State of Minnesota v. Cody Lane Pedersen

This opinion will be unpublished and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
A19-1075

State of Minnesota,
Respondent,

vs.

Cody Lane Pedersen,
Appellant.

Filed February 24, 2020
Affirmed
Segal, Judge

Anoka County District Court
File No. 02-CR-17-3117

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

Anthony C. Palumbo, Anoka County Attorney, Kathryn M. Timm, Robert I. Yount,
Assistant County Attorneys, Anoka, Minnesota (for respondent)

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

Considered and decided by Cochran, Presiding Judge; Segal, Judge; and Peterson,
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
SEGAL, Judge
Appellant challenges the revocation of his probation, arguing that the evidence in
the record does not support the district court’s conclusion th at he intentionally or
inexcusably violated the conditions of probation and that the need for confinement does
not outweigh the policies favoring probation. We affirm.
FACTS
In March 2017, the district court issued a domestic -abuse no -contact order
(DANCO) that prohibited appellant Cody Lane Pedersen from contacting K.R. after
Pedersen was arrested and charged with domestic assault of K.R. Pedersen was
incarcerated at the Anoka County jail. While incarcerated, Pedersen called K.R. and
violated the DANCO on numerous occasions. During one phone call, Pedersen allegedly
threatened to kill K.R. As a result, respondent State of Minnesota charged Pedersen with
making threats of violence and violating the DANCO. The state later amended the
complaint to add four additional counts of violating the DANCO.
On February 27, 2018, the parties appeared for a plea hearing. The parties indicated
they had reached a plea agreement in which Pedersen agreed to plead guilty to three counts
of violating the DANCO and the state agreed to dismiss the remaining charges. The state
also agreed to recommend that Pedersen receive a dispositional departure from the
presumptive executed sentence and be placed on probation. The district court accepted the
guilty plea with respect to three counts of violating the DANCO and dismissed the
remaining charges. The district court sentenced Pedersen to three consecutive sentences

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of 36 months, 12 months and a day, and 12 months and a day, but stayed execution of the
sentences. The district court placed Pedersen on probation and ordered him to submit to a
chemical-dependency evaluation, complete domestic -abuse program ming, submit to
urinalysis (UA) as directed, follow t he rules of probation, and remain law -abiding and of
good behavior.
On March 18, 2019, the state filed a probation -violation report. The report alleged
five probation violations: failure to submit to UAs as directed, failure to complete
domestic-abuse programming, failure to remain law-abiding and of good behavior, failure
to abstain from mood-altering chemicals, and failure to contact probation as directed. On
April 16, the district court held a probation -revocation hearing. His probation officer
testified and recommended that Pedersen’s probation be revoked. She stated that , during
her time supervising Pedersen’s probation , Pedersen did not demonstrate amenability to
probation and that his behavior “demonstrated blatant disregard for the Court -ordered
conditions and unwillingness to comply with probation supervision.” She testified that he
missed multiple UAs, failed a recent UA by testing positive for marijuana, frequently
rescheduled meetings, did not complete domestic -abuse programming, and viola ted the
condition that he remain law-abiding and of good behavior because he had an order for
protection (OFP) issued against him in Kanabec County on behalf of his former girlfriend
and their minor children.
The district court revoked Pedersen’s probat ion and executed his sentences. The
district court determined that Pedersen violated the conditions of probation, the violations

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were intentional and inexcusable and the need for confinement outweighed the policies
favoring probation. This appeal follows.
D E C I S I O N
The district court has broad discretion in determining whether sufficient grounds
exist to revoke probation. We will reverse only if there is a clear abuse of that discretion.
State v. Austin , 2 95 N.W. 2d 246, 249 -250 (Minn. 1980). When revoking probation, a
district court must (1) specify the conduct or conditions that the probation er violated ,
(2) find the violation was intentional or inexcusable , and (3) find that the need for
confinement outweighs the policies favoring probation. Id. at 250. The district court’s
decision to revoke probation “cannot be a reflexive reaction to an accumulation of technical
violations but requi res a showing that the offender’ s behavior demonstrates that he . . .
cannot be counted on to avoid antisocial activity.” Id. at 251 (quotations omitted).
When analyzing the third factor , a district court must consider that the purpose of
probation is rehabilitation ; revocation should be a last resort. State v. Modtland , 6 95
N.W.2d 602, 606 (Minn. 2005). The need for confinement outweighs the policies favoring
probation if at least one of three subfactors is 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 tre atment
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.

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Pedersen first argues that the district court’s determination t hat he violated the
conditions of probation was not supported by facts in the record. He argues that the district
court abused its discretion by determining he violated the requirement that he remain of
good behavior based on the issuance of the OFP in Ka nabec County. He acknowledges
that the rules of evidence do not apply in probation -revocation hearings, Minn. R. Evid.
1101(b)(3), and that the OFP was admissible as evidence, but argues that the district court
nonetheless erred in relying on the OFP beca use it is unreliable hearsay. He emphasizes
that the OFP was issued after a default hearing and , thus, claims he did not have the
opportunity to present evidence to refute the allegations. But as the state notes, Pedersen
was served with the notice of he aring for the OFP and made a choice not to attend. The
OFP explicitly states that Pedersen “had reasonable notice and opportunity to be heard.”
Accordingly, Pedersen did have an opportunity to be heard and present evidence, but he
forfeited that opportunity by not attending the hearing.
Pedersen also argues the OFP does not contain a finding that supports the district
court’s determination he committed an assault while on probation. He asserts that “the
only reference to assaultive behavior in the OFP” was the allegation that Pedersen
committed previous acts of violence against the petitioner in 2010 and 2013. A review of
the OFP refutes this argument. Paragraph 4(a) of the OFP contains a finding that acts of
domestic abuse occurred, including “threat s of harm and/or death to petitioner and her
minor children” and “assault and battery against petitioner.” A separate notation is set out
in paragraph 4(c) referring to the prior OFPs and previous acts of violence against the
petitioner. The conclusion i n the order, however, is that Pedersen posed “an imminent

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risk” of causing harm to the petitioner and the minor children and, thus, the OFP does not
appear to have been based solely on the previous assaults.
Pedersen next argues that the district court a bused its discretion by finding that the
probation violations were intentional and inexcusable. He specifically argues that the
record does not support the finding that Pedersen’s failure to complete domestic -abuse
programming was intentional and inexcusa ble. He acknowledges that his “lack of
diligence could be considered inexcusable,” but that “it is not also intentional” because the
“the record is clear that Pedersen was trying to enter domestic abuse counseling” but had
difficulties with his insurance. We disagree. The record amply supports the district court’s
determination that Pedersen both intentionally and inexcusably violated the condition that
he complete domestic-abuse programming as directed by his probation officer.
Pedersen was sentence d on February 27, 2018, and at the time of the probation -
revocation hearing on April 16, 2019, had not even started the mandated domestic-abuse
programming. In April 2018, the probation officer met with Pedersen to discuss the
conditions of his probation and “went step by step with him” through what he needed to
do to enroll in domestic-abuse programming. In August 2018, she contacted him about his
failure to enroll in domestic -abuse programming, gave him another referral sheet, and
directed him to enroll in programming by their September 15 meeting. Pedersen did not
enroll in programming, missed the September 15 meeting, and called his probation officer
two weeks later only to tell her that he still had not enrolled in programming. On October
11, he informed her that he had discovered his medical insurance was expired and that he
was working on getting it reinstated. The record indicates that Pedersen was able to resolve

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the issue with his medical insurance relatively quickly and that, even after it was reinstated,
he failed to begin programming.
The record also contains testimony from the probation officer that Pedersen
displayed a defiant attitude about the domestic-abuse program requirement during his time
on probation. She testified that at his first meeting with her he was “argumentative and
oppositional” about having to complete the probation conditions. She characterized his
attitude and behavior while on probation as demonstrating “blatant disregard for the Court-
ordered conditions and unwillingness to comply with probation supervision.” She also
stated that the condition that he complete domestic -abuse programming was “the subject
of every office visit.” She explicitly di rected him to enroll in the programming by
September 15, 2018, and , at the time of the probation -revocation hearing seven months
later, he had yet to do so. This supports the district court’s determination that Pedersen
both intentionally and inexcusably failed to comply with the requirement that he complete
domestic-abuse programming as directed by probation.
Finally, Pedersen argues that the record does not support the determination that the
need for confinement outweighs the policies favoring probat ion. The district court found
that the need for confinement outweighed the policies favoring probation because
confinement was necessary to protect the public, that it would unduly depreciate the
seriousness of the violation if probation were not revoked and there were no less-restrictive
alternatives available. Pedersen argues that nothing about the circumstances of his case
demonstrated that revocation outweighs the benefit of continued probation. When
addressing the violations, the district court stated:

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Most problematic to me is the lack of domestic abuse
programming. That was your biggest priority for probation,
and here we are a year later, and you have done nothing. I
know you had barriers on your insurance issues. Those barriers
were created in part by yourself. You certainly could have
been more diligent about ferreting that out, and you have done
nothing since January, early January, to try to get yourself back
into that domestic abuse counseling.

Based on this assessment and his probation officer’s testimony that Pedersen
demonstrated a blatant disregard for complying with the conditions of probation and had
“not given corrections anything to work with over the past year,” we conclude the district
court did not abuse its discretion by determining the need for confinement outweighed the
policies favoring probation. Despite being given a downward dispositional departure,
Pedersen made very little effort to comply with the conditions of probation and failed to
complete or even start domestic-abuse programming, which the district court identified as
the “biggest priority” on probation. To the contrary, the OFP suggests he continued to
exhibit the threatening behavior that led to the underlying charges , behavior that the
programming was intended to address. The record evidence of Pedersen’s defiant attitude
and failure to comply with the requirements of probation support the district court’s
determination that the need for confinement outweighed the pol icies favoring probation .
Pedersen was in need of treatment he was unwilling to undertake while on probation and
continued to pose a risk of committing future crimes. Accordingly, the district court did
not abuse its discretion by revoking Pedersen’s probation and executing his sentences.
Affirmed.