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This opinion is nonprecedential except as provided by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
A21-0536

State of Minnesota,
Respondent,

vs.

Darren Ray Liimatainen,
Appellant.

Filed December 6, 2021
Affirmed in part, reversed in part, and remanded
Gaïtas, Judge

Carlton County District Court
File Nos. 09-CR-18-1671, 09-CR-19-1106

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

Lauri A. Ketola, Carlton County Attorney, Carlton, Minnesota (for respondent)

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

Considered and decided by Gaïtas, Presiding Judge; Reilly, Judge; and Klaphake,
Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Darren Ray Liimatainen appeals from the district court’s revocation of
his probation in two cases. He argues that the district court failed to make the required
findings before revoking his probation and that one of his se ntences was calculated using
an incorrect criminal history score. We af firm the district court’s decision to revoke
Liimatainen’s probation. But because responde nt State of Minnesota failed to prove that
Liimatainen’s criminal history score properly included a felony po int for a prior fifth-
degree drug conviction, we reverse and remand for a new sentencing hearing.
FACTS
The state charged Liimatainen with fift h-degree possession of methamphetamine on
September 5, 2018. See Minn. Stat. § 152.025, subd. 2(1) (2018). On June 11, 2019, while
the fifth-degree drug case was still pending, Liimatainen was charged with a new offense—
third-degree possession of methamphetamine. See Minn. Stat. § 152. 023, subd. 2(a)(1)
(2018).
Liimatainen pleaded guilty in both cases1 without any agreement as to his sentence.
Following his guilty pleas, a presentence i nvestigation and sentencing worksheet was
prepared in each case. The sentencing worksheet for the third-degree offense showed that

1 Liimatainen entered an Alford plea to the fifth-degree offense. An Alford plea permits “a
court to accept a defendant’s guilty plea, even though th e defendant [maintains] his
innocence, where the St ate [demonstrates] ‘a strong factual basis for the plea’ and the
defendant clearly [expresses] his desire to enter the plea based on his belief that the State’s
evidence would be sufficient to convict him.” State v. Theis, 742 N.W.2d 643, 647 (Minn.
2007) (quoting North Carolina v. Alford, 400 U.S. 25 (1970)).
3
Liimatainen had a criminal history score of six, which included one-half point for an
April 1, 2013 fifth-degree-drug-possession conviction. At sentencing in September 2019,
the district court granted Liimatainen’s moti on for downward dispositional departures in
both cases. The district court sentenced him to 21 months for the fifth-degree offense and
57 months for the third-degree offense, stay ed execution of both prison sentences, and
placed him on probation for five years. As a condition of probation, the district court
ordered Liimatainen to enter and successfully complete drug court if accepted.
Liimatainen entered drug c ourt in December 2019 but was ultimately discharged
after less than a year due to his inability to follow program rules. His violations included
missing curfew and relapsing, skipping treatment sessions, failing to complete a treatment
program, and failing to cooperate and be trut hful with probation. Sanctions such as
community service and jail time did not impr ove his compliance with the program. In
discharging Liimatainen from drug court, probation noted concern about his commitment
to treatment, his high risk of relapse, and the hostility and toxicity of his environment to
the recovery and treatment process.
In the fall of 2020, probation filed a formal probation violation report in the district
court. Probation subsequently filed three addendums to the report that specified additional
probation violations. These mostly concerned Liimatainen’s performance in drug court,
but one addendum filed in December 2020 alle ged that Liimatainen had failed to contact
his probation agent as directed.
On January 5, 2021, the par ties appeared for a probation violation hearing in the
district court. Liimatainen waived his right to have a contested hearing. He admitted that
4
he had violated his probation by using methamphetamine and by failing to complete drug
court, and he acknowledged that the violati ons were intentional and inexcusable. In
exchange for these admissions, the state withdrew the remaining alleged violations.
The district court scheduled a separate hearing to consider a disposition for the
probation violations. At that hearing, proba tion and the state asked the district court to
revoke Liimatainen’s probation and execute his prison terms. Liimatainen requested
continued probation. After explaining its rationale on the record, the district court revoked
Liimatainen’s probation and executed his 21- and 57-month sentences.
Liimatainen appeals.
DECISION
I. The district court did not abuse its discretion in revoking Liimatainen’s
probation.

Liimatainen first argues that the district court erred in revoking his probation. “The
[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.” State v.
Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). But whether the distri ct court made the
findings required to revoke probation is a ques tion of law, which this court reviews de
novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).
In Austin, the Minnesota Supreme Court directed district courts to consider three
factors (Austin factors) before revoking probation and make specific findings on each of
these factors. Austin, 295 N.W.2d at 250. A district court must “1) designate the specific
condition or conditions that were violated; 2) find that the violation was intentional or
5
inexcusable; and 3) find th at need for confin ement outweighs th e policies favoring
probation.” Id. The third factor requires a distri ct court to further consider whether
“(i) confinement is necessary to protect th e public from further cr iminal 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.” Id. at 251. District courts must clearly address
the three Austin factors and not merely recite them or give “general, non-specific reasons
for revocation.” Modtland, 695 N.W.2d at 608.
Liimatainen challenges the district court’s decision on the third factor. Specifically,
he argues that the district court failed to explicitly find that th e need for confinement
outweighed the policies favoring probation and thereby abused its discretion.
Before pronouncing its disposition for the probation violations, the district court
observed that Liimatainen was given both “t he benefit of a [downward dispositional]
departure” and the “support of a treatment cour t.” The district court stated that, as a
treatment-court participant, Liimatainen had opportunities to address his chemical use and
mental-health challenges but squandered them . Although Liimatainen claimed he was
ready for change, the district court did not fi nd him to be credible. It noted the multiple
violations and observed “it simply does not ap pear to the Court that keeping you on
probation is going to result in any change in the situation.” The district court stated that
allowing Liimatainen to remain on probation would diminish both the seriousness of his
offenses and the significance of the senten cing judge’s decision to depart from the
sentencing guidelines. While the district court acknowledged that prison “may not get
6
[Liimatainen] better,” his sentences would allo w him to achieve a significant period of
sobriety. Finally, the district court found th at “confinement is necessary to protect the
public from further criminal activity” and “ it would only depreciate the seriousness of
defendant’s probation if it is not revoked.”
As Liimatainen points out, the district court did not state that the need for
confinement outweighs the policies favoring continued probation. See Austin, 295 N.W.2d
at 250. But the supreme court has cautione d that merely parroting the language of the
Austin factors without performing any r eal analysis is insufficient. See Modtland, 695
N.W.2d at 608.
We can see from the district court’s re marks that it did conduct a meaningful
analysis of the third Austin factor. It addressed the substantial break Liimatainen received
and his failure to avail himself of opportunities to succeed on probation. And it considered
the value of continuing Liimatainen’s probat ion, concluding that his limited compliance
and continued drug use made his prospects of success slim. On the other hand, the district
court listed the myriad considerations supporting incarceration, including the
considerations articulated in the Austin decision. Ultimately, it concluded that these
considerations outweighed an y possible benefit of contin ued probation. Given this
analysis, we conclude that the district court appropriately considered whether the need for
confinement outweighed the policies favoring probation.
2

2 Liimatainen relies on several nonprecedential opinions where this court reversed based
on insufficient consideration of the third factor. But we are not bound by nonprecedential
opinions. See Jackson ex rel. Sorenson v. Options Residential, Inc., 896 N.W.2d 549, 553
(Minn. App. 2017) (stating “we are bound by precedent established in the supreme court’s
7
Liimatainen argues that, even if the dist rict court’s analysis was sufficient, the
record does not support its de terminations. He first conte nds that his conduct does not
threaten public safety because he is merely a drug user. However, given that Liimatainen’s
continued use of illegal drugs violates crimin al laws, the district court was within its
discretion to conclude that he poses a public-safety concern.
Liimatainen also argues that because th e district court had the ability to impose
intermediate sanctions in lieu of prison time, the record does not support the district court’s
determination that continued probation woul d unduly depreciate th e significance of his
violations. The record shows that Liimat ainen was given numer ous opportunities to
comply with probation, including sanctions of community service and jail time. These
sanctions—and the threat of further intermedia te sanctions—did not result in probation
compliance. Thus, the district court did no t abuse its discretion in determining that
continued probation would depreciate the seriousness of the violations.
Finally, Liimatainen argues that the distri ct court’s decision to revoke his probation
failed to account for his mental-health challenges. The district court did address his mental-
health struggles. Ultimately, however, Liimatainen’s probation violations were all related
to his drug use. The district court did not abuse its discretion in determining that
Liimatainen required a correctional setting to a ddress that problem. This was a decision
within the district court’s discretion.

opinions and our own published opinions”). Nonetheless, we have reviewed the cases cited
and conclude that they are factually di stinguishable from the circumstances in
Liimatainen’s case.
8
Liimatainen was given multip le chances to address his drug addiction and comply
with probation. He receive d a downward dispositional de parture from the sentencing
guidelines. He was accepted into drug court. He was provided with the opportunity for
drug treatment. Drug court was forgivi ng of Liimatainen’s initial challenges, but
ultimately discharged him because he would not comply with the program and sanctions
were not working. As Liimatainen note s, prison should be a last resort. Austin, 295
N.W.2d at 250. But here, the district court concluded that there were no other options for
Liimatainen. Because the district court cond ucted the appropriate an alysis, the district
court’s ultimate decision to revoke Liimatainen’s probation was not an abuse of discretion.
II. The state failed to establish that a 2013 drug conviction was properly
included in Liimatainen’s criminal history score when he was sentenced for
the third-degree drug conviction.

Liimatainen challenges his 57-month sentence for the third-degree drug conviction,
arguing that his 2013 conviction for a fifth-de gree drug offense was improperly included
as a felony offense in his criminal history score. Any “sentence based on an incorrect
criminal history score is an illegal sentence” requiring resentencing. State v. Maurstad ,
733 N.W.2d 141, 147 (Minn. 2007); State v. Provost, 901 N.W.2d 199, 202 (Minn. App.
2017). The state has th e burden of establishing the defe ndant’s criminal history score.
State v. Maley, 714 N.W.2d 708, 711 (Minn. App. 2006).
As noted, Liimatainen’s criminal history score for the third-degree offense included
one-half point from a 2013 conviction for a fifth-degree drug offense. Felony points from
a prior conviction may only be included in a defendant’s criminal history score if the prior
conviction was punishable as a felony under Minnesota law at the time of the new offense
9
being sentenced. Minn. Sent. Guidelines 2.B. 7.a (2018). “The classification of a prior
offense as a petty misdemeanor, misdemeanor, gross misdemeanor, or felony is determined
by current Minnesota offense definitions (s ee Minn. Stat. § 609.02, subds. 2-4a) and
sentencing policies.” Minn. Se nt. Guidelines 2.B.7.a. Add itionally, “[t]he severity level
ranking in effect at the time the current offense was comm itted determines the weight
assigned to the prior offense.” Minn. Sent. Guidelines 2.B.1 (2018).
The 2016 Drug Sentencing Reform Act (DSRA) took e ffect on August 1, 2016.
2016 Minn. Laws, ch. 160. As a result of the DSRA, fifth-degree drug offenses that were
previously felonies became gr oss misdemeanor crimes so lo ng as the defendant did not
have a prior qualifying drug o ffense and possessed “less than 0.25 grams or one dosage
unit or less” of drugs other than heroin, or “l ess than 0.05 grams” of heroin. Minn. Stat.
§ 152.025, subd. 4(a) (2018); see, e.g., Minn. Stat. § 152.025, subd. 2 (2014).
In State v. Strobel, the defendant argued that a 201 2 fifth-degree drug offense was
improperly included as a felony in his crimin al history score because the state failed to
establish that the 2012 co nviction would have been a felony—and not a gross
misdemeanor—at the time of the offense to be sentenced, which occurred after the effective
date of the DSRA. 932 N.W.2d 303, 306 (Minn. 2019). The supreme court agreed. Id. at
307-10. Because the state did not prove the weight of the drugs involved in the 2012 fifth-
degree offense, the conviction could not be treated as a felony in calculating the defendant’s
criminal history score. Id.
Liimatainen argues that his criminal hi story score for his third-degree drug
conviction improperly included one-half point from his 2013 fifth-degree drug conviction.
10
He contends that his sentence should be reversed and remanded because the state failed to
prove that the fifth-degree drug conviction would have been a felony offense if committed
at the time of the current third-degree drug offense.
The record does not establis h that Liimatainen’s 2013 fi fth-degree drug offense
would have been a felony afte r the enactment of the DSRA. 3 Thus, we cannot conclude
that the state met its burden of proving that the 2013 offense should be treated as a felony.
But because Liimatainen did not challenge his criminal-history score in the district court,
the state should have an opportunity to meet its burden. See State v. Outlaw, 748 N.W.2d
349, 356 (Minn. App. 2008). rev. denied (Minn. July 15, 2008) (stating “on remand, [the
state] is permitted to further develop the sentencing record so that the district court can
appropriately make its determination”). We therefore reverse Liimatainen’s sentence for
his third-degree drug conviction and remand to the district court. On remand, the state
should be allowed to develop the record regarding the 2013 fifth-degree drug offense. And
if the state fails to satisfy its burden of esta blishing that the 2013 conviction should be
treated as a felony, Liimatainen must be resentenced.
Affirmed in part, reversed in part, and remanded.

3 The inclusion of the 2013 conviction resulted in a criminal history score of 6 rather than
5. With a criminal history score of 5, th e presumptive sentence for Liimatainen’s current
third-degree controlled substance offense wo uld have been 51 months instead of 57
months. Minn. Sent. Guidelines 4.C (2018) (showing presumptive sentence lengths for
most felony offenses involving controlled substances).