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This opinion will be unpublished and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
A18-1201

State of Minnesota,
Respondent,

vs.

Paul Matthew Marsh,
Appellant.

Filed April 1, 2019
Affirmed
Ross, Judge

Koochiching County District Court
File No. 36-CR-16-740

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

Jeffrey S. Naglosky, Koochiching County Attorney, International Falls, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Jesson, Judge; and Klaphake,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
ROSS, Judge
Convicted of first-degree methamphetamine manufacturing, Paul Marsh repeatedly
violated his probation conditions by leaving his treatment facility, attempting to falsify a
urine sample, smuggling a controlled substance into the facility, using controlled
substances, failing to submit to random testing, failing to report to the probation
department, failing to complete treatment-aftercare requirements, and failing to remain law
abiding. The district court revoked Marsh’s probation and executed his stayed, 117-month
prison sentence. Marsh appeals. Because the record supports the district court’s findings
that Marsh’s violations were inexcusable and intentional and that the need for his
confinement outweighs the policies favoring probation, we affirm.
FACTS
In early 2017, Marsh pleaded guilty to first-degree methamphetamine
manufacturing in exchange for the dismiss al of another charge and the staying of a
117-month prison sentence on the condition that he complete drug treatment and avoid
consuming drugs, among other things.
Marsh failed the conditions almost immediately. In April 2017 he left the treatment
facility and when police picked him up, he attempted to falsify a urine test using toothpaste.
The state sought an order executing Marsh’s sentence, adding that Marsh had been charged
with smuggling Suboxone, a controlled substance, into the treatment facility. Marsh
admitted that he used Suboxone. The district court continued the proceedings without
revoking Marsh’s probation.
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Soon the district court considered three alleged violations: failing to abstain from
drugs, leaving the treatment facility, and failing to submit to urinalysis. Marsh admitted to
the first violation, “the facts of [the second violation], but not intent,” and denied the third.
The district court found that Marsh violated his probation by failing to abstain from drugs.
But before the district court could decide whether to revoke Marsh’s probation, he faced
another violation for failing to take prescribed medications. The district court then found
that Marsh intentionally and inexcusably violated probation on all the allegations. But it
reinstated Marsh’s probation, cautioning that doing so might have been “agains t [the
court’s] better judgment” because it believed Marsh was mentally ill and severely addicted.
Six months later, Marsh faced four additional violations: failing to follow through
with treatment-aftercare requirements, failing to report to the probation office, failing to
submit to random testing, and failing to remain law abiding. The district court found that
all of these violations were intentional and inexcusable and that the need for Marsh’s
confinement outweighed the policies favoring probation. The district court revoked
Marsh’s probation, and Marsh appeals.
D E C I S I O N
Marsh appeals from the district court’s decision to revoke his probation and execute
his stayed 117- month prison sentence. Marsh argues first that the district court did not
properly find that any of his probation violations were intentional or inexcusable. He argues
second that the district court did not properly find that the need for his confinement
outweighed the policies favoring probation. We will not reverse unless the district court
clearly abuses its broad discretion in determining that there is sufficient evidence to revoke
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probation. State v. Austin, 295 N.W.2d 246, 249–50 (Minn. 1980). We review de novo
whether the district court has made legally required findings. State v. Modtland ,
695 N.W.2d 602, 605 (Minn. 2005).
Marsh contends only that the district court failed to properly find, and the evidence
did not prove, that his violations were intentional or inexcusable and that the need for his
confinement outweighs the policies favoring probation. A district court must make three
findings on the record before revoking a defendant’s probation: that the defendant violated
a specific probation condition or conditions ; that “the violation was inexcusable or
intentional;” and that “the need for confinement outweighs the policies favoring
probation.” Id. at 606. Marsh’s challenge focuses on the second and third required findings.
Marsh contends that the district court’s finding that his violations were inexcusable
was based on a mistake of fact and therefore clearly erroneous. The district court seems to
have based its conclusion that Marsh’s violations were inexcusable at least in part on its
finding that Marsh lied to his psychiatrist about his history of heroin abuse. Marsh contends
that the district court was mistaken, pointing to the portion of his psychiatrist’s report that
Marsh identified “street opioids” and “prescription opioids” as drugs he abused. But Marsh
admitted that he did not fully divulge the history and extent of his heroin abuse. At the
hearing on Marsh’s first set of probation violations, the district court raised its concern that
Marsh had failed to discuss his lengthy history of heroin abuse with his psychiatrist. Marsh
admitted, “Your Honor, it just didn’t come up at the time. That was my first meeting with
him, and I was nervous and anxious, and I was ̶ I just wasn’t recalling everything at that
time, you know, like that – I’ve been a Heroin addict for 13 years, since 11 years old. And
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that’s the truth.” Marsh’s admission to withholding information about his lengthy heroin
addiction supports the district court’s finding that he lied about the extent of it. This defeats
Marsh’s contention.
Marsh argues next that the district court did not respond specifically to his stated
excuses in its findings of fact. The district court’s duty to revoke probation only after
finding that the violation is inexcusable does not on its face include a duty to particularly
discuss every excuse offered for each alleged probation violation , and Marsh fails to
identify any legal authority imposing the duty. Most of Marsh’s excuses revolved around
his suggestion that he had a difficult time complying with his probation conditions due to
his impoverishment. The district court generally rejected Marsh’s representations as not
credible by rejecting Marsh’s assertion that he was genuinely interested in completing
treatment. The record amply supports the district court’s finding that Marsh’s violations
were inexcusable because he did not have a genuine interest in completing treatment. As
such, the finding does not reflect an abuse of discretion.
Marsh suggests that the district court reflexively found his violations inexcusable.
See Modtland, 695 N.W.2d at 608; Austin , 295 N.W.2d at 251 (prohibiting reflexive
revocation based on technical violations). But the district court’s findings focus on Marsh’s
chronic inability to avoid drugs or complete treatment, which are the central features of his
probation rather than mere technical components. The district court observed that Marsh’s
crime and his probation violations arose from his continued addiction. It then inferred that
Marsh would continue in drug-related misconduct on probation. Marsh has not shown that
the district court either acted reflexively or based its decision on mere technical violations.
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Marsh also argues that the evidence did not indicate that confinement was necessary
to protect the public. I mprisonment following a probation violation should occur only if
“the court finds on the basis of the original offense and the intervening conduct of the
offender” that the offender’s confinement is necessary for any of three reasons: the public
needs protection from the offender’s future criminal activity, the offender needs
correctional treatment that can most effectively be provided in a confined setting, or the
offender’s remaining in the community “would unduly depreciate the seriousness of the
violation.” Modtland, 695 N.W.2d at 607 (quotation omitted). The record easily supports
the first two bases. Marsh’s continued drug- related conduct on probation demonstrated
plainly that he presented a risk of more criminal conduct. The record of Marsh’s repeated
misconduct also supports, if not compels, the district court’s f inding that he needs the
discipline of correctional treatment specifically.
Marsh argues more persuasively that the district court misapplied the third ground
for revoking probation in its finding that allowing him to continue on probation “would
unduly depreciate the seriousness of the violation.” Id. (quoting Austin, 295 N.W.2d at 251)
(emphasis added). We find some support for Marsh’s contention that the district court
focused on the seriousness of the underlying crime rather than the seriousness of his
violations:
And I have to consider all of the urgings that [Marsh] has put
forth in his arguments. But whether probation in that case
would duly depreciate the seriousness of the violations and I
think also the underlying charge if probation were not revoked.
Remember this was a -- this [is] a committed case. This is
something that our legislature has passed judgment on and said
that people that have convictions like this should go to prison.
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That they must unless there is reasons, very compelling
reasons, not to. It’s presumed that Mr. Marsh should have gone
to prison the first time and the second time, which this Court
decided not to, over the strenuous objection if I am not
mistaken, by both probation and by the State. And I extended
another opportunity. In retrospect, [the prosecutor] puts it
pretty good when he says we spent a lot of money on thing[s]
and we have gone nowhere. And I agree.

Although the district court did discuss the revocation in the context of the underlying
offenses, the district court also clearly had the violations themselves under consideration
as reflected in its statement, “But whether probation in that case would duly depreciate the
seriousness of the violations and I think also the underlying charge if probation were not
revoked.” (Emphasis added). If the district court had revoked on the seriousness of Marsh’s
underlying crime alone, it would have abused its discretion. We are satisfied that this did
not occur.
The district court did not abuse its discretion by revoking Marsh’s probation.
Affirmed.