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This opinion will be unpublished and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
A18-1757

State of Minnesota,
Respondent,

vs.

Shane Douglas Wellman,
Appellant.

Filed July 1, 2019
Affirmed
Cochran, Judge

Cottonwood County District Court
File No. 17-CR-16-80

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

Nicholas Anton Anderson, Cottonwood County Attorney, Windom, Mi nnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Presiding Chief Judge; Flore y, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant Shane Douglas Wellman appeals the district court’s de cision to revoke
his probation, arguing that the evidence in the record does not s h o w t h a t t h e n e e d f o r

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confinement outweighs the policies favoring probation. Because the evidence in the record
supports the district court’s finding and the district court di d not abuse its discretion in
revoking appellant’s probation, we affirm.
FACTS
On February 26, 2016, Wellman made a threat to his father. At the time, he was on
probation for a drug offense. Wellman was ultimately charged with and pleaded guilty to
threats of violence under Minn. Stat. § 609.713, subd. 1 (2014). The Cottonwood County
District Court stayed imposition of Wellman’s sentence and plac ed him on probation for
five years, pursuant to a plea negotiation.
On February 28, 2018, Wellman’s probation agent filed a probation-violation report
that alleged that Wellman was in violation of his probation con ditions. Wellman moved
out of a sober living house that his treatment program recommen ded and failed to notify
the agent that he changed his address when he moved out. The a gent noted in the report
that she had called the sober hou se manager to ask that Wellman be tested for substance
use, and the manager said that Wellman had moved out two months prior after refusing to
take a drug test. The agent alleged that Wellman violated two probation conditions: the
condition that he follow all recommendations of his treatment program, and the condition
that he notify the probation agent of any address change. Well man’s whereabouts were
unknown, and the district court issued a warrant for his arrest.
Wellman was eventually apprehended, and the district court conducted a contested
probation-violation hearing on April 10, 2018. The district court found that the state failed
to prove that Wellman did not follow all recommendations of his treatment program

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because the treatment program did not expressly recommend or require that Wellman live
at the sober house after completing treatment. The district co urt found, however, that
Wellman did violate the condition that he notify his probation agent of any address change.
The district court found that We llman’s violation was intention al and inexcusable, but it
also found that the need for confinement did not outweigh the policies favoring probation.
The district court reinstated probation, but told Wellman, “I a m going to add some
additional conditions that are very specific to you and the testimony that I have heard here
today.” The district court imposed conditions that required Wellman to notify his probation
agent of his new address within 72 hours and that Wellman had t o check in with his
probation agent on a weekly basis. The district court said to Wellman:
[I]t’s going to be very evident very quickly whether or not you
are going to comply and be successful on probation or we will
have you back here fairly soon.

This is your first violation and I’m giving you a bit of a
break in this case, but you—you didn’t test positive and you
were homeless. So, those are factors that—that weigh in favor
of giving you another chance.

. . . .

All right. Well, there’s another opportunity, but you are
going to have to work at it and you are going to have to take
charge of your own life. You’ve been kind of passive thus far.
That doesn’t bode well. You need to—you need to be an adult
now and take charge of your life and we will see whether you
can do that.

Approximately three months later, on July 12, 2018, the probati on agent filed a
second violation report that alle ged that Wellman failed to con tact his agent as directed.
The agent noted on the report that Wellman had “not adjusted we ll to supervision” since

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the prior violation. The agent indicated that she attempted to transfer Wellman’s
supervision from Cottonwood County to Olmsted County because Wellman had moved to
the Rochester area, but Wellman failed to report to his appoint ments, did not respond to
telephone contact from Olmsted County, and also did not respond to the agent’s attempts
to call and text him. The district court issued a warrant for Wellman’s arrest.
Wellman was arrested pursuant to the warrant on or about July 2 8, 2018. Three
days later, the district court held a bail hearing. It release d Wellman from jail on the
condition that he report to Olms ted County probati on by August 1 and appear for a
probation violation hearing on August 2. Wellman checked in wi th Olmstead County
probation as directed.
Wellman appeared for the conteste d probation violation hearing. At the hearing,
the state orally amended the violation report to include an allegation that Wellman violated
the no-drug-use condition of his probation. The state had lear ned that Wellman tested
positive for methamphetamine after he was arrested on July 28. The court received the test
results at the hearing. Wellman’s probation agent also testifi ed that Wellman’s father
called 911 three times on July 31 as he and Wellman drove to Ro chester after the bail
hearing. The agent also testifi ed that she learned from police that Wellman told the
responding officers that he had used methamphetamine recently.
Wellman admitted that he failed t o give probation his updated a ddress and phone
number. Despite the positive test result, he denied that he had used methamphetamine. He
also denied telling the responding officers that he had used methamphetamine recently.

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The district court found that Wellman violated two probation co nditions: the
no-drug-use condition and the condition that he maintain contact with his probation agent.
It found that Wellman’s violations were intentional and inexcus able and that the need for
confinement outweighs the policies favoring probation.
In discussing the failure-to-maintain-contact violation, the district court stated:
[Wellman] was ordered to comply with probation and to
contact his probation agent as directed. [Wellman] has failed
to do that again. The court would find that this is the second
time [Wellman] has been in court for a same or similar type of
violation. The last time we were in court and this was brought
up by [Wellman] the last time we were in court several months
ago, [Wellman] was again accuse d of not keeping in contact
with his probation and his whereabouts were unknown for two
months. We are again back here for a same or similar violation.
[Wellman] failed to report to Olmsted County to submit to
probation and to cooperate with the transfer of his probation
and failed to keep in contact with his probation agent.

And, in finding that the need fo r confinement outweighs the pol icies favoring
probation, the district court explained:
In consideration of the history of this case, of the type
of offenses and violations that [Wellman] has committed and
the fact that he has essentially b een unsupervised for the last
several months for this felony offense, I do find that the need
for confinement outweighs the policies favoring probation.

[Wellman] was given an o pportunity to submit to
probation at the beginning of this case and has demonstrated
consistency in his unwillingne ss to keep in contact with
probation or submit to probationary supervision.

I further find that the use of methamphetamine is a
public safety risk. Again, confinement is necessary to protect
the public from further activ ity—criminal activity by the
offender and it would unduly depreciate the seriousness of the

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violation in consideration of this entire case if probation wer e
not revoked.

The district court revoked Wellman’s stay of imposition, imposed the presumptive
sentence of 21 months and executed the sentence.
Wellman appeals.
D E C I S I O N
Before revoking probation, a district court must “1) designate the specific condition
or conditions that were violated; 2) find that the violation wa s intentional or inexcusable;
and 3) find that need for confinement outweighs the policies favoring probation.” State v.
Austin, 295 N.W.2d 246, 250 (Minn. 1980). Wellman does not challenge the district
court’s findings on the first two prongs: that he violated specific conditions of his probation
and that the violations were intentional. Instead, Wellman arg ues on appeal that the
evidence in the record does not support the district court’s fi nding that the need for
confinement outweighs the polic ies favoring probation. The dis trict court has “broad
discretion in determining if there is sufficient evidence to re voke probation.” Id. at 249.
A reviewing court will reverse a district court’s probation determination only “if there is a
clear abuse of that discretion.” Id. at 249-50.
In determining whether the need for confinement outweighs the p olicies favoring
probation, “district courts must bear in mind that policy consi derations may require that
probation not be revoked even tho ugh the facts may allow it and that the purpose of
probation is rehabilitation.” State v. Modtland , 695 N.W.2d 602, 606 (Minn. 2005)
(quotation omitted). “[R]evocation should be used only as a last resort when treatment has

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failed.” Austin, 295 N.W.2d at 250. “The decision to revoke cannot be a reflexive reaction
to an accumulation of technical violations but requires a showi ng that the offender’s
behavior demonstrates that he or she cannot be counted on to avoid antisocial activity.” Id.
at 251 (quotations omitted). The district court must “balance the probationer’s interest in
freedom and the state’s interest in insuring his rehabilitation and the public safety and base
[its] decisions on sound judgment and not just [its] will.” Modtland, 695 N.W.2d at 607
(quotation omitted). The need for confinement outweighs the policies favoring probation
if “(i) confinement is necessary to protect the public from fur ther 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 depreci ate the seriousness of the
violation if probation were not revoked.” Id. (quoting Austin, 295 N.W.2d at 251).
The district court expressly disc ussed the first and third sub- factors in finding that
the need for confinement outweighs the policies favoring probat ion. It found that
W e l l m a n ’ s m e t h a m p h e t a m i n e u s e p o s e d a p u b l i c s a f e t y r i s k a n d t hat confinement is
necessary to protect the public from further criminal activity. It also found that it would
unduly depreciate the seriousne ss of the violations if probatio n was not revoked.
Moreover, the district court discussed several other factors th at supported its conclusion
that the need for confinement outweighs the policies favoring p robation, notably, (1) the
type of offenses and violations that Wellman had committed, (2) the fact that Wellman had
in effect been unsupervised for several months while he was out of contact with his
probation agent, and (3) the district court’s determination tha t Wellman “demonstrated

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consistency in his unwillingness to keep in contact with probation or submit to probationary
supervision.”
Wellman argues that the evidence does not support the district court’s finding
because there is evidence that he successfully completed the Pathways inpatient treatment
program in February 2017 and h ad only one positive drug test wh ile on probation. He
maintains that his methamphetamine use does not pose a threat to public safety. He asserts
that he immediately remedied his failure to contact Olmsted County probation after he was
released from jail at the bail hearing. Ultimately, he contends that he was largely successful
on probation and that he is not a danger to public safety.
While it is true that Wellman was successful with some aspects of probation, he
accumulated three probation viol ations within five months. As the district court noted,
Wellman’s repeated violations sho w that he is unwilling or unab le to comply with the
conditions of his probation. Wellman did not make contact with Olmsted County until
after he was arrested on the probation violation warrant. And, he tested positive for
methamphetamine in violation of his probation after he was arrested for violating another
provision of his probation. In t h i s c o n t e x t , t h e r e p e a t e d v i o lations support the district
court’s conclusion that it would unduly depreciate the seriousn ess of the violations if
probation was not revoked. And, with regard to Wellman’s drug use violation, this court
has recognized that a district c ourt could properly consider th at an offender’s “continued
[drug] use and involvement with controlled substances is a dang er to the public interest”
that supports a finding that the need for confinement outweighs the policies favoring
probation. State v. Losh, 694 N.W.2d 98, 102 (Minn. App. 2005), aff’d on other grounds,

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721 N.W.2d 886 (Minn. 2006) (affirming the district court’s decision to revoke probation,
in part, because the defendant’s continued use and involvement with controlled substances
posed a danger to the public interest, but the defendant’s drug use also was a contributing
factor to defendant’s underlying conviction). Consequently, we conclude that the evidence
in the record supports the district court’s finding that the ne ed for confinement outweighs
the policies favoring probation.
Moreover, the district court’s decision to revoke Wellman’s pro bation was
consistent with the Minnesota Sen tencing Guidelines. The guide lines provide that
revocation of a stayed sentence i s justified when “the offender continues to violate
conditions of the stay despite t he court’s use of expanded and more onerous conditions.”
Minn. Sent. Guidelines 3.B (Supp . 2017). After Wellman’s first probation violation
hearing, the district court imposed more onerous conditions related to Wellman’s failure to
notify his agent of his address change. Despite the use of exp anded conditions, Wellman
violated probation again in a similar manner just three months later.
The district court acted within its discretion when it found th a t t h e n e e d f o r
confinement outweighs the policies favoring probation. The district court made sufficient
findings, supported by the evidence, to sustain the revocation. We conclude that the district
court’s decision was not a “reflexive reaction” proscribed by Austin, and affirm the district
court’s decision to revoke Wellman’s probation. 295 N.W.2d at 251 (quotation omitted).
Affirmed.