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This opinion is nonprecedential except as provided by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
A21-1004

State of Minnesota,
Respondent,

vs.

Courtney Jean Petersen,
Appellant.

Filed March 28, 2022
Affirmed
Worke, Judge

Douglas County District Court
File No. 21-CR-11-449

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

Chad M. Larson, Douglas County Attorney, Tara J. Ulmaniec, Assistant County Attorney,
Alexandria, Minnesota (for respondent);

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

Considered and decided by Slieter, Pres iding Judge; Worke, Judge; and Halbrooks,
Judge.
*

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant argues that the district cour t abused its discretion by revoking her
probation. We affirm.
FACTS
In October 2011, appellant Courtney Jean Petersen1 pleaded guilty to two counts of
second-degree burglary. See Minn. Stat. § 609.582, subd. 2(a)(1) (2010). Petersen failed
to appear for sentencing and a warrant was issued for her arrest.
In September 2015, Petersen, now back in custody, was sentenced to concurrent
sentences of 38 and 43 months for the two second-degree burglary convictions. The district
court stayed the sentences and placed Petersen on probation for five years. As a condition
of her probation, Petersen was ordered to pay $9,115 in restitution to four victims. Petersen
agreed to a payment plan which required he r to pay $15 monthly beginning December 1,
2015.
Peterson was transferred to a South Dako ta probation program after she moved from
Minnesota to South Dakota. The additional terms of Pete rsen’s probation required her to
make monthly telephone calls to her supervisi ng agent. In 2018, Pe tersen’s supervising
agent requested an early disc harge from probation, which was denied due to Petersen’s
failure to pay any restitution. In July and August 2020, Petersen failed to report to her
scheduled appointments with her supervising agent. In August 2020, Petersen’s

1 Petersen is now known as Brown.
3
supervising agent conducted a home visit at Petersen’s recorded a ddress, found no one
present, and determined Petersen to be “an absconder.”
On August 5, 2020, a probation-violation report was submitted. The report alleged
that Petersen had only “paid $20.83 towards [the] $9,115” in restitution. On August 27, an
addendum to the report alle ged that Petersen failed to remain in contact with her
supervising agent. Another warrant was issued for Petersen’s arrest.
On September 9, 2020, the district court held a probation-revocation hearing on the
two violations alleged in the probation-violation report. Petersen failed to appear for this
hearing. The district court noted that Petersen’s file was currently on “warrant status,” and
that because of Petersen’s failure to appea r, “the warrant [would] remain active.” The
district court suspended the scheduling of an y further proceedings until Petersen was in
custody. Once Petersen was in custody, a bail hearing was held on March 25, 2021, and
the district court ordered that Petersen was to remain in custody until her probation-
revocation hearing.
On March 26, a second addendum to the pr obation-violation report alleged that
Petersen had failed to remain law abiding. The addendum alleged that from May 2020
until March 2021, Petersen had committed five felony-level offenses in South Dakota. On
May 12, a third addendum to the report confirme d the filing of three of the five criminal
charges listed in the second addendum.
On May 13, 2021, Petersen appeared for an evidentiary hearing. Petersen admitted
that she failed to stay in contact with her supervising agent due to relapsing with controlled
4
substances. Petersen denied the failure-t o-pay-restitution and failure-to-remain-law-
abiding violations.
The district court heard testimony that Petersen had made one restitution payment
in this case in the amount of $20.83 on June 11, 2020. The Minnesota Department of
Revenue (MNDOR) collected other payments from Petersen in the amount of $541.66 from
July 2018 to August 2020. None of the funds collected by the MNDOR were received by
the victims in this case.
The district court found that Petersen’s fa ilure to pay restitution was a violation of
probation due to Petersen not ma king significant efforts to re duce the restitution balance.
It also found that Petersen failed to remain in contact with her supervising agent based on
her admission, but that the state failed to meet its burden of proof for the failure-to-remain-
law-abiding violation because the additional felony charges had not been adjudicated.
The district court found that the two viol ations of probation were intentional and
inexcusable. The record indicates that the long-term pattern of criminal behavior and the
seriousness of the violations would be undul y depreciated if the sentences were not
executed. The district court revoked Peters en’s probation and executed the imposed
sentences.
This appeal followed.
DECISION
A district court may revoke probation if the probationer violates any of the probation
conditions. Minn. Stat. § 609.14, subd. 1(a) (2020). “The [district] court has broad
discretion in determining if there is sufficient evidence to revoke probation and should be
5
reversed only if there is a clear abuse of that discretion.” State v. Austin, 295 N.W.2d 246,
249-50 (Minn. 1980). “A district court abuses its discretion when its decision is based on
an erroneous view of the law or is agai nst logic and the facts in the record.” State v.
Hallmark, 927 N.W.2d 281, 291 (Minn. 2019) (quotation omitted).
Before revoking probation, a district court must: “1) designate the specific condition
or conditions that were violated; 2) find that the violation was intentional or inexcusable;
and 3) find that [the] need for confinemen t outweighs the policie s favoring probation”
(Austin factors). Austin, 295 N.W.2d at 250. In making its determination, the district court
should consider whether “(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 [the offender] is confined; or (iii) [not revoking
probation] would unduly depreciate the seriousness of the violation” ( Modtland
subfactors). State v. Modtland, 695 N.W.2d 602, 607 (Minn. 2005). Whether the district
court made the findings required for revocati on of probation is a question of law that
appellate courts review de novo. Id. at 605
Failure to pay restitution and failure to maintain contact
First, Petersen argues that there was no fa ilure to pay restituti on on her part. In
support of her argument, she presented evidence from the MNDOR showing debt payments
being collected totaling $541.66. But a review of the record shows that Petersen owes
money in other counties for criminal convictions involving other victims, and that none of
the money collected was received by the four victims in this case. The district court noted
that, “there [is] still over $9,000 due and owi ng on this file,” and th at other than making
6
one payment of $20.83, none of the restitution in this case had been paid. The district court
determined that one payment of $20.83 did not constitute an attempt to make significant
payment towards the outstanding restitution balance.
Petersen further asserts that the district court failed to make the specific finding that
the failure to pay restitution was willful. But the district court found that rather than making
restitution payments, Petersen willfully ab sconded from her probation, used illegal
controlled substances, and acquired new crimin al charges. The record also reflects
Petersen’s admission to absconding and using illegal controlled substances.
The district court did not abuse its discre tion when it determined that Petersen
intentionally and inexcusably failed to pay restitution and failed to keep in contact with her
supervising agent.
Alternative remedies
Petersen argues that the district court abused its discretion by executing the sentence
instead of imposing an alternative sanction. When an individual with a stay of execution
admits a probation violation, the district court may either cont inue the offender on
probation or revoke probation and execute the se ntence. Minn. R. Crim. P. 27.04, subd.
3(2)(b). Under Minn. Stat. § 609.14, subd. 3(1) (2020), the district court may “place the
defendant on probation or order intermediate sa nctions . . . or impose sentence and order
execution thereof.” As stated above, before revoking probation and executing a sentence,
the district court must consider the Austin factors. Specifically, the third Austin factor
requires the district court to “find that [the ] need for confinement outweighs the policies
favoring probation.” Austin, 295 N.W.2d at 250.
7
Under the third Austin factor, the probationer’s interest in freedom must be balanced
with the state’s interests in ensuring the probationer’s reha bilitation and public safety.
Modtland, 695 N.W.2d at 606-07. District courts must base their decisions “on sound
judgment and not just their will.” Id. at 607 (quotation omitted). If the district court merely
recites the factors, its findings may be inadequate; but its findings will be deemed adequate
if the district court provides “substantive reasons for revocation.” Id. at 608.
The district court has broa d discretion in determining whether there is sufficient
evidence to revoke probation. Austin, 295 N.W.2d at 249-50. Here, the district court
specifically addressed its options after cons idering Petersen’s pr obationary period was
scheduled to end on September 15, 2020, that Petersen failed to appear for hearings, and
that she was only back in custody so that an evidentiary hearing could be held for the
alleged probation violations. See Minn. Stat. § 609.14, subd. 1(c) (2020) (“The
proceedings to revoke the stay shall not be dismissed on the basis that the [revocation]
hearing is conducted after the term of the stay or after the six-month period.”). Before the
district court executed Petersen’s sentences, it considered two alternate remedies: releasing
Petersen with credit for time served and a county-jail sanction. See id., subd. 3(1) (stating
that the district court may “order intermediate sanctions . . . or impose sentence and order
execution thereof”).
The district court concluded that executing the sentences was appropriate because:
(1) Petersen admitted that she violated probation when she failed to remain in contact with
her supervising agent, (2) the state proved that Petersen vi olated probation by failing to
make significant efforts to reduce her restitution obligation, (3) Petersen absconded twice,
8
once during her probationary period, and (4) a long-term pattern of criminal behavior was
present. Therefore, the district court’s de cision to execute the se ntences was within its
“broad discretion” and was not an abuse of that discretion. See Austin, 295 N.W.2d at 249-
50.
Policies favoring probation
Petersen also argues that the district cour t abused its discretion based on the third
Austin factor. Specifically, Petersen argues that because the district court failed to
explicitly find that her need for confinement outweighed the polices favoring probation the
district court abused its discretion.
The supreme court directed district courts to consider the three Austin factors when
revoking probation and to make specific findings on each factor. Id. at 250. District courts
should also consider the Modtland subfactors in making its determination to revoke
probation. 695 N.W.2d at 607.
Here, the district court de termined that the third Modtland subfactor supported
revocation. See id. (stating that district courts should consider if its decision to not revoke
probation “would unduly depreciate the seriousness of the violation”). The district court
stated that if it did not execute the senten ces “[i]t would way u nduly depreciate the
seriousness of the violations.” The presence of only one Modtland subfactor is sufficient
to support revocation. See Goldman v. Greenwood , 748 N.W.2d 279, 283 (Minn. 2008)
(recognizing that appellate courts “normally interpret the conjunction ‘or’ as disjunctive
rather than conjunctive”).
9
In revoking probation, the district court a ppropriately balanced Petersen’s interest
in freedom and the state’s interests in insuring Petersen’s rehabilitation and public safety,
and its decision was based on sound judgment rather than just its will. See Modtland, 695
N.W.2d at 607.
Affirmed.