance the
probationer’s interest in freedom and the state’ s interest in insuring his rehabilitation and
the public safety, and base their decisions on sound judgment and not just their will.” State
v. Modtland, 695 N.W.2d 602, 606-07 (Minn. 2005) (quotations omitted). Here, the district
court’s decisio n was based on sound judgment. The district court did not abuse its
discretion in revoking Pillatzki’s probation.
Affirmed.