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This opinion will be unpublished and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
A18-1677

State of Minnesota,
Respondent,

vs.

Cressdina Danika Bondeson,
Appellant.

Filed June 24, 2019
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Ramsey County District Court
File No. 62-CR-16-4884

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

John J. Choi, Ramsey County Atto rney, Peter R. Marker, Assistan t County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. E uteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Sche llhas, Presiding Judge; Jesson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Cressdina Bondeson pleaded guilty to and was convicted of fifth-degree
assault, fifth-degree possession of a controlled substance, and third-degree possession of a

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controlled substance. The district court imposed three concurre nt sentences but granted a
downward dispositional departure, staying execution of those se ntences and placing
Bondeson on probation. Two years later, the district court revo ked her probation and
executed the sentences. Bondeson appeals from the revocation, a rguing that the district
court (1) abused its discretion by revoking her probation and ( 2) erred by sentencing her
on both counts of controlled-su bstance possession and by miscal culating her criminal-
history score. We affirm the district court’s revocation, but w e reverse and remand for
resentencing.
FACTS
In July 2016, Bondeson was arrested following an incident in wh ich she hit a tow-
truck driver during a dispute over payment. During the booking process, police discovered
that Bondeson was in possession of 5.8 grams of cocaine and 1.0 6 grams of
methamphetamine. Bondeson was charged with fifth-degree assault , third-degree drug
possession, and fifth-degree drug possession. She entered a str aight plea of guilty to the
charges and was convicted of each count. The district court sen tenced her to 24 months’
imprisonment on the assault, 61 months’ imprisonment on the third-degree possession, and
28 months’ imprisonment on the fifth-degree possession, staying execution of these
sentences and placing Bondeson on probation for two years with respect to the fifth-degree
offenses and ten years with respect to the third-degree possession. Among other conditions
of probation, Bondeson was required to complete chemical-dependency treatment.
In December 2017, the Ramsey Coun ty Community Corrections Department filed
a probation-violation report, a lleging that Bondeson had been c harged in several crimes

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and had “failed to enter and complete a treatment program.” Bon deson turned herself in
and was held in custody, but she denied the criminal allegation s. She was eventually
released pending resolution of the criminal charges, with the r equirement that she enter a
treatment program by May 4, 2018.
Bondeson did enter a treatment program but was discharged on Ma y 8, 2018. A
warrant was issued for her arrest. The court withdrew that warrant when, two days later, a
bed at another treatment program became available and Bondeson entered that program. In
early July, probation officers learned that Bondeson had been discharged from the second
treatment program. She was then arrested for that alleged probation violation. On July 20,
2018, Bondeson appeared before t he district court and admitted that she had failed to
complete treatment, in violati on of the terms of her probation. She offered no excuse for
the failure. The district court revoked Bondeson’s probation an d ordered execution of all
three sentences, to be served concurrently.
D E C I S I O N
I. The district court did not abuse its discretion in revoking Bondeson’s
probation.

A district court must make three findings before revoking probation. State v. Austin,
295 N.W.2d 246, 250 (Minn. 1980). In particular, it must “1) de signate the specific
condition or conditions that were violated; 2) find that the vi olation was intentional or
inexcusable; and 3) find that need for confinement outweighs th e policies favoring
probation.” Id. The fact of a violation must be proved by clear and convincing evidence.
Minn. R. Crim. P. 27.04, subd. 2(1)(c); State v. Cottew, 746 N.W.2d 632, 636 (Minn. 2008).

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District courts have broad discretion to determine whether there is “sufficient evidence to
revoke probation.” State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005) (quoting Austin,
295 N.W.2d at 249-50). We review the district court’s findings for an abuse of discretion.
Id.
Bondeson argues that the district court abused its discretion i n its identification of
the condition or conditions of pr obation violated and by conclu ding that the policies
favoring probation were outweighed by the need for confinement.
A. Specific conditions violated

As the state acknowledges, Bon deson admitted to and was found t o have violated
only one condition of probation—the requirement that she complete a treatment program.
Bondeson argues that the district court erred in its findings b y stating that the “ violations
[were] intentional, without cause, justification, or legal excu se” and that “not sending
Ms. Bondeson to prison at this point would unduly depreciate the seriousness of all of the
violations.” (Emphasis added.)
Assuming, without deciding, that Bondeson is correct and that t he district court’s
reference to “violations” refers to other conduct not found by clear and convincing
evidence, Bondeson does not clearly explain why that fact entit les her to reversal. Only a
single violation is require d to satisfy the first Austin finding. See Austin, 295 N.W.2d at
250 (stating that the first finding the court must make is “the specific condition or
conditions” the defendant violated). And there is no dispute that the district court correctly
found Bondeson’s failure to complete treatment to be a violation. Thus, even if the district

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court did erroneously refer to additional “violations,” that error is harmless as to the first
Austin finding, which is indisputably satisfied.
B. Intent or lack of excuse

Any error in referring to other “violations” was equally harmle ss as to the second
Austin finding. The court found “that the violations [were] intention al, without cause,
justification, or legal excuse.” There is no dispute that Bonde son’s failure to complete a
treatment program was intentional or inexcusable. See id. (defining the second required
finding). Thus, even if the district court erroneously found other conduct to be intentional
or inexcusable, that error is immaterial as to the second requi red finding because there is
no dispute that it was properly made as to Bondeson’s failure t o complete a treatment
program.
C. The need for confinement versus the policies favoring probat ion

In evaluating the third required finding—whether the need for c onfinement
outweighs the policies favoring probation—a district court should consider 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 (quotation om itted). When considering these three sub-
factors of the third required finding, the district court may consider a variety of information.
Austin, 295 N.W.2d at 251 (instructing district courts to consider “the original offense and

6
the intervening conduct of the offender” (quotation omitted)). The nature of the violations
themselves and whether they are a single isolated incident or a significant violation are
relevant considerations. See State v. Rottelo , 798 N.W.2d 92, 95 (Minn. App. 2011)
(holding that several years of failure to maintain contact with probation justified
revocation, but distinguishing a hypothetical single missed mee ting with a probation
officer), review denied (Minn. July 19, 2011).
Bondeson contends that the district court over-weighed the seri ousness of her
violation by including the criminal charges against her in its analysis even though it did not
find that the charges had been proved by clear and convincing evidence and Bondeson did
not admit to them. Her argument is unpersuasive. Our review of the record leads us to
conclude that the district court’s findings on all three sub-fa ctors are fully supported by
Bondeson’s failure to complete necessary chemical-dependency treatment and her proven
antisocial behavior when using drugs.
1. Need to protect the public from further criminal activity

The district court found that Bondeson is “a danger to the publ ic when [she is] out
on the street.” Bondeson contends that this finding was erroneo us because, after her first
failure to complete treatment, the probation officer recommende d only 365 days in jail,
but, after her second treatment failure, the probation officer recommended revocation.
Bondeson argues that there was no difference between the two in stances of failure to
complete treatment and that the second failure therefore does not support the district court’s
conclusion that there was a need to protect the public from future criminal activity.

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The state, on the other hand, arg ues that the district court’s finding on the need to
protect the public from Bondeson is supported not just by Bondeson’s failure to complete
treatment but also by “the newly acquired criminal charges, whi c h a l l e g e c r i m e s o f
violence.” The only case the state cites to argue that this court may consider those unproved
crimes is State v. Bollin, 670 N.W.2d 605, 607-08 (Minn. App. 2003), review denied (Minn.
Jan. 20, 2004), a case that relies on State v. Hlavac, 540 N.W.2d 551, 552-53 (Minn. App.
1995). Bollin purports to allow this court to “affirm a probation revocation if the factors
are supported by sufficient ev idence in the record.” 670 N.W.2d at 607-08. But the point
of law Bollin relies on from Hlavac was expressly overruled in Modtland. 695 N.W.2d at
606 (“In the 25 years since Austin, our decision has been interpreted to allow for a
‘sufficient evidence exception’ to the requirement that courts make the requisite three
findings. While this reading of Austin has taken hold in the lower courts, we do not believe
such an interpretation can be reconciled with the language of Austin itself.” (citations
omitted)). The unproved allegations of Bondeson’s new crimes ca nnot be considered as
support for the third Austin finding.
Despite the failure of the state’s argument, the district court’s finding on the need to
protect the public is nevertheless supported by the record. The court told Bondeson that
prison “protects society from wh o you are when you’re . . . usi ng and out there.” The
original offenses—which Bondeson does not dispute can be considered—were committed
while Bondeson was using drugs a nd involved drug possession. Th e fact that Bondeson
failed twice, in short succession, to complete treatment suggests that treatment is unlikely
to succeed if she rema ins on probation. The district court did not abuse its discretion by

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concluding that Bondeson’s repeated failure to complete treatment means that she is more
likely to be a threat to the public if she is not confined.
2. Need for correctional treatment that will be most effectivel y
provided by confinement

The district court also found that Bondeson was “in need of correctional treatment,”
noting that it would recommend “boot camp,” a prison program ai med at rehabilitation.
Bondeson argues that this finding was erroneous because there w as no evidence that
Bondeson would be eligible for boot camp or would be allowed to participate in chemical-
dependency programming while in prison.
But Bondeson’s repeated failures at treatment out of prison wer e sufficient to
demonstrate to the district court that out-of-prison treatment will not succeed. Even if the
district court could not be certain that Bondeson would be able to enter boot camp or
otherwise receive treatment wh ile in prison, it did not abuse i ts discretion by concluding
that the possibility of in-prison treatment was a better option for “break[ing] her of this
cycle” than further attempts at in-community treatment.
3. Undue depreciation of the se riousness of the violation

Finally, Bondeson argues that the district court’s decision to revoke her stay was a
“reflexive reaction” rather than a judgment that her conduct “d emonstrates that . . . she
cannot be counted on to avoid antisocial activity,” citing United States v. Reed, 573 F.2d
1020, 1024 (8th Cir. 1978) (quotation omitted). 1 She argues that the district court was

1 Although Bondeson cites federal caselaw for this proposition, her statement of the law is
supported by both Austin, 295 N.W.2d at 251, and Modtland, 695 N.W.2d at 608. Thus, it
is an accurate statement of the law in Minnesota.

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reacting reflexively to her family history2 and to her anger about her childhood, rather than
considering whether it would depr eciate the seriousness of the violation not to revoke
probation.
However, the district court’s comments do reflect concern for the seriousness of the
violation. The court referred ba ck to its original finding that Bondeson was amenable to
probation, a finding that was supported by the court’s conclusion that treatment for mental
health and chemical dependency issues would be better in the co mmunity than in prison.
But Bondeson’s repeated failure to complete treatment in the co mmunity refuted that
belief. Because the possibility of non-prison treatment was the reason for probation in the
first place, the failure of that treatment is a serious probation violation that would be unduly
depreciated if it was overlooked. Thus, the district court did not abuse its discretion in
analyzing the third sub-factor.
In sum, the district court did not abuse its discretion by concluding that each of the
findings required by Austin supported revocation of Bondeson’s probation.
II. The district court erred in sentencing Bondeson.

The parties agree that the district court committed two errors in sentencing
Bondeson: first, it sentenced her on both counts of controlled- substance possession even
though they arose out of a single behavioral incident; and, second, it sentenced her assault
conviction before it sentenced her possession conviction, even though the possession

2 In the initial plea colloquy, it was revealed that Bondeson had pleaded guilty in front of
the same judge in the past, and that the judge had represented Bondeson’s mother at some
point before becoming a judge.

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occurred before the assault. A defendant may challenge a stayed sentence after probation
is revoked and the sentence is executed. State v. Fields, 416 N.W.2d 734, 736 (Minn. 1987).
A. Sentencing on both counts of c ontrolled-substance possession

The district court sentenced Bondeson for both the third-degree controlled-
substance crime and the fifth-degree controlled-substance crime. Those crimes were based
on Bondeson’s possession of 5.8 grams of cocaine and 1.06 grams of methamphetamine,
respectively.
Multiple punishment is generally prohibited for crimes arising out of a single
behavioral incident, subject to certain exceptions. Minn. Stat. § 609.035, subd. 1 (2014)
(“[I]f a person’s conduct constitutes more than one offense . . . , the person may be punished
for only one of the offenses . . . .”); State v. Bookwalter, 541 N.W.2d 290, 293-94 (Minn.
1995) (using the phrase “single behavioral incident” to explain the rule of section 609.035).
Whether crimes arise from a single behavioral incident is determined by whether the crimes
occur “at substantially the same time and place and [are] motiv ated by a single criminal
objective.” State v. Jones , 848 N.W.2d 528, 533 (Minn. 2014). “[P]ossession of two
controlled substances at the same time and place, with no disce rnible criminal objective
other than personal use, bars the imposition of separate senten ces.” State v. Reese , 446
N.W.2d 173, 180 (Minn. App. 1989) (citing State v. Zimmerman , 352 N.W.2d 452, 455
(Minn. App. 1984)), review denied (Minn. Nov. 15, 1989).
The district court here correctly noted that the two possession charges arose out of
the same behavioral in cident: Bondeson possessed the substances at the same time and
place, and there was no suggesti on she had any objective other than personal use.

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Nonetheless, the district court sentenced the convictions separ ately. This was error.
Bondeson’s simultaneous possession of cocaine and methamphetamine was, as the district
court found, a single behavioral incident, and multiple punishment was prohibited. Id. We
therefore reverse Bondeson’s sentence for fifth-degree possession of a controlled substance
and remand to the district court t o c o r r e c t t h e w a r r a n t o f c o m mitment to vacate that
sentence.
B. Sentencing the fifth-degree assault offense before the possession offense

The district court sentenced Bondeson for the fifth-degree assa ult offense before
sentencing her for the possession offense. When sentences for multiple crimes not arising
from the same behavioral incident are imposed on the same day, convictions underlying
earlier sentences are added to the defendant’s criminal-history score for subsequent
sentences. State v. Williams, 771 N.W.2d 514, 521 (Minn. 2009). This is referred to as the
“Hernandez method.” See id. “Multiple offenses sentenced a t the same time before the
same court must be sentenced in the order in which they occurred.” Minn. Sent. Guidelines
2.B.1.e (2015). At sentencing, the state bears the burden of proving “that a prior conviction
qualifies for inclusion within the criminal-history score.” Williams v. State , 910 N.W.2d
736, 740 (Minn. 2018).
Here, there is no dispute that the fifth-degree assault and the possession offense did
n o t a r i s e f r o m t h e s a m e b e h a v i o r a l i n c i d e n t — t h e o f f e n s e s w e r e motivated by different
criminal objectives, see Jones, 848 N.W.2d at 533—and were subject to separate sentences.
The district court sentenced th e assault first, and then applie d the Hernandez method,
increasing Bondeson’s criminal-his tory score when sentencing he r for third-degree

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possession of a controlled substance. But the state now concede s that Bondeson’s
possession offense occurred before her assault offense, and the record supports that
chronology. Bondeson should have been sentenced first for the t hird-degree possession
offense and second for the assault. We therefore reverse and re mand for resentencing
consistent with this opinion, with the limitation that the new sentence may not exceed the
original sentence. See State v. Prudhomme , 228 N.W.2d 243, 246 (Minn. 1975) (holding
that a district court, when resentencing a defendant, may not “increase the penalty for any
of the offenses on which it will sentence defendant”).
Affirmed in part, reversed in part, and remanded.