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This opinion will be unpublished and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
A19-1077

State of Minnesota,
Respondent,

vs.

Dale Edward Lehman, Jr.,
Appellant.

Filed March 9, 2020
Affirmed
Kirk, Judge*

Stearns County District Court
File No. 73-CR-15-7906

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

Janelle P. Kendall, Stearns County Attorney, Kyle R. Triggs, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Reilly, Judge; and Kirk,
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
KIRK, Judge
In this probati on revocation appeal, appellant argues that the district court abused
its discretion when it revoked his probation because the record does not support a finding
that the need for his confinement outweighs the policies favoring his continued probation.
We affirm.
FACTS
In 2015, appellant Dale Edward Lehman, Jr., was arrested for driving while
impaired (DWI) and possession of methamphetamine. Lehman pleaded guilty to felony
fifth-degree possession of a controlled substance in violation of Minn. Stat. § 152.025,
subd. 2(b)(1) (2014), and misdemeanor DWI in violation of Minn. Stat. § 169A.27, subd.
1(2) (2014). He was sentenced to 15 months in prison for the possession charge , stayed
for ten years, and 90 days in prison for the DWI charge, stayed for two years. The district
court placed Lehma n on probation for ten years. Conditions of Lehman’s probation
included abstaining from all controlled substance use and completing a chemical
dependency evaluation.
From September 2017 to April 2019, t he distric t court determined that Lehman
violated his probation three times after he missed multiple drug screenings, failed multiple
drug screenings, attempted to alter a urine sample, and failed to complete an updated
chemical dependency evaluation. Based on Lehman’s three formal violations, the district
court determined that “it would unduly depreciate the seriousness of the violation if
probation were not revoked,” and thus, “the need for confinement outweighs the policy

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favoring probation.” The district court revoked Lehman’s probation and executed his 15-
month sentence.
This appeal follows.
D E C I S I O N
Lehman argues that the district court abused its broad discretion when it revoked
the stay of execution because the district court’s finding that the n eed for his confinement
outweighs the policies favoring probation is not supported by the record. The district court
has broad discretion in determining whether sufficient evidence exists to revoke probation,
and this court will reverse only if there is a clear abuse of discretion. State v. Austin, 295
N.W.2d 246, 249-50 (Minn. 1980).
Before a district court revokes an individual’s probation, it must make three specific
findings: (1) that the probationer violated a specific condition of his or her prob ation;
(2) that the violation was intentional or inexcusable; and (3) that the need for confinement
outweighs the policies favoring probation. Id. at 251. In making these findings, “courts
must seek to convey their substantive reasons for revocation and the evidence relied upon.”
State v. Modtland, 695 N.W.2d 602, 608 (Minn. 2005). Fundamentally, a district court’s
decision to revoke probation “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.” Austin, 295 N.W.2d at 251 (quotations
omitted). Whether the district court made the required Austin findings is a question of law
that we review de novo. Modtland, 695 N.W.2d at 605.

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Lehman challenges only the district court’s finding on the third Austin factor: that
the need for his confinement outweighs the policies favoring probation. When assessing
this third factor, a district court shou ld balance whether: (1) “confinement is necessary to
protect the public from further criminal activity by the offender” ; (2) “the offender is in
need of correctional treatment which can most effectively be provided if he is confined” ;
or (3) “it would undu ly depreciate the seriousness of the violation if probation were not
revoked.” Id. at 607. A district court is not required to find that all three considerations
weigh in favor of a finding that the need for confinement outweighs the policy favoring
probation. See Goldman v. Greenwood, 748 N.W.2d 279, 283 (Minn. 2008) (stating that
“we normally interpret the conjunction ‘or’ as disjunctive rather than conjunctive”).
Here, the district court considered each Austin factor as it related to Lehman. When
it assessed the third factor, it first determined whether confinement was necessary to protect
the public from further criminal activity by the offender. The district court concluded that
it was unclear if there was any other ongoing criminal activity apa rt from Lehman’s
continued illicit drug use and if he would continue to drive under the influence. The district
court next considered whether the offender was in need of correctional treatment that can
most effectively be provided if he is confined. The district court acknowledged that
Lehman was in need of treatment and that it would be unlikely that he would receive any
substance-abuse programming while confined because of the relatively short duration of
his sentence. Finally, the district court considered whether it would unduly depreciate the
seriousness of the violation if Lehman’s probation was not revoked. The district court
determined that because this was his third formal violation, he had previously failed to

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complete his ordered chemical depe ndency evaluation, and he had failed to demonstrate
any meaningful progress in his treatment goals, “it would unduly depreciate the seriousness
of the violation if probation were not revoked.”
The record reflects that the district court did not take this course of action lightly.
Indeed, it acknowledged, “the court is put in an impossible situation,” and it “really
struggle[d] on what to do.” Nevertheless, after carefully assessing Lehman’s hi story of
probation violations and the totality o f the circumstances of the case , and balancing his
history and these circumstances in light of all of the Austin factors, the district court
determined that, “the need for confinement outweighs the policy favoring probation” as “it
would unduly depreciate the seriousness of the violation” to allow Lehman to remain on
probation.
As the record is sufficient to support that the district court’s revocation of Lehman’s
probation was more than “a reflexive reaction to an accumulation of technical violations,”
and instead was based on the district court’s determination that “the offender’s behavior
demonstrates that he or she cannot be counted on to avoid antisocial activity,” Austin, 295
N.W.2d at 251 (quot ations omitted), we conclude that the district court did not abuse its
discretion when it revoked Lehman’s stay of execution and executed his 15-month
sentence.
Affirmed.