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This opinion will be unpublished and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
A20-0625

State of Minnesota,
Respondent,

vs.

Terrance Trevelle Hill,
Appellant.

Filed December 14, 2020
Affirmed
Gaïtas, Judge

Dakota County District Court
File No. 19HA-CR-13-520

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

James C. Backstrom, Dakota County Attorney , Anna Light, Assistant County Attorney,
Hastings, Minnesota (for respondent)

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

Considered and decided by Connolly, Pr esiding Judge; Reyes, Judge; and Gaïtas,
Judge.
U N P U B L I S H E D O P I N I O N
GAÏTAS, Judge
Appellant Terrance Trevelle Hill argues that the district court abused its discretion
in revoking his probation and ex ecuting his prison sentence. He challenges the district

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court’s findings under each of the three probation-revocation factors from State v. Austin,
295 N.W.2d 246, 250 (Minn. 1980), arguing that (1) the district court relied on unnoticed
violations to find that he violated conditions of probation, (2) there was insufficient proof
that the violations were intentional or inexcusable, and (3) there was insufficient proof that
the need for confinement outweighed the policies favoring probation. Because the district
court made detailed factual findings on the three Austin factors on remand from this court,
and the record supports those findings, we conclude that the district court did not abuse its
discretion in revoking Hill’s probation. We affirm.
FACTS
In February 2013, respondent State of Mi nnesota charged Hill wi th two counts of
first-degree criminal sexual conduct with a person under the age of 13, Minn. Stat.
§ 609.342, subd. 1(a) (2004). A jury trial resulted in a hung jury. Following the mistrial,
Hill entered into a plea agreemen t with the state. He pleade d guilty to one count of first-
degree criminal sexual contact with a person u nder age 13. The district court granted the
parties’ joint request for a downward di spositional departure from the sentencing
guidelines, staying execution of a 187-month prison sentence and placing Hill on probation
for 15 years. As bases for the departure, the district court cited Hill’s particular amenability
to probation and willingness to participate in sex-offender treatment.
In June 2016, Hill admitted to violating the conditions of his probation by failing to
complete sex-offender treatme nt and by failing to submit to urinalysis tests. As a
consequence, the district court ordered Hill to serve 30 days in jail but reinstated his
probation with the same cond itions. At a hearing in Apr il 2018, Hill admitted to again

3
violating his probation by faili ng to complete sex-offender treatment and by using illegal
drugs. The district court directed Hill to se rve 120 days in jail a nd again reinstated his
probation with the same terms.
In November 2018, the state alleged that Hill had violated his probation for a third
time, and there was another probation-revocation hearing. The state identified five alleged
violations: failing to submit to urinalysis tests, failing to abstain from the use of illegal
drugs, failing to enter inpatient chemical-d ependency treatment, failing to complete sex-
offender treatment, and failing to maintain cont act with probation. At the hearing, Hill
admitted to all five of the alleged violati ons. Then, the parties argued regarding the
appropriate consequence for the violations. The state sought execution of the stayed prison
sentence. Hill requested continued probation. The district court revoked Hill’s probation,
executed his prison sentence, and imposed a ten-year conditional release.
On appeal, we determined that the district court’s findings on the second and third
Austin factors—whether Hill’s probation violations had been intentional or inexcusable
and whether the need for co nfinement outweighed the policies favoring continued
probation—were insufficient to support the revocation of Hill’s probation. See State v.
Hill, No. A19-0313, 2019 WL 5107465, at *4-5 (Minn. App. Oct. 14, 2019). We reversed
and remanded, instructing the district court to make additional findings. Id. at *5.
Following remand, the parties appeared before a newly assigned district court judge
for a probation-revocation hearing.1 Both the state and Hill agreed that the district court’s

1 Between the appeal and remand, the original district court judge retired. At the revocation
hearing, the district court also granted a re quest by Hill to reduce his prison term because

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focus would be the second and third Austin factors, which had prompted the remand.
Regarding the first Austin factor—the conditions violated—the parties and the district court
made clear that Hill’s admissions during the November 2018 hearing to five separate
probation violations would stand and would continue to serve as the bases for the state’s
revocation request. Then, with no objecti on from Hill, the state called Hill’s probation
officer as a witness to supple ment the record on the two fact ors to be considered by the
district court on remand. According to th e probation officer, Hill was not amenable to
probation. She recommended revocation of his probation.
After the hearing, the district court issued a nine-page order, which included detailed
factual and legal findings and concluded that revocation of Hill’s probation was necessary.
The district court relied on Hill’s admissions during the November 2018 hearing as the
bases for the violations. As to the second Austin factor, the district court determined that
the violations were intentional and without mitigating excu se because Hill had explained
that: (i) he failed to appear for random test ing because he was working; (ii) he tested
positive for THC after eating “candy”; (iii) he was discharged from an outpatient chemical-
dependency treatment program because the providers believed inpatient treatment was
required; (iv) he started sex-offender trea tment on two occasions, but had not finished
because the treatment professionals belie ved chemical-dependency treatment was
necessary first; and (v) although he had a ttended many appointments with his probation
officer, he failed to appear at some appointments. The district court concluded that Hill’s

Hill was charged for conduct th at spanned a range of date s during which changes were
made to the sentencing guidelines.

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“explanation[s] [did] not rise to mitiga ting excuses,” though, because the evidence
suggested that Hill understood hi s probationary requirements, that he was assisted by an
experienced probation officer who understood his chemical abuse, financial situation, and
other impediments, and that he continued to violate proba tion even after significant jail
sanctions. Regarding the third Austin factor, the district court found that Hill’s actions,
“particularly his unwillingness and/or inability to comply w ith probation services,” show
that community-based programming is “no longer appropriate” and the need for
confinement outweighs the policies favoring pr obation. The district court accordingly
revoked Hill’s stay of execution and ordered that he serve his prison sentence.
Hill appeals.
D E C I S I O N
To revoke a criminal defendant’s probation, a district court must make the following
three findings: (1) the defendant violated a specific condition or conditions of probation,
(2) the violation was intentional or inexcu sable, and (3) the “need for confinement
outweighs the policies favoring probation.” Austin, 295 N.W.2d at 250. These findings,
which the Minnesota Supreme Court identified in the Austin case, are known as the Austin
factors. See id.
In State v. Modtland, the supreme court further held that when making findings on
the three Austin factors, district courts “must seek to convey their substantive reasons for
revocation and the evidence relied upon.” 6 95 N.W.2d 602, 608 (Min n. 2005). In other
words, a district court should not merely cite the three factors or offer only general,
nonspecific reasons for revoking probation. Id.

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Hill contends that the district court’s findings on the Austin factors are inadequate,
and therefore, the revocation of his probation was unlawful. A district court “has 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.” Austin, 295 N.W.2d at 249-50.
But whether the district court made the findin gs required for revocation of probation is a
question of law, which we review de novo. Modtland, 695 N.W.2d at 605.
Hill argues that the district court’s fi ndings on the first factor—designating the
conditions violated—are based on alleged violations that were not noticed or found before
the remand, implicating his constitutional right to due process. For example, Hill contends,
the district court’s order references the pr obation officer’s testim ony at the hearing on
remand that Hill had been dis honest with her abou t where he was living. Yet the state
never provided Hill with notice of this alleged violation, and he did not admit to it.
The district court’s order revoking probation does reference the probation officer’s
testimony, which the state used to supplement the record for the purpose of the remand.
But the district court did not rely on the testimony to find that Hill had committed new,
unnoticed probation violations. Instead, the di strict court found that Hill’s admissions at
the November 2018 hearing established by clear and convincing ev idence that he had
violated five specific conditions of his proba tion: that he failed to submit to random
urinalysis testing, failed to abstain from the use of illegal drugs, failed to enter inpatient
chemical-dependency treatment, failed to comple te sex-offender treatment, and failed to
maintain contact with probation. These findings, which mirror Hill’s admissions to

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violations that were noticed before the November 2018 hearin g, satisfy the first Austin
factor by designating the particular conditions violated.
Hill next argues that the district court abused its discretion because the record does
not support the conclusion that Hill’s violati ons were intentional or inexcusable. The
second Austin factor requires a district court to find that a violation was inexcusable or
intentional before revoking probation. Id. at 606. A violation may be excusable where
there are “extenuating circumstances.” See State v. Johnson, 679 N.W.2d 169, 177 (Minn.
App. 2004). Hill argues that because his pr ogress in treatment was stymied by a housing
issue and a program that could not meet his ne eds, his failure to co mplete treatment was
not intentional or inexcusable.
In finding that Hill violated his proba tion intentionally an d without mitigating
excuse, the district court acknowledged the explanations that Hill provided during the 2018
hearing. But citing to the probation officer’s supplemental testimony, the district court
went on to find:
[Hill] had the support of an experienced probation
officer who was patient with his multitude of issues, including
housing instability, financial pre ssures, chemical abuse, and
the need for sex offender treat ment. He fully understood the
community based programming options available to him. Yet,
[Hill] continued to violate his pr obation. The violations were
repeated, following a significant jail sanction for same/similar
violations. The violations were unquestionably intentional.
The Court carefully considered [Hill’s] explanations for the
violations. [Hill’s] explanati on does not rise to mitigating
excuses.

Because the district court found that the violations were intentional, and explained the basis
for this conclusion, the district court’s findings on the second Austin factor were sufficient.

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Finally, Hill argues that the district cour t abused its discretion because the record
does not support the conclusi on that the need for confin ement outweighed the policies
favoring probation. He points out that the district court’s findings suggest that the
revocation was “reflexive,” based on the nature of the underlying se x offense rather than
the violations themselves or the availability of intermediate sanctions.
In considering the third Austin factor, a district court must be mindful that the
purpose of probation is rehabilitation, an d revocation should be a last resort. Modtland,
695 N.W.2d at 606. But 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).
Here, the district court’s findings illustrate how the court balanced Hill’s interest in
remaining in the community and the state’s in terest in ensuring Hill’s rehabilitation and
public safety. The district court found that Hill’s actions, “particularly his unwillingness
and/or inability to co mply with probation services,” indicated that community-based
programming was “no longer appropriate” a nd the need for confinement outweighed
competing policies favoring prob ation. Given Hill’s failure to succeed in community-
based programs, the district court noted that treatment in confinement would be more
effective. Based on Hill’s discharge from various programs , his inability to sign on for

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inpatient treatment, and his history of failing to comply with the terms of his probation, it
was not unreasonable for the district court to conclude that community-based treatment
had failed and that confinement was necessary. See Austin, 295 N.W.2d at 251 (stating
that when a person “has been offered treatm ent but has failed to take advantage of the
opportunity or to show a comm itment to rehabilitation[,] . . . it [is] not unreasonable to
conclude that treatment ha[s] failed”).
The district court also considered whether continued probation would depreciate the
seriousness of the probation viol ation. In addressing this subfactor, the district court
observed that continued probation would unduly depreciate the seriousness of the violation
because Hill’s probation resulted from a downward dispositional sentencing departure. See
State v. Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015) (stating that, in deciding
whether to revoke probation, a district court may consider the fact that the defendant
received a downward dispositional departure), aff’d, 883 N.W.2d 790 (Minn. 2016). The
district court’s findings were therefore sufficient to satisfy the third Austin factor.
In a well-written and thorough order, the district court made detailed findings on the
Austin factors and explained how the facts supported those findings. The district court did
not abuse its discretion in revoking Hill’s probation. See Modtland, 695 N.W.2d at 608.
Affirmed.