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This opinion is nonprecedential except as provided by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
A21-1181

State of Minnesota,
Respondent,

vs.

Jorge Luis Vargas-Perez,
Appellant.

Filed April 18, 2022
Affirmed
Frisch, Judge

Rice County District Court
File No. 66-CR-18-1232

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

John Fossum, Rice County Attorney, Sean R. McCarthy, Assistant County Attorney,
Faribault, Minnesota (for respondent)

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

Considered and decided by Gaïtas, Presiding Judge; Bjorkman, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Following the revocation of his probation, appellant argues that the district court
abused its discretion by concluding that the need for his confinement outweighed the
policies favoring continued probation. We affirm.
2
FACTS
The Charge, Guilty Plea, and Plea Conditions
In May 2018, respondent State of Minnesota charged appellant Jorge Luis
Vargas-Perez with first-degree possession of a controlled substance, in violation of Minn.
Stat. § 152.021, subd. 2(a)(1) (2016).
In February 2020, the parties reached a plea agreement. The parties agreed that, in
exchange for a plea of guilty to first -degree possession of a controlled substance ,
Vargas-Perez would receive a stay of execution of sentence, representing a downward
dispositional departure from the Minnesota Sentencing Guidelines . The agreement was
contingent on Vargas-Perez meeting certain conditions, including completing a specific
outpatient chemical-dependency program and promptly obtaining mental-health services.
The district court accepted the guilty plea and continued the matter for sentencing.
In April 2020 , Vargas -Perez was discharged from the outpatient
chemical-dependency program “for violating [the program’s] absence policy many times
over.” He also did not obtain mental-health services. But i n September 2020,
Vargas-Perez successfully completed a different program which included both
chemical-dependency and mental-health treatment.
The Sentencing Hearing
In December 2020, the district court held a sentencing hearing. The state argued
that Vargas-Perez violated the plea agreement and requested that the district court impose
the presumptive guidelines sentence of 65 months’ imprisonment. Vargas-Perez requested
that the district court stay imposition or execution of sentence and place him on probation.
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Vargas-Perez asked the district court for “one final opportunity,” and his counsel expressly
argued that “there’s always prison as punishment if Mr. Vargas-Perez is not successful on
probation.” The district court found Vargas -Perez to be “particularly amenable to
treatment in the community,” stayed execution of sentence , and placed Vargas-Perez on
probation for five years. Notwithstanding the stayed sentence, the district court stated that
it had “grave concerns” about Vargas-Perez’s “ability to be successful on probation” and
that the probationary sentence is “a short leash.”
The probationary conditions imposed by the district court included, in relevant part,
that Vargas-Perez contact his probation officer as directed, remain law-abiding and notify
probation if he has “any contact with law enforcement,” and obtain mental-health services
within 30 days . The district court pronounced these conditions orally at the sentencing
hearing and set forth the conditions in a written sentencing order issued after the hearing.
Vargas-Perez’s probation officer also reiterated these conditions in a telephone
conversation “immediately after sentencing.” And the warrant of commitment, in pertinent
part, specifically listed the probationary condition that Vargas-Perez “must obtain Mental
Health Services within the next 30 days.”
The Probation-Violation Report and Contested Revocation Hearings
In April 2021, Vargas-Perez’s probation officer filed a probation -violation report,
alleging that Vargas-Perez violated multiple conditions of his probation . In May 2021, a
district court judge who did not sentence Vargas-Perez held a contested probation-violation
hearing to determine the specific probationary conditions violated and whether any such
violation was intentional and inexcusable, the first two Austin factors. State v. Austin, 295
4
N.W.2d 246, 250 (Minn. 1980) ( applying a three -step probation-violation analysis:
(1) designate the specific conditions violated, (2) determine whether the violation was
“intentional or inexcusable,” and (3) evaluate whether the “need for confinement
outweighs the policies favoring probation”). Following this contested hearing, the district
court found that Vargas-Perez violated three probationary conditions: he failed to contact
his probation officer as directed, failed to remain law-abiding and notify probation of his
contact with law enforcement, and failed to obtain mental-health services . The district
court found that each violation of probation was intentional and inexcusable.
In June 2021, the district court judge who sentenced Vargas-Perez held a contested
hearing to determine whether the need for confinement outweighed the policies favoring
probation, the third Austin factor. See i d. The district court found that the need for
confinement did outweigh the policies favoring probation because mental-health treatment
could most effectively be provided if Vargas -Perez was in custody, and that not revoking
probation would depreciate the seriousness of the violations. The district court concluded
that Vargas-Perez’s failure to obtain mental-health services “goes right to the reason that
this Court departed from the presumptive commit to prison” and the “Court gave Mr.
Vargas-Perez an opportunity to get services in the community. He didn’t take that
opportunity.” It further found that “[t]hese are not minor violations of probation. They are
significant.” The district court revoked Vargas -Perez’s probation and executed the
65-month sentence.
Vargas-Perez appeals.
5
DECISION
Vargas-Perez argues that the district court abused its discretion by revoking his
probation because “the record did not establish that the policies favoring probation were
outweighed by a need for confinement.”1 We disagree.
“The [district] court has broad discretion in determining if there is sufficient
evidence to revoke probation,” and we reverse “only if there is a clear abuse of that
discretion.” Id. at 249-50. “A district court abuses its discretion when its decision is based
on an erroneous view of the law or is against logic and the facts in the record.” State v.
Hallmark, 927 N.W.2d 281, 291 (Minn. 2019) (quotation omitted).
Before a district court can revoke 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 [the] need for confinement outweighs the policies favoring
probation.” Austin, 295 N.W.2d at 250. In this appeal, Vargas-Perez contests only the
district court’s findings on the third Austin factor.
In determining whether the need for confinement outweighs the policies favoring
probation, a district court must balance the probationer’s interest in freedom against the
state’s interests in ensuring public safety and the probationer’s rehabilitation. State v.
Modtland, 695 N.W.2d 602, 606 -07 (Minn. 2005). In making that determination, district
courts consider whether “(i) confinement is necessary to protect the public from further

1 The state did not file a brief in this appeal, so we ordered that the appeal proceed pursuant
to Minn. R. Civ. App. P. 142.03 ( providing that if respondent fails to file a brief, the case
shall be determined on the merits).
6
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.” Id. at 607 (quotation
omitted). District courts must base their decisions “on sound judgment and not just their
will.” Id. at 606-07 (quotation omitted). A district court’s findings are adequate when it
provides “substantive reasons for revocation.” Id. at 608.
Here, the district court acted within its discretion by revoking Vargas-Perez’s
probation when it found that he was in need of correctional treatment that could be most
effectively provided in confinement.2 The district court explicitly conditioned
Vargas-Perez’s prob ation on him obtaining mental -health services within 30 days of
sentencing. Between the December 2020 sentencing hearing and the June 2021 revocation
of his probation, Vargas-Perez failed to obtain mental -health services. In revoking his
probation, the district court stated that his failure to obtain such services “goes right to the
reason that this Court departed from the presumptive commit to prison” because the district
court previously departed based on Vargas -Perez’s amenability to treatment. See State v.
Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015), aff’d, 883 N.W.2d 790 (Minn. 2016)
(stating that a district court may consider an underlying downward dispositional departure
when deciding whether to revoke probation). The district court added that it “gave Mr.
Vargas-Perez an opportunity to get services in the community. He didn’t take that

2 We need not address whether the district court abused its discretion by also finding that
continued probation would unduly depreciate the seriousness of the violations because the
district court need only find the existence of one Modtland subfactor to revoke probation.
See Modtland, 695 N.W.2d at 606-07 (separating each subfactor by the conjunction “or”).
7
opportunity.” Stated differently, the district court determined that Vargas -Perez was no
longer particularly amenable to probation and that the violation was serious.
Vargas-Perez argues that the district court nevertheless abused its discretion by
revoking probation instead of affording him additional opportunities for treatment in the
community. It is true that t he supreme court has stated, “In some cases, policy
considerations may require that probation not be revoked even though the facts may allow
it . . . . The purpose of probation is rehabilitation and revocation should be used only as a
last resort when treatment has failed.” Austin, 295 N.W.2d at 250. But the supreme court
has also explained that “it [is] not unreasonable to conclude that treatment ha[s] fa iled”
when a defendant “has been offered treatment but has failed to take advantage of the
opportunity or to show a commitment to rehabilitation.” Id. at 251. The district court ’s
finding that treatment had failed because Vargas-Perez repeatedly did not take advantage
of the opportunity to obtain mental -health services in the community is supported by the
record.
Although another district court might have elected not to revoke Vargas-Perez’s
probation, our review of the revocation decision is for an abuse of discretion, and we cannot
say that the district court’s decision here was such an abuse of its discretion. See State v
Blom, 682 N.W.2d 578, 613 (Minn. 2004) (stating that the district court did not abuse its
discretion when another district c ourt, in the proper exercise of its discretion, may have
reached a different result on the same facts).
Affirmed.