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This opinion will be unpublished and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
A18-2056

State of Minnesota,
Respondent,

vs.

Drey Lamar Lee,
Appellant.

Filed June 17, 2019
Affirmed
Larkin, Judge

Ramsey County District Court
File No. 62-CR-17-2364

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Ross, Judge; and Bratvold,
Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges the district court’s order revoking his probation for first -
degree criminal sexual conduct after he left the S tate of Minnesota for the second time in
violation of probation and pleaded guilty to a new felony-level offense. Because the district
court did not abuse its discretion by not giving appellant a third opportunity on probation,
we affirm.
FACTS
On April 4, 2017, respondent State of Minnesota charged appellant Drey Lamar Lee
with two counts of first -degree criminal sexual conduct and one count of kidnapping,
alleging that Lee approached a woman at a bus stop in St. Paul, pulled her into a vehicle,
and sexually assaulted her at gunpoint. Lee pleaded guilty to one count of first -degree
criminal sexual conduct pursuant to North Carolina v. Alford , 400 U.S. 25, 37, 91 S. Ct.
160, 167 (1970) ,1 in exchange for the state’s agreement to dismiss the remain ing counts
and to recommend that Lee receive a probationary sentence . The district court accepted
Lee’s guilty plea.
On October 23, 2017, Lee appeared for sentencing and asked the district court to
follow the plea agreement and place him on probation. The district court expressed
concerns about the plea agreement, stating,

1 A defendant “may plead guilty to an offense, even though the defendant maintains his or
her innocence, if the defendant reasonably believes, and the record establishes, the state
has sufficient evidence to obtain a conviction.” State v. Ecker , 524 N.W.2d 712, 716
(Minn. 1994) (citing Alford, 400 U.S. at 37, 91 S. Ct. at 167).

3
Well, Mr. Lee, I’m very concerned about . . . placing
you on probation. I’ve had concerns throughout your case,
both that you’re not going to be able to complete the treatment
that I’m going to order, and now I have real concerns that you
may violate the law. I want to be very clear with you, and I am
going to order treatment and order that you follow the law, and
I expect that you comply with those rules.

The district court’s con cerns were based on a psychosexual examination that Lee had
completed and the examiner’s conclusion that Lee is “a danger to the public, especially to
vulnerable adult women.”
After an off-the-record discussion between the attorneys and the district cou rt, the
state and Lee asked the district court to honor the plea agreement. Despite its concerns,
the district court sentenced Lee in accordance with the plea agreement, staying a 144-
month prison term for 30 years and imposing multiple conditions of probation.
On March 8, 2018, Lee’s probation officer filed a probation -violation report,
alleging that Lee had violated the conditions of probation by leaving the state without prior
approval and by failing to keep his probation officer informed of his current address. Lee
admitted the violations. The district court ordered Lee to serve 90 days in jail as a sanction
for his admitted probation violations and continued him on probation.
On June 4, 2018, Lee’s probation officer filed a second probation -violation report,
alleging that Lee had once again violated the conditions of probation by leaving the state
without prior approval, by failing to report his arrest in Wisconsin for disorderly conduct
and criminal damage to property, and by having contact wit h a minor. The state orally
amended the report to allege that Lee violated probation by failing to remain law-abiding
based on Lee’s May 2018 guilty plea to a felony-level offense of failure to register as a

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predatory offender. Lee admitted the violation s, and the district court set a date for a
disposition hearing.
At the disposition hearing, a licensed social worker testified on Lee’s behalf. She
informed the district court that she had researched sex -offender programming that might
be available to Lee in the community. One such program, Project Pathfinder, worked with
clients who deny their offenses. Based on her review of Lee’s medical records, the social
worker informed the district court that Lee “functions in the borderline intellectual
functioning range,” had a brain tumor removed in 2006, and subsequently suffered from
seizures. Lee is also hearing impaired.
The social worker testified that she was “concerned that due to all of [Lee’s]
medical, mental health and cognitive issues,” he would be “extremely vulnerable” in prison
and would have difficulty participating in programming there. For example, she testified
that while Lee was in jail for his first probation violation, he did not receive his seizure
medication because he could not hear announcements indicating that medications were
being dispensed. The social worker described several services that could benefit Lee if he
were to remain in the community. She testified that she believed Lee was capable of
fulfilling the requirements of his probation, with some assistance for his “constellation of
impairments and challenges.”
Lee submitted a copy of his probation officer’s notes and a report from the La Crosse
County Human Services Department regarding his out-of-state residence and contact with
a minor. The state did not present any evidence or testimony. Lee’s probation officer
addressed the district court, noting that during the first probation-violation hearing earlier

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that year, after Lee had violated his probation by leaving the state without prior approval,
the district court warned Lee “on numerous occasions” not to do so again. Because Lee
had violated probation a second time by leaving the state without approval, committed new
crimes, and had contact with a minor, the probation officer concluded that Lee was “not
amenable to probation” and recommended execution of Lee’s stayed sentence. The state
argued for execution of the sentence, citing Lee’s repeated violations and the fact that he
had been living with a vulnerable adult and a minor, both of which violated conditions of
his probation. The state argued that “community supervision [was] not working” and that
“the need for confinement . . . outweigh[ed] the policies favoring probation in order to
protect the public.”
Lee characterized his actions , other than his recent felony predatory -offender-
registration conviction, as “technical violations,” emphasized his medical and mental -
health issues, and argued that the probation department had not adequately worked to
provide him with necessary services. Lee asked the district court to continue his probation
because he was “in dire need of services that can happen on a community level.”
The district court found that Lee had violated specific conditions of probation and
that the violations were intentional or inexcusable. The district court also found that the
need for Lee’s confinement outweighed the policies favoring probation. The district court
revoked Lee’s probation and executed his 144-month sentence. Lee appeals.
D E C I S I O N
The district court has “broad discretion in determining if there is sufficient evidence
to revoke probation and should be reversed only if there is a clear abuse of that discretion.”

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State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). “The decision to revoke cannot be
a reflexive reaction to an accumulation of technical violations but requires a showing that
the offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial
activity.” Id. at 251 (quotation omitted).
Before a district court may revoke a defendant ’s probation, it “must (1) designate
the specific condition or conditions that were violated; (2) find that the violation was
intentional or inexcusable; and (3) find that need for confinement outweighs the policies
favoring probation.” Id. at 250. In assessing the third Austin factor, the district court should
consider whether “confinement is necessary to protect the public from further criminal
activity by the offender,” whether “the offender is in need of correctional treatment which
can most effectively be provided if he is confined,” and whether “it would unduly
depreciate the seriousness of the violation if probation were not revoked.” Id. at 251
(quotation omitted).
Lee challenges the district court’s third Austin finding, arguing that “[t]he need for
confinement did not outweigh the policies favoring probation.” Lee argues that “[i]t was
error to conclude that [he] failed to avail himself [of] services never offered to him as the
basis to revoke his probation” and that the district court’s decision to revoke “undermine[d]
the policies favoring probation because it weighed more -heavily the repetitious nature of
[his] technical violations by impermissibly crossing an invisible line,” the state line, “over
the availability of programming in the community.”
As to the third Austin factor, the district court reasoned that it had “deep concerns
about the probationary services that Mr. Lee received,” noting that although the

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psychosexual examination found that Lee was at a high risk to re-offend and recommended
long-term treatment in a secure setting, Lee h ad yet to enter treatment. But the district
court noted that probation had difficulty providing the recommended services i n part
because Lee had twice left the state in violation of his probation. The district court also
noted that after Lee’s first violation for leaving the state, he was told not to leave the state
again because he could not receive services if he did. Non etheless, Lee left the state a
second time.
Moreover, Lee w as charged with and convicted of a felony offense for failing to
register as a predatory offender. He was also charged with two misdemeanor offenses.
The district court understandably concluded that confinement was necessary to protect the
public from further criminal activity by Lee, that Lee could more effectively be provided
with treatment if confined, and that Lee’s violations were serious, and not “technical,”
because he not only lef t the state without approval but also “set up residence in another
state after being told not to, thus making himself unavailable for probationary services,
which he so desperately needs.”
The district court’s reasoning is sound. The district court’s decision to revoke Lee’s
probation was not a reflexive reaction to a technical violation. It was a well -reasoned
decision resulting from Lee’s rep eated failure to remain in the S tate of Minnesota where
he could be supervised and receive probationary services.
Lee complains that the probation department did not do enough to set up services
on his behalf in Minnesota. But as the district court noted, it was difficult for probation to
provide services to Lee when he left the state twice and “set up residence” in another state

8
the second time, without notifying probation. The district court was not required to give
Lee a third opportunity to comply with probation. On this record, the district court did not
abuse its discretion by revoking Lee’s probation.
Affirmed.