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This opinion will be unpublished and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
A18-1427

State of Minnesota,
Respondent,

vs.

Shayne Carl Nelson,
Appellant.

Filed April 15, 2019
Affirmed
Randall, Judge*

Pine County District Court
File No. 58-CR-16-510

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

Reese Frederickson, Pine County Attorney, Pine City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Smith, Tracy M. , Judge; and
Randall, 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
RANDALL, Judge
Appellant challenges the revocation of his probation, arguing that the district court
abused its discretion in determining that the need for confinement outweighed the policies
favoring probation. We affirm.
FACTS
On January 20, 2016, a trooper with the Minnesota State Patrol observed appellant
Shayne Carl Nelson driving in Pine County. The trooper was aware that Nelson’s driving
privileges had been cance led as inimical to public safety. The trooper activated his
emergency lights to initiate a traffic stop , and then observed Nelson throw something out
of the driver side window before stopping the vehicle. The trooper placed Nelson under
arrest and then returned to the location where he saw Nelson throw something o ut of the
vehicle. He discovered an “eight ball” of a substance that field tested positive for
methamphetamine.
Respondent State of Minnesota charged Nelson with a third-degree controlled -
substance crime and driving after revocation-inimical to public safety. On April 20, 2017,
the parties appeared before the district court and indicated they had reached a plea
agreement in which Nelson would plead guilty to fifth -degree controlled-substance crime
and request a sentence of a year and a day, a downward durational departure. The parties
believed that Nelson had enough jail credit to satisfy the sentence without serving
additional jail time. Nelson later withdrew the plea because the parties had been mistaken
about his amount of jail credit and he no lon ger wished to move forward with the plea

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agreement because it would require him to serve additional time. The parties instead
indicated that they had reached a new plea agreement that called for a downward
dispositional departure. In November of 2017, t he district court accepted Nelson’s plea,
sentenced him to 21 months in prison, stayed execution of the sentence, and placed him on
probation for five years.
On May 10, 2018, the state filed a probation -violation report. The report alleged
that Nelson had violated the terms of his probation because he had a new charge for driving
after cancellation, he failed to report the arrest to his probation officer, he failed to contact
probation as directed and follow all instructions, and he had used methampheta mine. On
June 5, the district court held a probation -violation hearing. Nelson admitted that he had
failed to remain law abiding because he had a new conviction for driving after cancellation
and that he had used methamphetamine. Nelson admitted that th e violations were willful.
The state dismissed the remaining allegations.
The state requested that the district court revoke Nelson’s probation and execute his
sentence. Teresa Goebel, his probation officer, recommended that his probation be
revoked. She opined that Nelson was “ver y criminal, rarely is honest and lacks
accountability when it comes to his criminality.” She also stated that “he has shown over
and over again that he is not amenable to community supervision.” Nelson argued his
probation should not be revoked because he had not failed to comply with treatment
recommendations as no treatment had been ordered, he did not pose a risk to public safety,
and it would not unduly dep reciate the seriousness of the violation if probation were not

4
revoked. The district court revoked Nelson’s probation and executed his sentence. This
appeal follows.
D E C I S I O N
The district court has broad discretion in determining whether sufficient evidence
exists to revoke probation , and we will reverse only if there is a clear abuse of that
discretion. State v. Austin , 2 95 N.W. 2d 246, 249 -50 (Minn. 1980). When revoking
probation, a district court must : (1) specify the conduct or conditions that the probation er
violated; (2) find the violation was intentional or inexcusable; and (3) find that the need for
confinement outweighs the policies favoring probation. Id. at 250. The district court’s
decision to revoke probation “cannot be a reflexive reaction to an accumulation of technical
violations but requi res a showing that the offender’ s behavior demonstrates that he . . .
cannot be counted on to avoid antisocial activity.” Id. at 251 (quotations omitted).
Nelson argues that the district court abused its discretion in determining that the
need for confinement outweighs the policies favoring probation. When analyzing this
factor, a d istrict court must consider that the purpose of probation is rehabilitation, and
revocation should be a last resort. State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005).
The need for confinement outweighs the policies favoring probation if at least one of three
subfactors are met:
(i) confinement is necessary to protect the public from
further criminal activity by the offender; or
(ii) the offender is in need o f 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.

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Austin, 295 N.W.2d at 251.
The district court determined that confineme nt was necessary to protect the public
from further criminal activity and that it would unduly depreciate the seriousness of the
violations if Nelson’s probation was not revoked. The district court correctly reasoned that
Nelson was a risk to public safet y because he continued to use m ethamphetamine and
obtained a new criminal conviction. The district court noted that Nelson’s driving
privileges had been canceled as inimical to public safety, yet he continued to drive. The
district court next determined that it would depreciate the seriousness of the violations if
probation were not revoked because : (1) Nelson received a dispositi onal departure ;
(2) violated the conditions a few months later; and (3) in general had little correctional time
left on his sentence. Finally, the district court determined that Nelson had not demonstrated
that he was capable of cooperating with probation. The district court noted that when the
departure was granted the court was “expecting, quite fra nkly, very little of you ,” y et
Nelson “failed to remain law abiding, you failed to abstain, and it looks like you have really
no intention or plan of how you are going to be cooperative.”
Nelson argues that the district court abused its discretion in revoking his probation
because there are meaningful alternative sanctions and programming available in the
community. He argues that his violations —driving a car without a license and use of
methamphetamine—do not show that the public needs to be protected from further criminal
activity. We disagree. H is driving privileges were revoked as inimical to public safety,
and thus the fact that he continues to drive poses a risk to the public. The district court also
noted that Nelson had manipulated an older woman into letting him use he r vehicle so he

6
could continue to drive without a license . Members of the public have been affected by
his criminal behavior.
Nelson does not directly challenge the district court’s determination that it would
unduly depreciate the seriousness of the violatio n if probation were not revoked. But he
emphasizes that he merely drove without a license, relapsed in using methamphetamine,
and that it had been seven months since sentencing and only one probation-violation report
had been filed . Although Nelson was sentenced in November 2017 , and the probation
violation report was not filed until May 2018, the two violations he admitted to occurred
in January and March 2018. Thus, he violate d the terms of his probation by receiving a
new charge just two months after being granted a downward dispositional departure, and
then violated it again two months after that. The fact that Nelson received a downward
dispositional departure is appropriate to consider when determining if probation should be
revoked. See State v. Fleming , 869 N.W.2d 319, 331 (Minn. App. 2015) (“Fleming
complains that the district court considered its grant of a downward dispositional departure
when deciding whether to revoke probation. That was a proper consideration.”), aff’d, 883
N.W.2d 790 (Minn. Aug. 17, 2016).
The district court’s primary concern was that Nelson was not even attempting to
cooperate with probation. This is supported by the testimony of his probation officer, who
stated that Nelson “rarely is honest and lacks accountability” and had shown that “he is not
amenable to community supervision.” On this record, the district court properly revoked
Nelson’s probation. The district court provided a thorough explanation of its determination

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that the need for confinement outweighed the policies favoring probation, and the record
supports this determination.
Affirmed.