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This opinion is nonprecedential except as provided by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
A21-1131

State of Minnesota,
Respondent,

vs.

Brent Robert Stern,
Appellant.

Filed April 25, 2022
Affirmed
Connolly, Judge

Cottonwood County District Court
File No. 17-CR-13-211

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

Nicholas A. Anderson, Cottonwood County Attorney, Windom, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik L. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant argues that the district court abused its discretion by revoking his
probation and executing his stayed sentence for second-degree controlled-substance crime
because the state did not prove that appellant violated a condition of his probation by failing
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to complete treatment and the record does not support the finding that the n eed for
appellant’s confinement outweighs the need for his probation. Because we see no abuse
of discretion in the revocation of appellant’s probation, we affirm. 1
FACTS
Following his conviction of second -degree controlled -substance crime, appellant
Brent Stern was sentenced to 129 months in prison. The execution of that sentence was
stayed, and he was placed on probation. This was a dispositional departure: appellant’s
presumed sentence was commitment due to his “extensive criminal history and extens ive
criminal felony history.” Conditions of his probation included abstaining from the use of
all mood -altering chemicals and completing the recommendations of a chemical -use
assessment.
Probation-violation hearings were held in February and March of 201 6; appellant
was convicted of another felony offense in January 2017; a sanctions conference was held
in February 2018; another probation violation hearing was held in December 2019, at
which appellant was ordered to comply with and complete a drug court program.
At a probation violation hearing in August 2020, appellant told the drug court judge
that his sweat patch, a device that tests drug abuse by being worn on the skin and absorbing
the sweat excreted over a period of time, tested positive for methamp hetamine because he
had had sexual relations with a woman who was under the influence of methamphetamine.

1 Because respondent the State of Minnesota did not file a brief or move for an extension,
this matter is proceeding under Minn. R. Civ. App. P. 142.03 (providing that, when
respondent fails to file a brief, the case is to be determined on the merits).
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The drug court judge told appellant that his explanation for the positive test was not
believable or possible and that he could not continue in the dr ug court program if he was
not honest.
In April 2021, appellant’s sweat patch from March 30 to April 13 tested positive
for methamphetamine. Appellant denied using drugs and said he did not know why his
sweat patch tested positive. He was terminated fr om the drug court program and
transferred to a different district court judge for a probation-revocation hearing.
At that hearing in June 2021, appellant’s probation officer testified that appellant
had failed to complete the aftercare program, to abstain from the use of mood -altering
chemicals, and to successfully complete the recommendations of the chemical use
assessment. The probation officer stated that he did not believe appellant “was amenable
to probation at this time.” Appellant testified, agai n, that his August 2020 positive sweat
patch was the result of a relationship with a woman who tested positive for drugs. He also
testified that he did not know why his April 2021 sweat patch came back positive, but said
it might have been the result of his sitting next to meth users with whom he shared books.
The district court rejected appellant’s explanations for the positive tests in August
2020 and April 2021 and found that (1) appellant failed to complete and was terminated
from the drug court pr ogram, (2) his termination was the result of his failure to abide by
the rules of the program, and (3) both his denial of use and his testimony about why the
patch was compromised were unpersuasive and were not credible.
Appellant’s probation was revoked, and he challenges that revocation.

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D E C I S I O N
“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). Before revokin g
probation, a district court must: “(1) designate the specific condition or conditions of
probation that were violated, (2) find that the violation was intentional or inexcusable, and
(3) find that the need for confinement outweighs the policies favoring probation.” Id. at
250 (the Austin factors). Appellant argues that the district court failed to meet the first and
third factors.
1. Specific Probation Condition Violated
As the district court pointed out at the hearing, the standard of proof for a probation
violation is not proof beyond a reasonable doubt but clear and convincing evidence. See
Minn. R. Crim. P. 27.04, subd. 2(1)(c) (providing that a probationer must be told of his
right to “a revocation hearing to determine whether clear and convincing evidence of a
probation violation exists”).
Appellant was alleged to have violated three probation conditions: (1) complete the
drug court program, a condition imposed on December 31, 2019; (2) abstain from the use
of all mood-altering chemicals, a condition imposed in February 2014 and later reimposed;
and (3) complete the recommendations of the chemical use assessment, also a condition
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imposed in February 2014. He does not challenge the decision that he violated the second
and third conditions.2
As to the first condition, the drug court judge who terminated appellant from the
program said that he “failed to abide by the rules of the . . . [d]rug [c]ourt [p]rogram,” he
“received every service, every support, and every training and education that is av ailable
from the [d]rug [c]ourt team’; “. . . these efforts [were] unable to assist [appellant] in
[achieving] long-term sobriety,” and “the [d]rug [c]ourt [t]eam determined that there were
no additional steps or measures available to them to assist him an d, as such, termination
was the only remaining alternative at this time.”
The district court, following the probation revocation hearing, found that appellant
did fail to complete, and was terminated from, [the drug court]
program and did not successfully complete it. . . . [H]is
termination from treatment court was a result of his failure to
follow . . . the rules of [the d]rug [c]ourt program. Th[is c]ourt
has no basis on which to make a determination at this time that
that finding is in any way incorre ct, and the court accepts that
finding of the drug court judge.

Clear and convincing evidence supports the finding of both the drug court judge and the
district court judge that appellant failed to complete the drug court program, thereby
violating a condition of his probation.

2 The district court also found orally at the hearing that appellant “was terminated from the
continuing care portion of his chemical dependency treatment program at Project
Turnabout, again, as a result of the continued use.” Appellant challenges the finding in his
brief, arguing that it is not supported by clear and convincing evidence. But the finding is
based on and supported by the testimony of appellant’s probation officer. In any event,
appellant’s argument is not relevant: the probation condition appellant was alleged to have
violated was completion of the drug court program, and both the transcripts and documents
in the record provide ample evidence of that violation.
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2. The Need for Confinement
Appellant also argues that the district court abused its discretion in finding that the
need for appellant’s confinement outweighed the policies favoring probation. Revoking
probation and executing a p rison sentence should occur only if the court finds that “(1)
confinement is necessary to protect the public from the offender’s further criminal activity,
(2) the offender is in need of correctional treatment that can be most effectively provided
if he is confined, or (3) not revoking probation and executing the sentence would unduly
depreciate the seriousness of the offense.” State v. Modtland, 695 N.W.2d 602, 607 (Minn.
2005).
The district court found that all three of these factors supported the revoc ation of
appellant’s probation and wrote as to the third factor:
[Appellant] has been afforded many opportunities, and the
most extensive supervision and programming that is available,
and yet [he] still fails to comply with the supervision
requirements. Treatment Court is designed with the structure
necessary for [him] to successfully complete probation, but he
refused to comply with the rules and requirements of
Treatment Court. This is the fifth time [he] has been brought
back to court and found to be in violation of probation. The
record is abundantly clear that [he] does not value the
opportunity of probation, and is unwilling to comply with the
terms of supervision.

. . . .

[His] behavior demonstrates that he . . . is not amenable to
probation and cannot be relied upon to avoid criminal activity
while on probation.

At the conclusion of the hearing, the district court said it
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especially finds that this was supposed to be, based upon the
sentencing guidelines, a commit to the commissioner of
corrections from the outset. [Appellant] was given an
outstanding opportunity to stay out of prison and has been back
here so many times. This is not a decision made by the Court
because of a technicality. This is not a decision made by this
Court as a reflexive reaction to anything. It is a consideration
of the whole of this case.

Appellant claims that this finding is contrary to the record, arguing that the district court
“fail[ed] to consider appellant’s consistent and sincere advancement though the treatment
programs and the continued availability of appropriate programming in th e community”
and “revoked [his] probation because he used drugs one-too-many times.” He also claims
his relapses into drug use were “accumulated technical violations that cannot permit
revocation under Austin and Modtland.”
But the revocation in Austin was affirmed because the defendant “failed to take
advantage of the opportunity [for treatment] or to show a commitment to rehabilitation so
it was not unreasonable to conclude that treatment had failed . . . [and] the seriousness of
his violation would be denigrated if probation were not revoked,” 295 N.W.2d at 251. The
revocation in Modtland was reversed because “the district court did not address either the
second or third Austin factor before revoking probation.” 695 N.W.2d at 608. Both cases
are distinguishable, and neither case supports reversing the revocation of appellant’s
probation.
Affirmed.