State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0448

State of Minnesota,
Respondent,

vs.

Shaniese Latrice Davis,
Appellant.

Filed February 8, 2021
Affirmed
Cochran, Judge
Dissenting, Jesson, Judge

Clay County District Court
File No. 14-CR-18-2779

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

Brian Melton, Clay County Attorney, Pame la L. Foss, Assistant County Attonrey,
Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Jesson, Judge; and
Slieter, Judge.

2
NONPRECEDENTIAL OPINION
COCHRAN, Judge
In this direct appeal, appellant challe nges the district cour t’s revocation of her
probation. Because the district court di d not clearly abuse its discretion by revoking
appellant’s probation, we affirm.
FACTS
In July 2018, respondent State of Minne sota charged appellant Shaniese Latrice
Davis with first-degree criminal sexual con duct following a report that she had sexual
contact with a twelve-year-old boy. Davis pleaded guilty to second-degree criminal sexual
conduct, and she admitted to touching the twel ve-year-old boy’s penis with sexual intent.
Prior to sentencing, Davis co mpleted a sex-offender evalua tion and the Department of
Corrections prepared a presentence-investigation report.
The psychologist who co nducted Davis’s sex-offender evaluation recommended
that Davis complete sex-offend er treatment. The psychologist could not formally assign
Davis a risk level with respect to her chance of reoffending because the relevant actuarial
risk-assessment tools were calibrated for male s only. But the psychologist opined that it
was reasonable to rate Davis as low risk to sexually reoffend.
During her presentence inves tigation, Davis reported severe problems with alcohol.
She reported that she began drinking daily to the point of intoxication in 2014, following
the birth of a stillborn child. Davis completed a chemical-dependency evaluation close in
time to the presentence investigation, and that evaluation recommended that she attend
inpatient chemical-dependency treatment.

3
In February 2019, the district court sent enced Davis to serve 140 months in prison
but stayed execution of the sentence and placed Davis on supervised probation for 25 years,
in accordance with the parties’ plea agreement. Among other probation conditions, the
district court required Davis to follow th e recommendations of her sex-offender and
chemical-dependency evaluations. The district court also prohibited Davis from using
alcohol and nonprescribed mood-altering drugs.
In early November 2019, Davis’s probation officer filed a probation-violation report
alleging that Davis violated the conditions of her probation by (1) failing to abstain from
using alcohol and (2) failing to follow the recommendations of her chemical-dependency
evaluation. Specifically, the report allege d that Davis started chemical-dependency
treatment on June 22, 2019, but was discharged in early July 2019 for nonattendance after
she “chose to leave.” The report also alleged that Davis did not reenter
chemical-dependency treatment despite her probation agent’s “directive to get back into
treatment due to her chronic alcohol use.” The report further alleged that Davis used
alcohol while on probation, both before starting treatment and after being discharged. In
the comments section of the report, Davis’s probation officer concluded that Davis’s
“continued alcohol use is of c oncern to this [a]gent because it places [her] in her sexual
assault cycle, as she was extremely intoxicat ed when she committed the sexual assault of
the minor child in this file.” The report recommended that Davis’s probation be revoked.
At the probation hearing, Da vis admitted that she violated her probation by failing
to abstain from using alcohol and by faili ng to follow the recommendations of her
chemical-dependency assessment. Davis admitted to drinking alcohol several times, both

4
before and after being discharged from treatment as alleged. Davis also admitted that she
was discharged from treatment because she left the treatment facility. She further testified
that she failed to get back into treatment si nce being discharged. She indicated that she
understood that she “was supposed to star t back, but . . . did not.” Based on Davis’s
testimony, the district court found that she “provided admissions to both probation
violations.”
The district court then heard from th e parties and Davis’s probation officer
regarding the appropriate disposition. The stat e requested that the district court revoke
Davis’s probation based on the court’s finding that Davis ha d violated conditions of her
probation. The state noted that Davis used alcohol on a number of occasions while on
probation and argued that Davis poses a significant risk to public safety when she is
drinking. The state also maintained that Da vis is no longer amenable to probation. It
emphasized that Davis had been offered a va riety of support services, both through her
probation officer and social services agencies, but has continued to use alcohol and has not
completed treatment.
Davis’s probation officer also expressed concern about Davis’s continued use of
alcohol. He emphasized that her use of alcohol “could place her back in her sexual assault
cycle.” In addition, her proba tion officer reported to the dist rict court that police reports
reflect that Davis was the victim of multiple domestic assaults while she was on probation
and that she was intoxicated at the time of the first assault. Her probation officer worried
that Davis might be fearful of reporting incidents of abuse if the abuse occurs while she is
intoxicated and on probation.

5
Davis’s attorney requested that Davis be allowed to remain on probation and attend
inpatient treatment. Her attorney argued that Davis abided by all of the conditions of her
probation except two—abstaining from alcohol use and completing treatment. But, in
response to later questioning from the district court, Davis’s attorney acknowledged that
Davis also had not completed another condition of her probation—sex-offender treatment.
He explained that Davis coul d not start sex-offender tr eatment until she successfully
completed chemical-dependency tr eatment. Davis’s attorney al so told the district court
that Davis had been unable to attend chemical-dependency treatment for five weeks (from
early July until sometim e in early to mid-August) because she was in the hospital
recovering from injuries sustai ned as a result of a domestic assault that occurred the day
before she was discharged fro m treatment. Davis’s attorn ey argued that her alcohol
dependency could best be addressed in the community and noted that an inpatient treatment
bed was available for her.
The district court then heard from Davis. The district court asked Davis to explain
why she had not participated in any treatm ent between July and November 2019—the
period between her discharge from treatment and when the probation-violation report was
filed. She informed the court that she had “a lot of health problems” and was “in and out
of the hospital.” She also explained that she was “homeless and staying with [her] abuser”
because she “had nowhere [else] to go.” She further testified that she faced difficulties
because of the injuries that she experienced from the abuse. And she told the district court
that she was scheduled to reenter treatment on three different occasions, but “just never
actually went back.”

6
After hearing from Davis, the district cour t stated that it was “f aced with a really
difficult decision.” The district court judge, who was not the sentencing judge, explained,
“I have read anything that I have access to, including the pre-sentence investigation, the
sentencing worksheet, the sex offender evaluation . . . , the probation violation [report], and
the original [c]omplaint.” While acknowledging that this was Davis’s first probation
violation, the district court judge noted that “it is a very, very serious violation . . . because
the allegation is consumption of alcohol and the underlying case really stems as a result of
being under the influence of . . . a very high amount of alcohol.” The district court judge
further stated that “what is most compelling to the Court is that the violations happened
back in June and July, and somehow, the ship did not get turned around” in the following
months. The district court judge emphasi zed: “I understand—there were a lot of
circumstances going on. But the ship did not get turned around.” The district court judge
reasoned that Davis had “a good chunk of time ” between July and November to get back
into treatment but “[u]nfortunately that did not happen.” As a result, the district court judge
told Davis: “The Court has serious public safety concerns about you and having access to
alcohol, should you not be incarcerated.”
Ultimately, the district court found th at Davis’s probatio n violations were
“intentional and inexcusable, and that the need for confinement outweighs policy favoring
probation.” The district court determined th at “confinement is necessary to protect the
public from further criminal activity and that Ms. Davis is in need of correctional treatment
that can best be offered when confined.” The district court then executed Davis’s
140-month sentence. This appeal follows.

7
DECISION
When a probationer admits violating one or more conditions of probation, a district
court may continue the probationer on proba tion or revoke probation and execute the
underlying sentence. Minn. R. Crim. P. 27.04, subd. 3(2)(b)(iv)-(v). Before it revokes
probation and executes the underlying senten ce, the district court must specifically
find: (1) that the probationer violated a sp ecific condition or cond itions of his or her
probation, (2) that the violation was intentiona l or inexcusable, and (3) that the need for
confinement outweighs the policies favoring probation. State v. Austin, 295 N.W.2d 246,
250 (Minn. 1980). These findings are commonly known as the Austin factors. In making
these findings, district 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).
The district court’s decision to revoke prob ation “cannot be a reflexive reaction to an
accumulation of technical violati ons but requires a showing th at the offender’s behavior
demonstrates that he or she cannot be c ounted on to avoid antisocial activity.” Austin,
295 N.W.2d at 251 (quotation omitted).
District courts have “broad discretion in determining if there 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 abuses its discretion when its “decision is based on an
erroneous view of the law or is agains t logic and the facts in the record.” Riley v. State,
819 N.W.2d 162, 167 (Minn. 2012).
Davis challenges the district court’s findings on all three Austin factors. Davis
argues that the district court abused its disc retion by (1) finding that she violated her

8
chemical-dependency-treatment condition, (2) finding that he r violation of that condition
was intentional and inexcusable, and (3) finding that the need for confinement outweighed
the policies favoring probation. We address each argument in turn.
I. The district court did not abuse its disc retion when it found that Davis violated
conditions of probation.

To satisfy the first Austin factor, the district court mu st “designate the specific
condition or conditions” that the probationer violated. Austin, 295 N.W.2d at 250. At the
probation-violation hearing, Davis admitt ed to violating two conditions of her
probation: (1) abstaining from using alcohol and (2) following the recommendations of her
chemical-dependency evaluation. Based on her testimony, th e district court found that
Davis violated both conditions. On appeal, Davis does not ch allenge the district court’s
finding that she violated the first of th ese two conditions—the condition prohibiting the
use of alcohol. Rather, she argues that the district court abused its discretion when it
concluded that she violated the condition that she follow the recommendations of her
chemical-dependency evaluation. We conclude that the district court’s finding that Davis
violated both conditions is supported by the record and meets the requirements of Austin.
We first note that the distri ct court’s finding that Davis violated the “no alcohol”
condition of her probation is sufficient by itself to satisfy the first Austin factor. The district
court need only find that one condition of probation was violated to support its decision to
revoke probation. Id. (requiring the district court to “designate the specific condition or
conditions that were violated” (emphasis added)). And, regardless, Davis’s arguments as
to why she did not violate her chemical-dependency-treatment condition miss the mark.

9
Davis argues that the district court a bused its discretion wh en it found that she
violated this condition because the district court did not impose a specific deadline for
complying with the recommendations of her chemical-dependency evaluation and she had
over 20 years remaining on probation. As an initial matte r, we note that Davis expressly
admitted at the probation viol ation hearing that she violat ed this condition by failing to
complete chemical-dependency treatment. And she specifically acknowledged that she left
the treatment facility and “was supposed to start back, but did not start back” after she was
discharged. Davis’s testimony supports the district court’s determination that Davis
violated this condition.
In support of her argument, Davis cites two unpublished cases in which this court
found that the probationers did not violat e their conditions of probation by failing to
complete a treatment obligation because the probationers had sufficient time remaining in
their probationary period to complete treatment. State v. Bruce, No. A07-600, 2008 WL
2102893, at *2 (Minn. App. May 13, 2008); State v. Davisson, No. C3-98-1064, 1998 WL
747135, at *2 (Minn. App. Oct. 27, 1998). Unpublished cases are not precedential.
Vlahos v. R&I Constr. of Bloomington, Inc. , 676 N.W.2d 672, 676 n.3 (Minn. 2004); see
also Minn. R. Civ. App. P. 136.01, subd. 1(c) (providing that nonprecedential opinions are
not binding but may be cited as persuasive authority). And, in any event, these
nonprecedential cases are not persuasive here. In Davisson, the probationer was in the
process of complying with the requirement that he undergo a psychological evaluation
when the state alleged that he had violated his probation. 1998 WL 747135, at *1. And in
Bruce, the probationer was termin ated from one program because he was unable to pay,

10
but the record reflected that he had contac ted three other programs about enrolling in
treatment. 2008 WL 2102893, at *2. Neither case persuades us that Davis did not violate
her probation because, in this case, Davis wa s discharged for nonattendance and failed to
return.
We have previously upheld a district court’s decision to revoke probation because
of a probationer’s failure to complete trea tment, notwithstanding time remaining in the
probationary period. State v. Moot, 398 N.W.2d 21, 24 (Minn. App. 1986), review denied
(Minn. Feb. 13, 1987); see also State v. Hemmings, 371 N.W.2d 44, 47 (Minn. App. 1985)
(upholding revocation of probation for failure to complete sex-offender treatment despite
years remaining in the probationary period be cause the record showed that appellant was
unamenable to probation). In Moot, the appellant completed fi ve-and-a-half months of a
six-month chemical-dependency-treatment program, but then accepted a full-time job that
interfered with his treatment and caused the program to terminate him. 398 N.W.2d at 23.
The district court found that Moot’s actions constituted a refusal to comply with the
program and revoked his probation on that basis. Id. at 24.
Here, the district court did not exp licitly find that Davis was unamenable to
probation. But the district court found that the violation was “very serious,” noted that
Davis had time to reenter treatment but “[u]nfortunately, that did not happen.” This caused
the district court to have “serious public sa fety concerns.” Davis’s failure to reenter
treatment during the four months between he r discharge and the filing of the probation
violation report supports the district cour t’s conclusion that Davis violated the

11
chemical-dependency-treatment condition of her probation. The district court did not
abuse its discretion in its findings on the first Austin factor.
II. The district court did not abuse its discretion when it found that Davis’s
violations were intentional and inexcusable.

The second Austin factor requires a finding that “t he violation was intentional or
inexcusable.” Austin, 295 N.W.2d at 250. The district court found that both of Davis’s
probation violations “were intentional and inexcusable.” On appeal, Davis does not dispute
the district court’s finding that she intentionally and inexcusably violated her probation by
using alcohol. Rather, she argues that the di strict court abused its discretion when it
concluded that she intentionally and inexcusably failed to comply with the requirement that
she follow the recommendations of her chemical-dependency evaluation. We do not find
her argument to be persuasive.
Davis argues that the district court abused its discretion by finding that her violation
of the treatment condition was intentional and inexcusable because the violation stemmed
from Davis being the victim of domestic abus e. We acknowledge that the record reflects
that Davis was, unfortunately, the victim of domestic abuse in early June and again in early
July, around the time that Davis left the treatment facility. And, according to her attorney,
the July assault caused her to be hospitalized for five weeks. But Davis was released from
the hospital in early to mid-A ugust and did not reenter treatment at any point prior to
November 2019, when the probation violation re port was filed. Davis cites no case that
would support the proposition that a district court abuses it s discretion by finding that a

12
violation was intentional and inexcusable where a probationer failed to return to treatment
months after a serious assault.
To support revocation of probation under the second Austin factor, the district court
need only find that the violation was intentional or inexcusable. Austin, 295 N.W.2d at
250. In State v. Losh, the appellant argued that the dist rict court abused its discretion by
revoking Losh’s probation because her viola tion was unintentional. 694 N.W.2d 98, 101
(Minn. App. 2005), aff’d on other grounds 721 N.W.2d 886 (Minn. 2006). This court
affirmed, finding that the district court acte d within its discretion by determining that
Losh’s excuse was not credible and, thus, Losh’s violation was intentional. Id. at 102. And
this court has repeatedly affirmed district court decisions concluding that probationers have
intentionally or inexcusably violated thei r probation when they are terminated from
required treatment programs. See, e.g., Moot, 398 N.W.2d at 24; Hemmings, 371 N.W.2d
at 47.
Here, the district court considered Davi s’s explanations but concluded that the
“violations were intentional and inexcusable.” The court acknowledged that “there were a
lot of circumstances going on” at the time of the violations in June and July but expressed
concern that “somehow, the sh ip did not get turned around ” in the intervening months
before the filing of the prob ation-violation report in No vember. The district court
implicitly found that Davis’s excuse for not reentering treatment was not credible because,
even if her injuries excused her failure to return to treat ment until she was released from
the hospital in August, Davis presented no reason why she was unable to return to treatment
after she recovered. Because the district court’s role is to judge the credibility of witnesses,

13
we defer to the district court’s credibility determination. Moot, 398 N.W.2d at 23. The
district court’s finding that Davis’s violatio n was intentional and inexcusable is thus
supported by the facts in the record.
III. The district court acted within its di scretion when it concluded that the need
for confinement outweighed the policies favoring probation.

Once a district court finds an intentiona l or inexcusable violation of a specific
probationary condition, it must “determine whether the need for confinement outweighs
the policies favoring probation.” Modtland, 695 N.W.2d at 606. When evaluating whether
the need for confinement outweighs the policies favoring probation, the district court must
“balance the probationer’s interest in freedom and the state’s interest in insuring [her]
rehabilitation and the public safety.” Id. at 606-07 (quotation omitted). In balancing these
interests, the district court considers whether “(i) confinement is necessary to protect the
public from further criminal activ ity by the offender; or (ii) the offender is in need of
correctional treatment which can most effectively be provided if [s]he is confined; or (iii) it
would unduly depreciate the se riousness of the violation if probation were not revoked.”
Id. at 607 (quoting Austin, 295 N.W.2d at 251). Revocation is justified where the district
court finds that even just one subfactor is met. See id.; see also Goldman v. Greenwood,
748 N.W.2d 279, 283 (Minn. 2008) (explaining that “we normally interpret the conjunction
‘or’ as disjunctive rather than conjunctive”). Here, the district court found that the first
two subfactors supported revocation. The record supports this conclusion.
With respect to the first s ubfactor, the district court concluded that confinement was
necessary to protect the public from furt her criminal activity by Davis. While

14
acknowledging that “this is a first violation of probation,” the district court stated that the
violation was “very serious . . . because the allegation is the consum ption of alcohol and
the underlying case really stems as a result of being under the influence of alcohol—a very
high amount of alcohol.” The district court explained that it had “s erious public safety
concerns about [Davis] . . . having access to alcohol, should [she] not be incarcerated.”
The district court’s concerns for public sa fety are buttressed by the views of both the
psychologist who conducted Da vis’s sex-offender evaluation and her probation officer.
The psychologist specifically recommended that Davis abstain from alcohol or other drug
use because they can disinhibit behavior and because Davis was intoxicated at the time of
the offense. Similarly, Davis’s probation offi cer stated in his report that revocation was
justified because Davis’s continued use of alcohol put the commun ity at risk for a
reoffense. And, while the psychologist opined that Davis is low risk for reoffending, low
risk does not mean no risk. Further, the district court’s public safety concerns are justified
given that Davis was convicted of criminal sexual conduct against a young victim and has
not completed either chemical-dependency treatment or sex-offender treatment yet
continues to use alcohol. The record thus supports the district court’s finding that
confinement is necessary to protect the public.
With respect to the second subfactor, the district court concluded that Davis was in
need of correctional treatment that could most effectively be provided if she were confined.
In reaching this conclusion, the district cour t found that “given the history of alcohol
consumption here, and the chemical dependency , and the failed attempt at treatment, it is
apparent to the Court that significant treatment is needed, and it is likel y that that kind of

15
treatment can be offered in a correctional setting.” And, as noted above, Davis has not yet
completed sex-offender treatment, another requi rement of her probation. Davis must be
sober before she can begin sex-offender treatmen t, and the district court concluded that a
correctional setting presents the best chance for her to accomplish both requirements.
Thus, the record supports the district court’s finding that Davis is in need of correctional
treatment that could most effectively be provided if she were confined.
Davis presents three arguments as to why the district court abused its discretion by
finding that her confinement is necessary to protect the public and that she is in need of
correctional treatment that can be most effectively provided if she were confined. We
address each argument in turn.
First, she argues that the district cour t revoked her probation as a “reflexive
reaction” to technical violations, rather than upon a showing that she could not be counted
on to avoid antisocial behavior. She notes that she has remained law-abiding and complied
with most of her probation conditions—all except the “no alcoho l” condition and the
chemical-dependency-treatment condition. Davis further argue s that the district court
failed to consider an intermediate sanction, such as “jail time, al cohol monitoring, or
inpatient chemical dependency treatment.” But a district court does not abuse its discretion
just because it declines to allow a proba tioner to receive additional services. See
State v. Osborne, 732 N.W.2d 249, 255 (Minn. 2007) (concluding that the district court did
not abuse its discretion by revoking the defendant’s probation without giving the defendant
an opportunity to seek add itional probationary resources ). And the close connection
between use of alcohol and the underlying offense supports the district court’s conclusion

16
that Davis presents a risk to the public of sexually reoffending while she remains untreated
and continues to use alcohol. The district c ourt’s decision was not a “reflexive reaction”
to technical violations, but rather reflects careful consideration of the record.
Second, Davis argues that the record does not support the district court’s conclusion
that her confinement is necessary to protect the public. Davis is correct that the
psychologist who conducted the sex-offender evaluation was unable to formally assign her
a risk level due to a lack of actuarial risk-assessment tools calibrated for female offenders
and instead opined that she posed a low risk of sexually reoffending based on information
from the evaluation. But Davis pleaded guilty to second-degree criminal sexual conduct,
a serious offense. See Minn. Sent. Guidelines 4.B (2017 supp.) (ranking relative severity
of sex offenses). And Davis has not shown that the district court’s concern that she poses
a risk to the public while sh e has access to alcohol is agains t logic and the facts in the
record, given the severity of her underlying offense and her own admission that she used
alcohol “several times” while on probation as an untreated sex offender.
Third, Davis argues that the record does not support the district court’s conclusion
that she was in need of correctional treatmen t that could most effectively be provided if
she were confined. At the probation-revoca tion hearing, Davis’s attorney informed the
district court that Davis underwent a chem ical-dependency-needs assessment shortly
before the hearing. The n eeds assessment recommended “chemical dependency partial
hospitalization,” which Davis’s attorney repr esented was “available to her,” stating,
“[t]here is a bed available to her whenever she is released from our custody.” But simply
because the district court had the option to allow Davis to enter treatment again at another

17
community facility does not mean that it abused its discretion by declining to do so. The
district court concluded that treatment optio ns in the community we re insufficient based
on Davis’s decision to leave the community tr eatment facility where she was receiving
treatment and subsequent failure to reenter treatment in the intervening months. Based on
the seriousness of the underlyi ng offense and the nexus between that offense and alcohol
use, Davis has not shown that the district court abused its discretion by concluding that she
was in need of treatment that could most eff ectively be provided if she were confined.
Moreover, the district court’s finding in this regard was not necessary because the district
court also found that confinement is necessary to protect the public from further criminal
activity by Davis. See Modtland , 695 N.W.2d at 607 (pro viding that revocation of
probation is appropriate if “confinement is necessary to protect the public from further
criminal activity . . . or . . . the offender is in need of correctional treatment which can most
effectively be provided if [s]he is confined” (emphasis added)). And, as discussed above,
that finding is well supported by the record.
In sum, mindful of the deferential standa rd by which we review a district court’s
decision to revoke probation, we cannot conclude on the basis of this record that the district
court clearly abused its discretion when it revoked Davis’s probation.
Affirmed.

D-1

JESSON, Judge (dissenting)
I respectfully dissent.
District courts wield wide discretion when determining whether to revoke probation
and execute a stayed sentence. But wide is not endless. Boundaries limit discretion. And
here, the district court crossed the bound of that discretion by revoking probation and
requiring Davis—a victim of domestic violence—to serve a 140-month prison sentence for
her first probation violation. Should Davis face sanctions for drinking and not completing
treatment between August and November? Certainly. Intermediate sanctions were called
for.1 But an examination of the Austin factors demonstrates that probation revocation for
this first-time violation defies logic and the facts before us. Riley v. State, 819 N.W.2d 162,
167 (Minn. 2012) (holding that a district c ourt abuses its discretion when its decision is
“based on an erroneous view of the law or is against logic and th e facts in the record”
(quotation omitted)).
While Austin v. State requires three explicit findings, the third necessary finding is
dispositive here: whether the need fo r confinement outweighs the policies
favoring probation. 295 N.W.2d 246, 250 (Minn. 1980); see also State v. Modtland ,

1 An intermediate sanction is a consequence imposed by the district court when it “has
determined that the defendant has violated [her] probation but that revocation of the
defendant’s probation . . . is not appropriate . . . because rehabilitation is still possible.”
State v. Cottew , 746 N.W.2d 632, 637 (Minn. 20 08). Intermediate sanctions may
include, but are not limited to, “incarceration in a local jail . . . home detention, electronic
monitoring . . . sentencing to service . . . chemical dependency or mental health
treatment . . . restitution, fines, [and] community work servic e.” Minn. Stat. § 609.135,
subd. 1(b) (2018).

D-2

695 N.W.2d 602, 608 (Minn. 2005). 2 As the majority explains, to conclude that the
need for confinement outweighs the policies favoring probation, a court must find one of
the following: “(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 pr obation” were not revoked. Austin, 295 N.W.2d at 251.
While the district court found that the firs t two subfactors were met—and only one must
be present—I disagree.
As to the first factor (whether confinemen t is necessary to prot ect the public), the
district court’s decision to revoke Davis’s pr obation was justified on the sole basis of the
tie between her failure to reenter treatment for three months and the fact that she committed
the underlying offense while intoxicated. But the district court did not specify any reason
for concluding that execution of her entire sentence was the only way to protect the public
from Davis. And the record be fore the district court refl ects no overriding public safety
concern. At sentencing, the prosecutor represented that Da vis’s sex-offender evaluator
opined that Davis was a low risk to sexually reoffend. No thing between sentencing and
the revocation hearing altered this assessment. The record is devoid of any indication of
criminal behavior or conduct that imperile d the public during Davis’ short probation.
Rather, Davis herself was the victim of at l east three assaults, events which apparently

2 While I question the district court’s decision that Davis’s violations were intentional or
inexcusable, I agree with the majority that the district court’s decision on this factor is not
an abuse of discretion.

D-3

precipitated substance abuse.3 Absent any showing of dange rousness, the district court’s
conclusion that Davis presented a danger to the public while untreated is against the facts
in the record.
As to the second factor (whether the offender needs treatment which can most
effectively be provided during confinement), the record again provides no support for the
district court’s bare conclusion that execution of a 140-month prison sentence—as opposed
to an intermediate sanction combined with a new treatment opportunity—was necessary to
ensure effective treatment. 4 I find this particularly trou bling because the district court
never found that Davis was unamenabl e to treatment in the community.
Cf. State v. Hemmings, 371 N.W.2d 44, 47 (Minn. App. 1985) (affirming revocation upon
explicit finding that appellant was unamenable to treatment). Nor di d the district court
address the new treatment option proposed by Davis’s counsel: partial hospitalization.5
Treatment for substance-use disorder in Minnesota is not a one-size-fits-all model.
Rather, a continuum of treatment options and recovery supports are available. See, e.g.,

3 At the revocation hearing and in the probation violation report, Davis’s probation officer
expressed concern that Davis’s continued use of alcohol “could place her back in her sexual
assault cycle.” But the record contains no evidence of any further criminal behavior by
Davis. The record involving a “sexual assau lt cycle” appears to re fer to the cycle where
Davis herself was the victim of multiple assaults by a domestic partner.
4 “Confinement,” in this context, refers to “the imprisonment of th e defendant following
revocation of the defendant’s probation and execution of the underlying sentence, not the
imposition of confinement as an intermediate sanction.” State v. Cottew, 746 N.W.2d 632,
637 (Minn. 2008).
5 A partial hospitalization pr ogram “provides a mix of out patient individual and group
counseling in a setting with medical se rvices.” Johns Hopkins Medicine, Treatment
Settings, Center for Substance Abus e Treatment and Research,
https://www.hopkinsmedicine.org/substance_abuse_center/treatment/settings.html#php
(last visited Jan. 5, 2021).

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Minn. Dep’t of Human Serv., Drug and Alcohol Abuse in Minnesota a Biennial Report to
the Legislature 23 (2018) [hereinafter Biennial Report] (describing the shift in Minnesota’s
chemical dependency treatment from an “acute care model to a chronic care model that is
comprehensive, integrated and designed to support recovery across the lifespan”). For the
court to determine that treatment could only be effective in prison ignores the reality of
those options. And it ignores the reality of this case—a relapse while a victim of domestic
violence and a failure to enter treatment for th ree months afterwards. To conclude that
revocation was necessary here without articul ating why Davis could not be effectively
treated in the community defies logic and the facts of this case.
My view of the Austin factors is reinforced by guidance from caselaw, as well as
the Minnesota Sentencing Guidelines. As th e Minnesota Supreme Court has explained,
“[t]he purpose of probation is reha bilitation and revocation should be used only as a last
resort when treatment has failed.” Austin, 295 N.W.2d at 250 (emphasis added). Further,
“district courts must take care to ensure that the de cision to revoke probation is based on
sound judgment and not just their will.” Modtland, 695 N.W.2d at 607 (quotation omitted).
And revocation “cannot be a reflexive reaction to an accumulation of technical violations
but requires a showing that the offender’s beha vior demonstrates that he or she cannot be
counted on to avoid antisocial activity.” Austin, 295 N.W.2d at 251 (quotation omitted).
Similarly, the Minnesota Sentencing Guidelines explain that revocation of probation
is justified when “[t]he offe nder is convicted of a new fe lony for which the Guidelines
recommend prison; or [t]he offender continues to violate conditions of the stay despite the
court’s use of expanded and more onerous conditions.” Minn. Sent. Guidelines 3.B (2018)

D-5

(emphasis added). The first condition cannot be satisfied because Davis had not committed
any new offenses, much less a fe lony for which the presumptive sentence is prison. And
Davis cannot be said to have “continued to violate” the conditions of her stay because the
court executed her sentence without fi rst imposing “expanded and more onerous
conditions.”6
In sum, there is little in th e record to support the district court’s conclusion that
revocation was necessary beyond a three month lapse in seeking treatment while drinking
and what was known at the time Davis was sentenced. 7 The district court did not revoke
probation as “a last resort”—it failed to examine the new treatment alternative that Davis
proposed. To treat a single relapse, absent a cl ear threat to public sa fety, as a sign that a

6 The sentencing guidelines go on to say that:
The decision to revoke an offe nder’s stayed sentence should
not be undertaken lightly. Great restraint should be exercised
in imprisoning offenders who were originally convicted of low
severity level offenses or who have short prior criminal
histories. For these offenders, the Commission urges
continuance of the stay and use of more restrictive and onerous
conditions, such as periods of local confinement. Less judicial
tolerance is urged for offenders who were convicted of a more
severe offense or who had a longer criminal history. For both
groups of offenders, however, the court should not reflexively
order imprisonment for non-criminal violations of
probationary conditions.

Minn. Sent. Guidelines 3.B (emphasis added). While Davis is in the category of offenders
for whom “less judicial tolerance is urged,” it is beyond question that the violations alleged
here are non-criminal in nature.
7 The district court acknowledged that it was Davis’s failure to reenter treatment—and not
her initial departure, which ap pears to have been precipita ted by domestic abuse—that
justified its decision to revoke probation.

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person is incapable of receiving treatment in the community contravenes Minnesota’s
policy of recognizing substance use disorder as a chronic condition.8 More critically here,
it contravenes the state policy which favors probation. Austin, 295 N.W.2d at 250. These
bare facts do not demonstrate a need for confinement which outweighs our policy favoring
probation. I would reverse and remand.

8 Biennial Report, supra, at 23.