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This opinion will be unpublished and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
A19-2036

State of Minnesota,
Respondent,

vs.

Jesse Daniel Kriesel,
Appellant.

Filed August 10, 2020
Affirmed
Bratvold, Judge

Morrison County District Court
File No. 49-CR-17-326

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

Brian Middendorf, Morrison County Attorney, Little Falls, Minnesota (for respondent)

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

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and
Halbrooks, Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this appeal from the district court’s order revoking probation and executing a
stayed sentence, appellant argues that the district court (1) violated hi s due-process rights
by excluding his witnesses at his probation-revocation hearing and (2) abused its discretion
by revoking probation and executing his sentence. We affirm.
FACTS
In February 2013, when he was 16 years old, appellant Jesse Daniel Kriesel pleaded
guilty to one count of being an ineligible person in possession of a firearm. The district
court designated Kriesel as an extended jurisdiction juvenile (EJJ).1 Kriesel pleaded guilty
and the district court imposed a stayed 60-month sentence, adjudicated him delinquent, and
placed him on probation.
In February 2017, four days before Kriesel’s 21st birthday, the district court revoked
Kriesel’s EJJ status because he had violated terms of his probation. The revocation
effectively terminated the extended jurisdiction of the juvenile court and jurisdiction
transferred to adult court. See Minn. Stat. § 260B.130, subd. 5(a), (c)-(d) (2018). The
district court dispositionally departed and reimposed the 60-month prison sentence, stayed
execution of the sentence, and again placed Kriesel on probation. The district court
reasoned that Kriesel had developed “a serious chemical dependency” for which he had

1 EJJ is a status for “a child who has been given a stayed adult criminal sentence, a
disposition under [Minn. Stat. § 260B.198], and for whom jurisdiction of the juvenile court
may continue until the child’s twenty-first (21st) birthday.” Minn. R. Juv. Delinq. P. 19.01,
subd. 2(A).
3
not yet received treatment, so there was no “disadvantage to staying execution and
requiring [Kriesel] to go to treatment.” The district court also stated that the possibility of
an executed prison sentence was no longer “going to deter [Kriesel] or scare [him] off” and
that Kriesel’s family, not the threat of serving prison time, was “[t]he reason to get sober.”
The district court imposed several conditions of probation, including that Kriesel was
required to abstain from using drugs and alcohol, submit to drug testing on demand, and
remain in contact with his probation officer. The district court repeatedly warned Kriesel
throughout the hearing that this was a “one-time shot” and his “last opportunity,” and that
violating the terms of probation would result in the execution of his 60- month prison
sentence.
In August 2019, Kriesel’s probation officer recommended that the district court
revoke probation because Kriesel had violated three terms of probation. The probation
officer’s report stated that Kriesel registered a 0.061 alcohol concentration in a preliminary
breath test on June 13, 2019, failed to appear for drug testing on three occasions in July
2019, and failed to keep in contact with the probation officer after July 30, 2019.
The district court held a probation- revocation hearing. Kriesel admitted to the
probation violations at the start of the hearing. The state called Kriesel’s probation officer,
who testified a bout the probation violations. Kriesel testified about the circumstances
leading up to the violations. After Kriesel testified, the district court asked if he had “[a]ny
other witnesses.” Kriesel’s attorney said that he intended to call two additional witnesses
to testify. The district court did not allow either witness to testify because, after hearing the
attorney’s offer of proof, the court found the testimony “not relevant.”
4
The district court revoked Kriesel’s probation, executed the stayed sentence, and
committed Kriesel to the commissioner of corrections for 60 months with credit for time
served. Kriesel appeals.2
D E C I S I O N
I. The district court did not violate Kriesel’s due-process rights by excluding his
witness testimony at the revocation hearing.
Kriesel argues that the order revoking probation should be reversed because the
district court “violated [his] due process rights by refusing to allow [him] to present his
witnesses at his probation revocation hearing.” He contends that his witnesses “could have
not only corroborated [his] testimony and reasons for his relapse, they also had independent
information about [his] treatment success and sobriety.”
The United States and Minnesota Constitutions guarantee criminal defendants due
process of law. U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7. The right to due
process applies in probation-revocation proceedings. See Morrissey v. Brewer, 408 U.S.
471, 488-89, 92 S. Ct. 2593, 2603-04 (1972) (holding that the right to due process applies
to parole-revocation proceedings); Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756,
1759-60 (1973) (extending Morrissey to probation-revocation proceedings); see also
Pearson v. State, 241 N.W.2d 490, 492-93 (Minn. 1976) (applying the holdings of
Morrissey and Gagnon to probation-revocation proceedings in Minnesota).

2 The state informed this court that it would not submit a responsive brief in this appeal.
This court therefore conducts its review under Minn. R. Civ. App. P. 142.03 (providing
that default of respondent results in merits review).
5
Due process guarantees several constitutional safeguards before probation can be
revoked. One safeguard is the “opportunity to be heard in person and to present witnesses
and documentary evidence.” Id. at 492 (quoting Morrissey, 408 U.S. at 489, 92 S. Ct. at
2604); see also Minn. R. Crim. P. 27.04, subd. 2(1)(c)d (requiring district court to inform
probationer of the right to “call and cross-examine witnesses” at the first appearance in
revocation proceedings). “Whether a defendant has been denied due process of law is a
question of law that [appellate courts] review de novo.” State v. Beaulieu, 859 N.W.2d 275,
280 (Minn. 2015).
At the revocation hearing, Kriesel testified that he had been diagnosed with
depression and severe anxiety, stopped taking his prescription medications because he lost
his health insurance, had trouble staying employed, and had personal issues that caused his
relapse into drug and alcohol use.
In response to the district court’s question about additional evidence, Kriesel’s
attorney stated that two witnesses, Kriesel’s sister and his long-term girlfriend, would
“testify about the difference between when [Kriesel]’s sober and when he’s not,” that they
were “not willing to put up with anything but what is best which includes sobriety, ” and
that they are “part of his support network.” The district court rejected the attorney’s off er
of proof as “not relevant.” Kriesel elaborates on appeal that his witnesses would have
provided “mitigating evidence as to why the violations should not result in revocation” and
“independent information about [his] treatment success and sobriety.”
Morrissey, Gagnon, and Pearson provide that a probationer has the right to an
opportunity to present witnesses at a revocation hearing. Kriesel had that opportunity. After
6
he testified, there were no disputed facts so additional testimony was unnecessary. Based
on the offer of proof, the excluded testimony was cumulative of Kriesel’s already-admitted
testimony. We acknowledge that the Minnesota Rules of Evidence do not apply to
revocation proceedings, see Minn. R. Evid. 1101(b)(3), and therefore do not refer to these
rules with regard to the district court’s decision to exclude Kriesel’s witnesses. We note,
however, that Kriesel provides no legal authority holding that a due-process violation
occurs when a district court excludes cumulative evidence from a revocation hearing.
Based on our review of this record, we conclude that the district court’s decision to
exclude Kriesel’s proffered witness testimony was not a due-process violation. 3
II. The district court did not clearly abuse its discretion by revoking probation
and executing Kriesel’s sentence.
Kriesel argues that the district court abused its discretion by revoking probation and
imposing an executed sentence. A district court’s decision to revoke probation and execute
a sentence “cannot be a reflexive reaction to an accumulation of technical violations,” but
instead “requires a showing that the offender’s behavior demonstrates that he or she cannot
be counted on to avoid antisocial activity.” State v. Austin, 295 N.W.2d 246, 251 (Minn.
1980) (quotation omitted). “The [district] court has broad discretion in determining if there

3 Even if we assume the district court erred, our standard for reversal is unclear. The most
stringent standard for reversal requires the error to be harmless beyond a reasonable doubt.
See State v. Davis, 820 N.W.2d 525, 533 (Minn. 2012). We conclude that any error is
harmless beyond a reasonable doubt because there were no factual disputes concerning
Kriesel’s probation violations and Kriesel’s witnesses would have provided— at most—
cumulative evidence.
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is sufficient evidence to revoke probation and should be reversed only if there is a clear
abuse of that discretion.” Id. at 249-50.
A district court may revoke probatio n upon finding clear and convincing evidence
of a probation violation. Minn. R. Crim. P. 27.04, subds. 2(1), 3(2)- (3). Before revoking
probation, a district court’s findings must satisfy three factors: (1) specifically designate
the conditions of probation that were violated, (2) find that the violation was “intentional
or inexcusable,” and (3) “find that the need for confinement outweighs the policies
favoring probation.” Austin, 295 N.W.2d at 250. These are commonly called the Austin
factors.
In district court and again on appeal, Kriesel challenges only the third Austin factor.
When considering the third Austin factor, district courts should limit revoking probation to
situations where one of three sub-factors are present:
(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 depreciate
the seriousness of the violation if probation were not revoked.
State v. Cottew, 746 N.W.2d 632, 636 (Minn. 2008) (quoting Austin, 295 N.W.2d at 251).
Only one sub-factor is necessary to support revocation. See id.
The district court found that the first sub-factor weighed against revocation because
it did “not believe” confinement was necessary to protect the public. The district court
found that the second sub-factor weighed against revocation because it was “not
necessarily the case” that Kriesel needed treatment that could most effectively be provided
in confinement.
8
But on the third sub -factor, the district court found that not revoking probation
would unduly depreciate the seriousness of the probation violations, stating:
My understanding is [the judge presiding over the EJJ
revocation pr oceeding] made a decision to dispositionally
depart when he did sentence you as an adult. He believed at
that time that you were amenable to probation and afforded you
a chance.

Now I understand the chemical dependency. I
understand relapse. I understand support systems. I understand
all of that. But what’s inexcusable here is you completely
having no contact with your probation agency and not testing
for that month.

. . . .

And then your own admission here that you were using
meth which is something that should have triggered something
for you to reach out and you didn’t. That’s what scares me. . . .
[W]hat you did is you went back to use. That’s not amenable
to probation.

So in light of that, the Austin factors do apply, and I am
going to commit you.
Kriesel contends that the district court erred, reasoning that “the need for
confinement was not outweighed by the policies favoring probation [because he] had a
relapse after he successfully completed inpatient and aftercare treatment, was doing well
on probation for a significant period[,] and had been moved to a lower level of
supervision.” In other words, Kriesel relies on the first two sub-factors.
We discern no clear abuse of discretion in the district court’s decision to revoke
probation based on t he third sub-factor. After testing positive for alcohol in June 2019,
Kriesel falsely told a police officer that he did not know he could not drink alcohol while
9
he was on probation. Kriesel then violated another term of probation by failing to appear
for drug testing on three occasions in July 2019. Kriesel’s probation officer testified that
Kriesel did not appear for the first two tests because he could not afford them, but that does
not explain Kriesel’s third failure to appear because his probation officer allowed him to
pay for the test at a later date. Then, after failing to appear for drug testing for the third
time, Kriesel ceased all contact with his probation officer—a violation the district court
found “inexcusable.” The district court’s reasons f or revoking probation are supported by
the record.
We reject Kriesel’s argument that revocation was a “reflexive reaction” to a series
of “technical violations.” First, Kriesel had many opportunities over several years to show
his amenability to probation. And the district court warned that he had one “last
opportunity” to succeed on probation after his EJJ status was revoked in 2017. Second,
Kriesel’s violations were more than “technical.” In 2017, the district court placed Kriesel
on probation so that he could get treatment for chemical-dependency issues. Therefore,
Kriesel’s drug and alcohol use undermined one of the primary purposes of his probation.
Third, Kriesel’s contention that his violations were “technical” conflicts with the district
court’s finding that his failure to remain in contact with probation was “inexcusable.” As
the district court explained, Kriesel admitted he began using drugs while he remained out
of contact with probation, and this “is something that should have triggered something for
you to reach out and you didn’t.” Refusing to be supervised defeats the possibility of
successful probation.
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In sum, we conclude that the district court did not clearly abuse its discretion by
revoking probation and executing Kriesel’s stayed sentence.
Affirmed.