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This opinion will be unpublished and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
A19-0096

State of Minnesota,
Respondent,

vs.

Nicholas Ivan Dahl,
Appellant.

Filed October 7, 2019
Affirmed
Jesson, Judge

Lake of the Woods County District Court
File No. 39-K9-03-000090

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

James Austad, Lake of the Woods County Attorney, Baudette, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkm an, Presiding Judge; Jesson, J udge; and
Bratvold, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Nicholas Ivan Dahl pleaded guilty to one count of fi rst-degree driving
while intoxicated (DWI) pursuant to a plea agreement. In accor dance with the plea
agreement, Dahl received a stayed sentence and seven years of p robation. After multiple

2
violations, the district court revoked Dahl’s probation. Dahl appeals, challenging the
revocation and his sentence. Because the district court made adequate findings supporting
the revocation of Dahl’s probation and because Dahl has not dem onstrated that his
criminal-history score is incorrect, we affirm.
FACTS
I n 2 0 0 3 , t h e s t a t e c h a r g e d a p p e l l ant Nicholas Ivan Dahl with th ree offenses
stemming from driving while intoxicated. Dahl missed his sched uled trial date, and a
warrant was issued for his arrest.
Dahl remained on warrant statu s until August 2015 when he turne d himself in to
authorities. Pursuant to a plea agreement, Dahl pleaded guilty to first-degree driving while
intoxicated in exchange for dismissal of the other two charges and a downward
dispositional departure to proba tion and participation in subst ance abuse treatment court.
A t t h e p l e a h e a r i n g , t h e s t a t e e x p l a i n e d t h a t t h e p a r t i e s w e r e unsure of Dahl’s
criminal-history score, and that his presentence investigation was “probably gonna have a
lot of leg work due to the unique circumstances of his case.” The presentence investigation
report indicated that Dahl’s criminal-history score was five, r esulting in a presumptive
sentence duration of 66 months. Three of Dahl’s five criminal-history points resulted from
three burglary convictions from 1995. All three burglaries occurred on the same day.
The district court sentenced Dahl to 66 months in prison, but s tayed the execution
of the sentence. Dahl was placed on supervised probation for s even years and ordered to
complete the Borderland Substance Abuse Court Program. At sent encing, Dahl did not

3
object to the calculation of his criminal-history score or his 66-month prison sentence. And
the district court did not issue any findings regarding the three burglary convictions.
Over the next few years, Dahl violated his probation six times. His probation
violations generally stemmed f rom his inability to remain law a biding and abstain from
using alcohol and controlled subs tances. Although the district court imposed different
penalties for each violation, it reinstated Dahl on probation each time.
In July 2018, police arrested Dahl for his seventh probation vi olation. The state
alleged that an officer saw Dahl under the influence of alcohol and attempted to arrest him.
Dahl resisted and refused to submit to a breath test or provide a u r i n e s a m p l e . A t a
probation revocation hearing, Dahl admitted that he used alcohol and failed to submit to a
urinalysis in violation of his probation. Dahl requested that the district court allow him to
enter a chemical-dependency program. But the state requested e xecution of Dahl’s
66-month sentence. Because the p arties disagreed, the matter w as scheduled for a
contested hearing.
At that hearing, the state argued that Dahl had exhausted community resources but
still continued to use intoxican ts and should be committed to p rison. Dahl’s probation
agent stated that she did not support Dahl continuing on probation. And the state asserted
that Dahl could complete treatment while incarcerated. But Dahl argued that he should be
permitted to remain on probation, contending that he had never been given the opportunity
to complete a long-term treatment program, and that he would benefit from such a program.
The district court revoked Dahl’s probation. In its written or der, the district court
found that, despite several opportunities on probation, Dahl co ntinued to incur violations

4
that were both intentional and inexcusable. Further, the district court determined Dahl was
not amenable to supervision and that, because Dahl continued to abuse intoxicants despite
extensive chemical-dependency programming in the community, the need for confinement
outweighed the policies favoring probation. Accordingly, the d istrict court executed
Dahl’s 66-month sentence. Dahl appeals.
D E C I S I O N
Dahl raises two arguments in this appeal. First, Dahl challenges the district court’s
decision to revoke his probation, arguing he was amenable to treatment in the community
because he had been accepted into his first long-term inpatient treatment program. Second,
Dahl contends that the district court erroneously included criminal-history points for each
of his three 1995 burglary convictions. We review each argument in turn.
I. The district court did not abuse its discretion when it revoked Dahl’s probation.

The district court has broad discretion in deciding whether sufficient evidence exists
to revoke probation, and we will reverse only if there is a cle ar abuse of that discretion.
State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). When revoking probation, a district
court must: (1) specify the “condition or conditions that were violated; (2) find that the
violation was intentional or ine xcusable; and (3) find that [th e] need for confinement
outweighs the policies favoring probation.” Id. at 250. Collectively, these three factors
are known as the Austin factors. And whether the district court made adequate Austin
findings is a question of law, subject to de novo review. State v. Modtland, 695 N.W.2d
602, 605 (Minn. 2005).

5
Dahl challenges only the third Austin factor: that the need for confinement
outweighs the policies favoring probation. In making this determination, the district court
should consider whether (1) confinement is necessary to protect the public from further
criminal activity, (2) the offender needs correctional treatment that can most effectively be
provided in prison, or (3) reinstating probation would unduly depreciate the seriousness of
the violation. Id.
Here, in carefully constructed and well-reasoned written findi ngs, the district court
determined that the need for confinement outweighs the policies favoring continued
probation because Dahl exhausted the resources available to him and is not amenable to
supervision in the community. In explaining its rationale, the district court stated:
Despite extensive programming for chemical dependency
issues in the community, and approximately two (2) years in
B o r d e r l a n d S u b s t a n c e A b u s e T r e a t m e n t C o u r t , [ D a h l ]
continues to not comply with t he conditions of his treatment
programs and fails to maintain s obriety. Furthermore, [Dahl]
has had repeated probation violations for the same conduct. In
a chemical dependency treatment evaluation in April 2018, he
refused to acknowledge that he has a problem with alcohol and
abusing over the counter medicat ion. He further reported to
the evaluator that he had been sober since January 2015 despite
repeated use violations. He was found to not be amenable to
further treatment at that time. Now that he is facing execution
o f h i s s e n t e n c e , h e i s a r g u ing for a long term treatment
program. The [c]ourt finds that a long term treatment would
benefit him but in a custodial s etting as public safety require s
the same.

The record supports this determ ination. Despite participating in many treatment
programs—including outpatient, inpatient, and relapse preventio n programs—and
receiving the support provided b y the drug court program, Dahl continued to use alcohol

6
and mood-altering substances in violation of the conditions of probation. He failed drug
tests and admitted to abusing coug h medicine to the point of ps ychosis. And the district
court concluded that a treatment program in a custodial setting would benefit Dahl. Each
of these findings indicate the district court’s proper consideration of the third Austin factor
and lead us to conclude that the district court did not abuse its discretion by revoking Dahl’s
probation.
Still, Dahl contends that he does not need correctional treatm ent, noting that the
“purpose of probation is rehabilitation and revocation should be used only as a last resort
when treatment has failed.” Austin, 295 N.W.2d at 250. According to Dahl, he should
have been given an opportunity to complete the long-term inpatient treatment program to
which he was accepted. But Dahl has been given the opportunity to complete numerous
treatment programs. And the reco rd indicates that despite thes e opportunities, Dahl
continued to abuse alcohol and mood-altering substances. Based on these facts, the district
court did not abuse its discretion by determining that Dahl wou ld be better served by
completing treatment while incarcerated.
In sum, the district court fully analyzed all three Austin factors, including the
standards used to determine whet her the need for confinement ou tweighs the policies
favoring remaining on probation. And the record supports the d istrict court’s findings.
Therefore, we conclude that the district court did not abuse it s discretion by revoking
Dahl’s probation.

7
II. Dahl has not demonstrated that his criminal-history score is incorrect.

Dahl also challenges his sentence, arguing that it is based on an incorrect
criminal-history score. According to Dahl, at sentencing, the state did not prove by a
preponderance of the evidence th at his three burglary convictio ns from 1995 arose from
separate behavioral incidents. Although Dahl did not object to the calculation of his
criminal-history score at trial, the supreme court has conclude d that a criminal defendant
cannot forfeit or waive review of his criminal-history score calculation.1 State v. Maurstad,
733 N.W.2d 141, 147-48 (Minn. 2007). “[W]e will not reverse th e district court’s
determination of a defendant’s c riminal history score absent an abuse of discretion.”
State v. Stillday , 646 N.W.2d 557, 561 (Minn. App. 2002), review denied (Minn.
Aug. 20, 2002).
A defendant’s criminal-history s core includes points for prior felony convictions.
State v. Oberg , 627 N.W.2d 721, 723 (Minn. App. 2001), review denied
(Minn. Aug. 22, 2001). At senten c i ng, t he s t a t e be a r s t he b ur de n “ t o s h ow t ha t a pr i or
conviction qualifies for inclusi on within the criminal-history score” and that the
criminal-history score is calculated correctly. Williams v. State , 910 N.W.2d 736,
740 (Minn. 2018). But, when a defendant files a motion to correct an illegal sentence under
rule 27.03, subdivision 9, of the Minnesota Rules of Criminal Procedure after the time for

1 The state did not file a brief in this appeal. As such, the s tate did not argue that Dahl’s
challenge to his sentence is not appropriately before us as par t of a probation-revocation
appeal based on State v. Fields, 416 N.W.2d 734, 736 (Minn. 1987). We therefore do not
reject Dahl’s challenge to his se ntence on that basis, though w e note that our reading of
Fields suggests that Dahl should have p resented his sentencing challen ge to the district
court at the probation-revocation hearing. See 416 N.W.2d at 735.

8
a direct appeal has passed, the defendant bears the burden of proving that his
criminal-history score is incorrect. Id. at 743.
Similarly, in the context of this probation-revocation appeal, it is Dahl’s burden to
prove his criminal-history score is incorrect. Id. In Williams, the supreme court reasoned
that a defendant bears the burden of proof in a collateral atta ck under the postconviction
statute, making it logical that a defendant also bear the burden of proof when challenging
a sentence based on an incorrect criminal-history score through a motion under rule 27.03,
subdivision 9. See id. at 742 (stating that “we can ascertain no reason to have a different
burden of proof apply based only on how a challenge to a senten ce was captioned”).
Likewise, we conclude that becaus e Dahl would bear the burden t o prove his
criminal-history score is incorrect if he challenged his sentence through other mechanisms,
he bears that same burden of proof when challenging his crimina l-history score as part of
his probation-revocation appeal.2
Based on the record before us, Dahl has not met his burden of d emonstrating that
his criminal-history score is in correct. Although Dahl alleges that his three burglary
convictions may have stemmed from a single behavioral incident, there is nothing in the
record to support this assertion. Dahl has not provided any documentation demonstrating
the circumstances surrounding his roughly 24-year-old convictions. And because Dahl did
not raise his challenge to the district court, we do not have h is testimony or any district

2 Dahl’s argument regarding his criminal-history score focuses on the state’s alleged failure
to prove Dahl’s criminal-history s c o r e a t s e n t e n c i n g . B u t t h e se arguments are not
persuasive because we conclude that in this appeal, it is Dahl’s burden to demonstrate that
his criminal-history score is incorrect.

9
court findings to review. Accor dingly, because Dahl has only p resented us with
unsupported assertions, we conclude that Dahl has not met his b urden of demonstrating
that his criminal-history score is incorrect. As such, we affirm Dahl’s sentence.
Affirmed.