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This opinion will be unpublished and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
A19-1320

State of Minnesota,
Respondent,

vs.

Brian Edward Harper,
Appellant.

Filed May 4, 2020
Reversed and remanded
Cochran, Judge

Ramsey County District Court
File No. 62-CR-17-690

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

John J. Choi, Ramsey County Attorney, Ad am E. Petras, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Ab igail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Ross, Judge; and
Larkin, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
In this appeal from the district court’s order revoking probatio n, appellant Brian
Edward Harper argues that th e district court failed to make adequate findings to support

2
the revocation of his probation. Because the district court’ s findings are inadequate, we
reverse and remand for further findings.
FACTS
In January 2017, the state ch arged Harper with two coun ts of burglary. Harper
pleaded guilty to first-degree burglary of an occupied dwelling. He moved for a downward
dispositional departure, which th e district court granted. The district court sentenced
Harper to 45 months in prison, stayed execu tion of the sentence fo r five years, placed
Harper on probation, and ordered Harper to serve 180 days in local custody.
In September 2018, following a convic tion of misdemeanor assault, Harper
admitted to violating his probation. At th at time, the district court added additional
conditions to his probation and gave him credit for 58 days served.
In March 2019, a second probation-violati on report was filed. The report alleged
that: (1) Harper used cocaine, marijuana, and alcohol; (2) Ha rper failed to comply with
random drug testing on five occasions; (3) Harper failed to comply with a chemical-health
assessment and complete treatment programming; (4) Harper failed to attend two support
group meetings; and (5) Harper failed to repo rt for two scheduled ap pointments with his
probation officer.1
At the probation-revocation hearing, Harp er admitted to the five probation
violations. The county attorney, the probati on officer, and Harper’s attorney presented

1 After the probation-violation report was filed and before the probation-revocation
hearing, Harper was arrested for driving while intoxicated and gross misdemeanor criminal
damage to property. However, these were not bases for his probation-revocation hearing.

3
arguments. At the end of the hearing, the di strict court judge orally revoked Harper’s
probation and executed his sentence. This district court explained: “I am finding, sir, that
the policies favoring probation in the comm unity are outweighed by the need for
confinement in your case.” The district court did not issue an y written findings to
supplement its ruling at the hearing.
Harper appeals.
D E C I S I O N
Harper argues that the district court erred when it failed to make adequate findings
on the factors needed to support revocation of his probation. In State v. Austin, the supreme
court held that the district court mu st make three findings before revoking
probation: “1) designate the specific condition or conditions that were violated; 2) find that
the violation was intentional or inexcusabl e; and 3) find that need for confinement
outweighs the policies favoring probation.” 295 N.W.2d 246, 250 (Minn. 1980). These
findings are commonly known as the Austin factors.
In State v. Modtland, the supreme court reaffirmed its “core” holding in Austin
regarding the findings nece ssary for probation revocation. 695 N.W.2d 602,
606 (Minn. 2005). The court further held that when making the findings on the three Austin
factors, district courts “must seek to conv ey their substantive re asons for revocation and
the evidence relied upon.” Id. at 608. In other word s, the requirements of Austin are not
satisfied by mere recitation of the three factor s or by offering only general, nonspecific
reasons for revocation. Id.

4
Harper contends that the district court’s findings on the second and third Austin
factors are inadequate. A district court “has broad discretion in de termining if there is
sufficient evidence to revoke probation and should be reversed only if there is a clear abuse
of that discretion.” Austin, 295 N.W.2d at 249-50. But whether the district court made the
findings required for revocation of probation is a question of law, which we review
de novo. Modtland, 695 N.W.2d at 605.
Harper first argues that the district court failed to address the second Austin factor
because it did not use the words “intentional or inexcusable” when it concluded that Harper
violated the conditions of his probations. Although it is preferable for the district court to
explicitly use these words, leaving them out does not automatically invalidate a probation
revocation. See, e.g., State v. Wolhart , No. A17-0629, 2017 WL 5077565, at *2 (Minn.
App. Nov. 6, 2017), review denied (Minn. Jan. 16, 2018) (noting that “it is preferable that
the district courts make explicit findings for each Austin–Modtland factor” but upholding
the district court’s revocation of probation where the record revealed that the findings made
by the district court “appropriately addressed the requirements of Austin–Modtland”).2
But, if the district court does not expressly use the words “intentional or inexcusable,” the
district court must still make specific findi ngs indicating that one or more probation
violations were intentional or inexcusable. See Austin, 295 N.W.2d at 249-50; Modtland,
695 N.W.2d at 606.

2 Unpublished opinions are cited only for their persuasive value.

5
At the probation-revocation hearing, Harper admitted all five probation violations.
The district court, however, only inquired into one of the violations: missing random
drug-testing dates. And with regard to that violation, the district court’s inquiry was very
limited. The district court onl y asked Harper if he was inca rcerated on the drug-testing
dates, and Harper replied “No.” The district court did not inquire further about Harper’s
reasons for missing those test dates to determ ine if this violation was intentional or
inexcusable. And, the district court did no t inquire about the reasons for his other four
violations: the positive drug tests, termin ation from substance abuse programing, not
attending the support group, and missing two appointments with his probation officer. Nor
did the district court make any oral or written findings re garding whether the probation
violations were intentional or inexcusable.
The district court’s analysis into the in tentionality and inexcu sability of Harper’s
probation violations began and ended with asking Harper if he was incarcerated when he
missed his random drug testing dates. Not on ly did the district cour t not use the specific
words intentional or inexcusable, but it did not make any findings regarding whether the
violations were intentional or inexcusable. Therefore, the district court failed to make the
necessary findings on the second Austin factor.
Harper next argues that the district court only briefly mentioned the third Austin
factor, and that this was “who lly insufficient” to support th e revocation of his probation.
When analyzing the third Austin factor, a district court must consider that the purpose of
probation is rehabilitation, and revocation should be a last resort. Modtland, 695 N.W.2d

6
at 606. 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 treatment
which can most effectively be provided if he is confined; or
(iii) it would unduly deprec iate the seriousness of the
violation if probation were not revoked.

Austin, 295 N.W.2d at 251 (quotation omitted).
The district court did not make any findin gs on the record as to the reasons why it
felt that the policies favoring probation were outweighed by the need for confinement in
Harper’s case. Instead it simply stated, “I am finding, sir, that the policies favoring
probation in the community ar e outweighed by the need for confinement in your case.”
The district court did not make specific findings regarding the need to confine Harper, nor
did it explicitly consider any of the three subf actors. The district court did not weigh the
need for confinement against th e policies that favor probation. Instead it made a blanket
recitation of the third Austin factor. Therefore, the distri ct court failed to adequately
address the third Austin factor.
In sum, the district court failed to co nvey the “substantive reasons for revocation
and the evidence relied upon” as required by Modtland. 695 N.W.2d at 608. This court
could certainly look through the transcript and record and pick out reasoning why Harper’s
actions were intentional or inexcusable and why the policies favoring probation might be
outweighed by the need for confinement. But that is not the role of this court in determining
whether the district court met the requirements of Austin. Modtland, 695 N.W.2d at 608

7
(“[I]t is not the role of appellate courts to scour the record to determine if sufficient
evidence exists to support the district court’s revocation.”).
Because the district court failed to make adequate findings on the second and third
Austin factors, we reverse and remand for further findings.
Reversed and remanded.