State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0647

State of Minnesota,
Respondent,

vs.

Johnathan Demetrius Lee Henry,
Appellant.

Filed January 14, 2019
Affirmed
Florey, Judge

Hennepin County District Court
File Nos. 27-CR-14-22664; 27-CR-16-9401

Keith M. Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin Co unty Attorney, Patrick Lofton, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Schel lhas, Presiding Judge; Reilly, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
In this probation-revocation appe al, appellant argues that the record does not
support the district court’s finding that the need for confinem ent outweighs the policies

2
favoring continued probation. Because the record supports the finding and the district court
did not abuse its discretion by revoking probation, we affirm.
FACTS
During a vehicle search, officers found a large amount of cocai ne and a small
amount of heroin in a bag. Appellant Johnathan Demetrius Lee H enry admitted that the
bag containing the drugs was his, and the state charged him with first-degree possession of
cocaine. The state amended the complaint, adding charges of fi rst-degree sale of cocaine
and fifth-degree possession of heroin. The state again amended the complaint, adding a
charge of bribing a witness based on the allegation that appell ant induced another
individual, who was a passenger in the vehicle, to claim possession of the drugs.
In April 2015, appellant pleade d guilty to first-degree posses sion, and the other
charges were dismissed. He had three criminal-history points f or convictions of second-
degree criminal sexual conduct, failure to register, and simple robbery. The presumptive
sentence was 122-months executed. Minn. Sent. Guidelines 4.A ( 2014). He received a
122-month sentence, with execution stayed, and he was placed on probation for five years.
The sentence constituted a downwar d dispositional departure, ba sed primarily on his
amenability to probation.
Approximately five and a half m onths after sentencing, appellant was charged with
two counts of fifth-degree possession: one count involving alpr azolam, and the other
heroin, and because of these char ges, a probation violation was alleged. In September

3
2016, appellant pleaded guilty to possession of heroin.1 He received a 21-month sentence,
with execution stayed, and he was ordered to serve 365 days in the workhouse. On the
probation violation, he was reinstated on probation and ordered to serve 365 days
concurrently with his workhouse sentence. He was also ordered to complete cognitive
skills and chemical-dependency programming. The remaining poss ession charge was
dismissed.
While in the workhouse, appellant was charged with fifth-degre e possession and
introducing contraband into jail after he was discovered passin g a newspaper filled with
controlled substances to anothe r inmate. He was placed into a separation unit and was
unable to complete programming r equired under his probationary terms. A probation
violation was alleged because of h i s f a i l u r e t o r e m a i n l a w a b i ding and his failure to
complete cognitive skills and chem ical-dependency programming. In January 2018, a
contested probation-violation hearing was held.
At the hearing, a correctional officer testified that, on May 3 0, 2017, she saw
appellant, who was a “trustee” with outside access, trying to p ass a newspaper to another
inmate. Inside the newspaper was marijuana and white pills broken into four pieces, which
later tested positive for oxycodone.
Appellant’s probation officer testified that, since appellant’s release from the
workhouse in August 2017, he had found stable housing, maintain ed employment, and
maintained mental-health appoint ments. The probation officer h ad no concerns about

1 Appellant also pleaded guilty to misdemeanor theft in regard to a shoplifting offense that
occurred on March 8, 2016.

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appellant being in the community since his release. However, t he probation officer
acknowledged that appellant had “some significant criminal history in the past,” and “his
criminal behavior has been ongoing since he’s been on probation.”
A corrections supervisor testifie d that appellant never tested positive for chemical
substances while participating in a work program run by the workhouse, and appellant did
not test positive on May 30, the date of the contraband incident. The corrections supervisor
generally had a positive impression of appellant.
The district court revoked appellant’s probation. The court f ound that appellant had
not remained law abiding, that appellant knowingly possessed controlled substances in the
workhouse, and that appellant transferred contraband in the wor khouse. The court found
that the violations were intenti onal and inexcusable. The cour t acknowledged that
appellant had “done well the last few months.” But given appel lant’s “long history of
criminal behavior,” his violations while in custody, the fact t hat he abused his position as
a trustee in the workhouse, the fact that he twice failed to re main law abiding since being
given a dispositional departure, and the fact that the violations were felonies and not merely
technical violations, the court concluded that revocation was appropriate.
The court found that appellant was “currently a threat to the public safety” because
he may commit property crimes or other types of crimes in the future. The court found that
appellant’s behavior demonstrated “that he cannot be counted on to avoid future criminal
or antisocial activity,” and that not revoking probation based on appellant’s second
violation would “unduly deprecia te the seriousness” of the viol ation. The court ordered

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that appellant’s 122-month sentence be executed. The court ord ered that appellant’s 21-
month sentence be executed concurrently. This appeal followed.
D E C I S I O N
Appellant argues that the distric t court abused its discretion by revoking his
probation because the record does not support a finding that hi s need for confinement
outweighs the policies favoring pr obation. “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. Ornelas, 675 N.W.2d 74, 79 (Minn.
2004) (quoting State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980)).
Before a district court may revoke probation, it must make spe cific findings on the
three Austin factors. State v. Modtland , 695 N.W.2d 602, 606 (Minn. 2005). First, the
district court must designate t he specific probation condition or conditions that were
violated. Austin, 295 N.W.2d at 250. Second, the district court must find that the violation
was intentional or inexcusable. Id. Third, the district court must determine whether the
need for confinement outweighs the policies favoring probation. Id. Appellant does not
challenge the district court’s findings on the first two factor s . He f oc us e s o n t he t hi r d
Austin factor.
When analyzing the third Austin factor, a district court must consider that “policy
considerations may require that probation not be revoked even though the facts may allow
it[,] and that the purpose of probation is rehabilitation and revocation should be used only
as a last resort when treatment has failed.” Modtland, 695 N.W.2d at 606 (quotations
omitted). The district court must balance the probationer’s in terest in freedom with the

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state’s interest in ensuring the probationer’s rehabilitation a nd the public’s safety. Id. at
607. The district court should base its decision on sound judg ment, not its own will. Id.
W h e n a n a l y z i n g t h e a p p r o p r i a t e b a l a n c e b e t w e e n p u b l i c s a f e t y a nd the probationer’s
freedom, the district court should consider the following:
Revocation followed by impris onment should not be the
disposition, . . . unless the court finds on the basis of the
original offense and the intervening conduct of the offender
that:
(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.

Austin, 295 N.W.2d at 251 (quotation omitted).
Appellant points to the testi mony of his probation officer and argues that his mental-
health maintenance has “helped him succeed on supervision,” and chemical dependency is
no longer an issue. Appellant also argues that his success sin ce being released from the
workhouse cuts against the district court’s finding that he “ca nnot be counted on to avoid
future criminal or antisocial activity.” He asserts that inter mediate sanctions are more
appropriate and would not unduly depreciate the seriousness of the violations.
The district court weighed the relevant factors and did not ab use its discretion by
revoking probation. The court found that confinement was necessary to protect the public
and that not revoking probation would unduly depreciate the ser iousness of appellant’s
actions, and the record supports these findings. The district court acknowledged
appellant’s success since being released from the workhouse, bu t was swayed by

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appellant’s repeated violations and offenses, his abuse of his position as a trustee at the
workhouse, his repeated failure to remain law abiding since rec eiving a dispositional
departure, and the fact that his probation violations have been felony offenses and not mere
technical violations. The record supports the district court’s finding that the need for
confinement outweighs the policies favoring continued probation.
Affirmed.