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This opinion is nonprecedential except as provided by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
A20-0782

State of Minnesota,
Respondent,

vs.

Efrem Andre Jackson,
Appellant.

Filed January 4, 2021
Affirmed
Larkin, Judge

Stearns County District Court
File No. 73-CR-18-6373

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

Janelle P. Kendall, Stearns County Attorney, River D. Thelen, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Johnson, Judge; and Bjorkman,
Judge.

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NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges the district court’s revocation of h is probation, arguing that
the court failed to find that his probation violations were intentional or inexcusable and that
the record does not support the court’s finding that the need for confinement outweighed
the policies favoring probation. We affirm.
FACTS
The state charged appellant Efrem Andre Jackson with two counts of domestic
assault and one count of making terroristic threats. The state sought an aggravated sentence
based on Jackson’s status as a “career offender. ” See Minn. Stat. § 609.1095, subd. 4
(2016) (permitting increased sentence s for certain repeat offenders). Jackson pleaded
guilty to one count of domestic ass ault and admitted that he was a career offender. T he
remaining charges were dismissed.
In September 2019, the district c ourt sentenced Jackson to 40 months in prison, an
upward durational departure, but stayed execution of the sentence, a downward
dispositional departure. The district court placed Jackson on probation for five years under
certain conditions, including that he refrain from the use of controlled substances, submit
to random testing, and comply with the rules of probation.
In November 2019, Jackson violated the terms of his probation by using
methamphetamine and cocaine. The district court imposed an intermediate sanction of 15
days in jail, with a portion of that sanction conditionally stayed.

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In December 2019, Jackson violated the terms of his probation a second time by
using methamphetamine and cocaine and by failing to attend a scheduled meeting with his
probation agent. The district court imposed an intermediate sanction of 60 days in jail,
with a portion of that sanction conditionally stayed.
In February 2020, Jackson violated the terms of his probation a third time by using
methamphetamine and c ocaine and by failing to contact his probation agent as required.
The district court held a probation -revocation hearing. Jackson admitted that he had
violated the terms of his probation as alleged. He also admitted that the violations were
“either intentional or were inexcusable.” The district court accepted Jackson’s admissions.
Jackson’s probation agent recommended that Jackson be afforded “one additional
opportunity to address his chemical dependency within the community,” but the agent
noted “significant concern” over Jackson’s relapses, including concern for public safety
based on Jackson’s history of violent behavior when he uses controlled substances. The
state recommended that Jackson’s probation be revoked based on his multiple probation
violations.
The district court revoked Jackson’s probation and ordered him to serve his 40-
month prison sentence. The district court explained its decision to revoke as follows:
I do agree with your attorney . . . that your conduct —now a
third probation violation —has put all of us in a very
challenging position.

There was a presumptive commit in this case . . . , and I
gave you an opportunity to demonstrate . . . that you were
amenable to probation. I think the attorneys are very smart [in]
that they know I have a soft spot in my heart for vets. . . .

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I wanted you to succeed, but this is the third probation
violation in less than six months. And as your attorney
suggested, actions do speak louder than words. I do believe
you were provided a wake -up call on December 16, 2019, at
your second probation violation hearing when [the prosecutor]
made it abundantly clear she would be pursuing execution of
your sentence.

I do think that the [s]tate has met the Austin Factors by
your failing to abstain. And I’m not saying necessarily that it
was voluntary, that you —I ju st don’t think you can abstain.
And I don’t think you can succeed on probation in the
community because you have demonstrated over the last five
months that you’re not able to do so. I do think the need for
confinement outweighs the policy favoring proba tion in this
case.

I do think . . . when you are not sober, you are an angry
person, and that puts the public at risk. But most important, I
think the need for correctional treatment can best be provided
and ensured if you are confined.

I also believe t hat given this is the third
violation[,] . . . and I gave you a . . . dispositional departure[,]
to not revoke . . . would undermine the severity.

Jackson appeals.
DECISION
“The [district] court has broad discretion in determining if there is sufficien t
evidence to revoke probation and should be reversed only if there is a clear abuse of that
discretion.” State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). Before a district court
revokes a defendant’s probation, it “must (1) designate the specific condition or conditions
that were violated; (2) find that the violation was intentional or inexcusable; and (3) find
that need for confinement outweighs the policies favoring probation.” Id. at 250. We

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review de novo w hether a district court made the requ ired Austin findings. State v.
Modtland, 695 N.W.2d 602, 605 (Minn. 2005).
I.
Jackson contends that the district court erred by revoking his probation because it
did not find that his probation violations were “intentional and inexcusable.” Jackson cites
State v. Fritsche, 402 N.W.2d 197 (Minn. App. 1987), for the proposition that a violation
must be intentional. Although Fritsche states that a violation must be intentional, the
holding actually states “intentional or inexcusable.” 402 N.W. 2d at 198, 201 (emphasis
added); see Modtland, 695 N.W.2d at 606 (“Once a court has made findings that a violation
has occurred and has found that the violation was either intentional or inexcusable , the
court must proceed to the third Austin factor . . . .” (emphasis added)); see also Goldman
v. Greenwood , 748 N.W.2d 279, 283 (Minn. 2008) (stating “we normally interpret the
conjunction ‘or’ as disjunctive rather than conjunctive”). We therefore consider whether
the district court adequately found that Jackson’s violations were intentional or
inexcusable.
District courts must make Austin findings to assure the creation of “thorough, fact -
specific records setting forth [the] reasons for revoking probation.” Modtland, 695 N.W.2d
at 608. In making the findings, district courts “are not charged with merely conforming to
procedural requirements; rather, courts must seek to convey their substantive reasons for
revocation and the evidence relied upon.” Id. District courts “should not assume that they
have satisfied Austin by reciting the three factors and offering general, non-specific reasons

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for revocation, as it is not the role of appellate courts to scour the record to determine if
sufficient evidence exists to support the district court’s revocation.” Id.
Here, the district court expressly found that the Austin factors were satisfied based
on Jackson’s use of controlled substances while on probation. Specifically, the court found
that Jackson repeatedly violated the terms of his probation and that he was apprised of the
potential for revocation at his second probation -violation hearing. Jackson admitted that
his violations were “either intentional or were inexcusable,” and the district court accepted
that admission. Although the district court stated that the violations were not “necessarily”
voluntary, that statement is not inconsistent with a finding that the violations were
intentional or inexcusable.
Given Jackson’s admission, the district court’s express finding that the Austin
factors were satisfied, and the district court’s explanation as a whole, we conclude that the
district court’s findings adequately addressed the second Austin factor.
II.
Jackson also contends that the district court erred by revoking his probation because
the need for confinement does not outweigh the policies favoring probation. Once a district
court finds an intentional or inexcusable violation of a specific probationary condition, it
must “determine whether the need for confinement outweighs the policies favoring
probation.” Id. at 606 . In doing so, t he district court “must balance the probationer’s
interest in freedom and the state’s interest in insuring his rehabilitation and the public
safety.” Id. at 606-07 (quotation omitted). The district court must bear in mind that “the
purpose of probation is rehabilitation and revocation should be used only as a last resort

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when treatment has failed.” Id. at 606 (quotation omitted). In deciding whether to revoke
probation, a district court should consider whether “confinement is necessary to protect the
public from further criminal activity by the offender ,” “the offender is in need of
correctional treatment which can most effectively be provided if he is confined ,” or “it
would unduly depreciate the seriousness of the violation if probation were not revoked.”
Id. at 607 (quotations omitted).
The district court considered whether confinement was necessary to protect the
public. It echoed the opinion of Jackson’s probation agent that Jackson is “an ang ry
person” when he is not sober and that his lack of sobriety puts the public at risk. Jackson’s
presentence-investigation report noted Jackson’s “extensive, violent cr iminal history.”
Jackson stresses that his probation agent recommended continued probation. But that same
agent noted “significant c oncern” regarding Jackson’s relapses and Jackson’s history of
violent behavior when he uses controlled substances.
The district court also considered whether Jackson was in need of correctional
treatment and stated that treatment could best be provided and ensured if he were confined.
Jackson asserts that the record does not support such a finding. He argues that “[t]here was
nothing in the record to support the court’s finding that correctional based treatment would
be more effective than community -based treatment.” That argument is undercut by
Jackson’s continued use of controlled substances while on probation despite his enrollment
in community -based treatment programs. The record indicates that Jackson at tempted
dual-diagnosis chemical-dependency treatment in the past and was enrolled in community-
based chemical-dependency treatment at the ti me of the current violations. Yet, he was

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still unable to maintain sobriety. Given the circumstances, including three probation
violations in less than six months for controlled -substance use despite attempts at
community-based treatment, it was reasonab le for the district court to conclude that
Jackson could not succeed on probation in the community. See Austin, 295 N.W.2d at 248,
251 (affirming revocation stating, “it was not unreasonable to conclude that treatment had
failed” because the defendant had been “offered treatment” but “failed to take advantage
of the opportunity or to show a commitment to rehabilitation”).
Lastly, the district court considered whether not revoking probation would unduly
depreciate the seriousness of the violations and concluded that it would . In doing so, the
court noted that Jackson’s conviction “was a presumptive commit.” A district court may
consider an underlying downward dispositional departure when deciding whether to revoke
probation. State v. Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015), aff’d, 883 N.W.2d
790 (Minn. 2016) . In sum, the district court did not err by finding that the need for
confinement outweighed the policies favoring probation.
Having concluded that the district court complied with the requirements of Austin,
we affirm.
Affirmed.