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This opinion is nonprecedential except as provided by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
A21-0276

State of Minnesota,
Respondent,

vs.

Robert Leake,
Appellant.

Filed November 1, 2021
Affirmed
Slieter, Judge

Stearns County District Court
File No. 73-CR-18-8107

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

Janelle P. Kendall, Steans County Attorney, Brianna K. Long, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Pres iding Judge; Worke, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this appeal from the district court’s order revoking his probation, appellant argues
that the district court abused its discretion because it made insufficient findings to conclude
that the need for his confinement outweighed the policies favoring continued probation.
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Because the district court made specific find ings, which are supported by the record, that
it would unduly depreciate the seriousness of the violation if probation were not revoked,
we affirm.
FACTS
Appellant Robert Leake pleaded guilty to felony driving while impaired (DWI)
chemical-test refusal in January 2020, his seventh DWI. At sentencing, the district court
granted appellant’s request for a downward dispositional departure, stayed execution of a
64-month prison sentence, and placed appellant on supervised probation for seven years.
Among his probation conditions, appellant was ordered to abstain from the use of alcohol,
as well as all mood-altering chemicals, and submit to testing for such use.
Soon after sentencing, appellant’s probation agent reported to the district court that
appellant violated his probation by failing to submit to alcohol testing on two consecutive
days and subsequently tested positive for alcohol. Appellant appeared in court, waived his
right to a contested hearing, and admitted the violations. Appellant requested that the
district court impose an intermediate sanction of 57 days in jail, which he already served,
and allow him to remain on probation. The state sought revocation of probation and
execution of the stayed prison sentence.
The district court found that appellant had committed the violations and, after
accepting testimony and arguments with respect to di sposition, revoke d appellant’s
probation and executed his 64-month prison sentence. This appeal follows.

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DECISION
Appellant argues that the district court abused its discretion in revoking his
probation because the district court failed to make the required findings that the need for
confinement outweighs the policies favoring probation.
“The [district] court has broad discreti on in determining if there is sufficient
evidence to revoke probation and should be reve rsed only if there is a clear abuse of that
discretion.” State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). To revoke probation,
a district court must find that (1) the probationer violated a specific condition of probation;
(2) the violation was intentional or inexcu sable; and (3) the ne ed for confinement
outweighs the policies favoring continued probation. Id. at 250; see also State v. Modtland,
695 N.W.2d 602, 608 (Minn. 2005) (explaining that the dist rict court must make specific
findings on all three Austin factors to revoke probation). Appellant only challenges the
district court’s findings on the third Austin factor. We review whether a district court made
the required Austin findings de novo. Modtland, 695 N.W.2d at 605.
In addressing the third Austin factor, the supreme court has directed district courts
to “balance the probationer’s in terest in freedom and the stat e’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 when treatment has failed.” Id. at 606 (quotatio n omitted). In
deciding whether to revoke probation, a district court should consider whether
(i) confinement is necessary to protect the public from
further criminal activity by the offender; or
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(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.

Id. at 607 (quotation omitted).
The district court made sufficient findings regarding the third Modtland subfactor
to support its decision to rev oke appellant’s probation. The district court found that
appellant disregarded his probation “almost from the get-go” and “then basically continued
to blow off probation” resulting in him faili ng to submit to two alcohol monitoring tests
and failing to abstain from alcohol. It was “very clear” appellant was “ordered to abstain”
from alcohol as this was “a fe lony DWI. . . . Fortunately, [appellant is] not here on a
violation regarding any new [DWI] offenses, but it is a public safety concern.” The district
court concluded that appellant is “not amenable to probati on” in part because he was
offered treatment but did not ta ke advantage of it until it appe ared that he might go to
prison. The district court also found that be cause appellant violated the order to abstain
from the use of alcohol, “to do anything other than [execute his] sentence would tend to
diminish the seriousness of the violation.”
Appellant argues, citing Modtland, that the district court simply recited the three
Austin factors and offered general non-specific re asons for the revocation. We disagree.
As the record demonstrates, the district c ourt made detailed findings regarding the third
Modtland subfactor and, consequently, satisfied the third Austin factor. Therefore, the
district court did not abuse its discretion.
Affirmed.