Samuel Wayne Behrens, Jr., Appellant,

This opinion will be unpublished and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
A18-1746

Samuel Wayne Behrens, Jr.,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 20, 2019
Affirmed
Kalitowski, Judge*

Benton County District Court
File No. 05-CR-13-594

Bradford Colbert, Legal Assistance to Minnesota Prisoners, St. Paul, Minnesota (for
appellant)

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

Philip K. Miller, Benton County Attorney, Michael J .G. Schnider, Assistant County
Attorney, Foley, Minnesota (for respondent)

Considered and decided by Slieter, Presiding Judge; Worke, Judge; and Kalitowski,
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
KALITOWSKI, Judge
On appeal from the summary denial of his petition for postconviction relief,
appellant Samuel Wayne Behrens, Jr. argues that the postconviction court erred by
concluding that the revocation of his probation and execution of his prison sentence was
not an abuse of discretion. We affirm.
D E C I S I O N
This court reviews “a postconviction court’s summary denial of a petition for
postconviction relief for an abuse of discretion. ” Andersen v. State, 913 N.W.2d 417, 422
(Minn. 2018). “A postconviction court abuses its discretion when its decision is based on
an erroneous view of the law or is against logic and the facts in the record, or exercises its
discretion in an arbitrary or capricious manner.” Crow v. State, 923 N.W.2d 2, 9, (Minn.
2019) (quotation omitted).
To revoke probation, a district court must identify the specific conditions of
probation that were violated, find that those violations were “intentional or inexcusable,”
and “find that need for confinement outweighs the policies favoring probation.” State v.
Austin, 295 N.W.2d 246, 250 (Minn. 1980) . “[I]n making the three Austin findings, . . .
[district] courts must seek to convey their substantive reason s for revocation and the
evidence relied upon.” State v. Modtland , 695 N.W.2d 602, 608 (Minn. 2005) . Because
revocation of probation is within the broad disc retion of the district court, this court will
not reverse absent a clear abuse of that discretion. Austin, 295 N.W.2d at 249-50.

3
Behrens challenges the third Austin factor, that the need for confinement outweighs
the policies favoring probation. When analyzing this factor, a district court must consider
that, while the facts may permit revocation, the purpose of probation is rehabilitation, and
revocation should be a last resort. Modtland, 695 N.W.2d at 606. The need for confinement
outweighs the policies favoring probation if at least one of the 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 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).
Here, Behrens pleaded guilty to second -degree crim inal sexual conduct in May
2013, and received a stay of imposition, which included 25 years’ probation. After
Behrens’s fifth probation violation,1 the district court imposed a 36-month prison sentence
in August 2016, but stayed execution of that sentence and ordered Behrens to serve 120
days in jail. A few months later, another probation violation report was filed alleging that
Behrens had violated several terms of his probation. Foll owing a contested probation -
violation hearing on December 20, 2017,2 the district court found that there was c lear and
convincing evidence that Behrens violated the conditions of his probation by: (1) using and

1 Behrens’s 2016 violation was dismissed.
2 The district court initially revoked Behrens’s probation and executed the previously
stayed 36 -month p rison sentence after a contested probation-violation hearing on
December 29, 2016. This court subsequently concluded that Behrens was denied his
constitutional right to the effective assistance of counsel, and reversed the revocation and
remanded for a new probation violation hearing. State v. Behrens , No. A17 -0499, 2017
WL 4341816 at *3 (Minn. App. Oct. 2, 2017).

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possessing alcohol; (2) accessing “the intern et without permission from his agent”;
(3) possessing six cell phones, “five of which were capable of internet access ”; and
(4) failing to “attend the intake for his outpatient treatment programming that was
scheduled.”
Behrens does not dispute the distri ct court’s determination that he violated the
conditions of his probation. But Behrens argues that the need for confinement does not
outweigh the policies favoring probation because his “violations were minor, technical
violations.” For example, Behrens asserts that although he “admitted using alcohol,” there
“was no evidence indicating that he had consumed alcohol to the point of being drunk.”
And Behrens asserts that although he “may have accessed the internet, there was no
indication that he was doing anything inappropriate while accessing the internet.” Behrens
contends that because the violations were technical, it would [not] depreciate the
seriousness of the violations if probation were not revoked. We disagree.
Behrens’s condition of probation was not that he refrain from getting drunk, it was
that he refrain from consuming alcohol. Moreover, Behrens did not violate one condition
of his probation, he violated four conditions. And in addition to the violations stemming
from the December 2016 violations report, the record reflects that Behrens has violated
conditions of his probation several times over the course of his probation, including:
(1) failing to abstain from alcohol in 2013; (2) being terminated from sex -offender
treatment in 2015; (3) failing to abstain from the internet and controlled substances in 2016;
(4) failing to cooperate with probation in 2016; and (5) purchasing a phone capable of
accessing the internet in 2016. The district court found:

5
[P]robation has done all it could to try to t reat you and help
you, but you didn’t want to help yourself.
. . . .
You were given multiple, multiple, multiple chances,
probably more than anyone I’ve had before in court, and you
have failed repeatedly with decisions that you’ve made,
decision to access the internet, decisions to use chemicals, and
decisions to thwart your probation.

Although it may have been helpful to have more particularized findings addressing the
subfactors related to whether the need for confinement outweigh s the policies favorin g
probation, the district court’s findings sufficiently demonstrate that revocation of
Behrens’s probation was a last resort and that the need for confinement outweighs the
policies favoring probation. Accordingly, we conclude that the summary denial of
Behrens’s petition for postconviction relief was not an abuse of discretion.
Affirmed.