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This opinion is nonprecedential except as provided by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
A21-1266

State of Minnesota,
Respondent,

vs.

Stephen Robert O’Brien,
Appellant.

Filed February 7, 2022
Reversed and remanded
Frisch, Judge

Hennepin County District Court
File No. 27-CR-16-22878

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Daniel L. Gerdts, Minneapolis, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Gaïtas, Judge; and Cleary,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
FRISCH, Judge
This appeal follows the district court’s revocation of appellant’s probation and
execution of his stayed sentence. Because the district court failed to make the required
findings prior to the revocation and abused its discretion by basing the revocation on an
erroneous factual finding, we reverse and remand.
FACTS
In November 2016, appellant Stephen Robert O’Brien pleaded guilty to felony
driving while impaired under Minn. Stat. § 169A.20, subd. 1 (2016) . The district court
sentenced O’Brien to 42 months in prison but stayed execution of the sentence and placed
him on probation for five years on the condition that, in pertinent part, he abstain from
using alcohol. O’Brien violated this condition five times. After his second violation, the
district court reinstated probation but imposed an additional condition prohibiting O’Brien
from driving.
This appeal relates to the fifth probation violation, which occurred in July 2021. At
the violation hearing, O’Brien admitted to using alcohol in violation of his probation. The
district court found the violation “inexcus able” and heard arguments from the parties
regarding the appropriate disposition for the violation. O’Brien asked to be transferred to
the workhouse until the date of his discharge from probation, approximately two months
after the hearing date . The state asserted that it understood that probation did not
recommend the revocation of O’Brien’s probation because probation did not believe the
district court would actually revoke probation . The state requested that the district court
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instead impose a consequence of 180 days in the workhouse, order chemical -dependency
treatment, and extend O’Brien’s probation for two years . Probation recommended that
O’Brien, who is 70 years old, serve 180 days in the workhouse, complete chemical-
dependency treatment, and then be discharged from probation.
The district court then asked: “What is he looking at in terms of prison time that you
think the Court will ignore?” Probation clarified the duration of the stayed sentence and
reminded the court that one of the probation conditions was that O’Brien refrain from
driving. T he district court then stated “[i]t’s one thing to be a chronic alcoholic, but a
chronic alcoholic is a dangerous mixture on the highway.” The district court ordered that
O’Brien’s probation be revoked.
The state then requested the district court state findings as required by State v.
Austin, 295 N.W.2d 246, 249 -50 (Minn. 1980). The district court then found that the
probation violation “was intentional and inexcusable” and that “the need for confinement
outweighs the policies favoring probation” because O’Brien was driving in violation of his
probation and he was “in need of a correctional treatment that can most [e]ffectively be
provided during confinement.”
O’Brien objected to the district court’s finding on the grounds that he did not admit
to driving in violation of his probation and that there was no evidence that he had done so.
The district court conceded that it stood corrected as to the factual record but “that [did]
not change the Court’s decision” to revoke probation. Because the revocation proceeding
occurred via remote technology due to the COVID-19 pandemic, the district court ordered
that O’Brien appear in person the following day to be taken into custody. O’Brien appeared
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the following day and asked for permission to voluntarily surrender in one week. The
district court denied the request, and O’Brien was taken into custody. O’Brien appeals.
DECISION
Before revoking probation, the district court must: “1) designate the specific
condition or conditions that wer e violated; 2) find that the violation was intentional or
inexcusable; and 3) find that need for confinement outweighs the policies favoring
probation” (the Austin factors). Austin, 295 N.W.2d at 249-50. We review de novo
whether a district court made the required Austin findings. State v. Modtland, 695 N.W.2d
602, 605 (Minn. 2005). And we review the district court’s Austin findings themselves for
abuse of discretion. Austin, 295 N.W.2d 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.” Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012) (quotation omitted).
I. The district court erred by not mak ing the required finding on the Austin
factors before revoking O’Brien’s probation.

O’Brien argues the district court erred by failing to make th e required findings on
the Austin factors before revoking his probation. We agree.
We review this question de novo. Modtland, 695 N.W.2d at 605. In Modtland, the
supreme court emphasized the importance of adhering to proper procedure in the decision
to revoke probation:
Austin contemplates an evidentiary hearing in which the
district court makes the requisite three findings before deciding
whether to revoke the defendant’s probation. This process
emphasizes that while an intentional or inexcusable probation
violation is a necessary condition for probation to be revoked,
it is not a sufficient condition. Rather, once an intentional or
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inexcusable violation has been found, the court must proceed
to an evaluation of whether the need for confinement
outweighs the policies favoring probation.

Id. at 607-08.
The district court did not follow this procedure. Instead, the district court first found
that O’Brien had violated his probation by using alcohol and labeled the violation as
“inexcusable.” After hearing from the parties regarding the disposition for the violation,
the district court revoked O’Brien’s probation. To be clear, the district court did not make
the requisite three findings before deciding whether to revoke O’Brien’s probation.
Instead, and only when prompted by the state, the district court made the required findings
on the Austin factors after it ordered the revocation. Accordingly, the district court erred
because it did not consider the Austin factors before it revoked O’Brien’s probation.
The state argues that O’Brien’s “concern abou t timing” does not warrant reversal
because the hearing lasted only 25 minutes, the district court found O’Brien’s violation to
be inexcusable, and the district court “provided an analysis of each separate factor within
minutes of noting it intended to rev oke probation.” We are not persuaded . Nothing in
either Austin or Modtland suggests that the duration of the hearing impacts the procedural
requirement that a district court make the required findings before revoking probation.
Second, even assuming the district court’s finding that the violation was inexcusable
properly addresses the first two Austin factors, Modtland expressly provides that the
required process “emphasizes that while an intentional o r inexcusable probation violation
is a necessary condition for probation to be revoked, it is not a sufficient condition. ” 695
N.W.2d at 608 . Third, Modtland also expressly provides that the district court must
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“make[] the requisite three findings before deciding whether to revoke the defendant’s
probation.” Id. at 607. That did not happen here. The district court therefore erred by
failing to make the required Austin findings before it revoked O’Brien’s probation.
II. The district court abused its d iscretion by finding th at policy considerations
weighed in favor of revoking O’Brien’s probation.

As an independent basis for reversal, O’Brien argues the district court abused its
discretion by relying exclusively on an erroneous factual assumption as the basis to find
that policy considerations weighed in favor of revoking his probation . We review this
question for abuse of discretion. Austin, 295 N.W.2d at 249-50.
In making a finding on the third Austin factor, the district court must consider
whether: (1) confinement is needed to protect the public from further criminal activity ,
(2) correctional treatment is necessary and can most effectively be provided during
confinement, or (3) a further stay would unduly depreciate the seriousness of the violation.
Modtland, 695 N.W.2d at 607. We generally refer to these considerations as the Modtland
subfactors. The district court need only find the existence of one of the Modtland
subfactors to satisfy the third Austin factor. See Goldman v. Greenwood, 748 N.W.2d 279,
283 (Minn. 2008) (recognizing that Minnesota appellate courts “normally interpret the
conjunction ‘or’ as disjunctive rather than conjunctive”).
Here, the district court stated th at it revoked O’Brien’s probation specifically
because it found that O’Brien had been driving in violation of his probation and O’Brien
“continues to drink and drive.” That factual conclusion finds no basis in the record.
O’Brien did not admit that he had been driving, the parties submitted no evidence that he
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had been driving, and there was no evidence that O’Brien “continue s to drink and drive.”
To that point, O’Brien’s counsel objected to the district court’s finding because the district
court had no admission or evidence that O’Brien had been driving, let alone drinking and
driving. When confronted with the reality of the record, the district court conceded that it
stood corrected but then stated “that does not change the Court’s decision” to revoke
probation. And while the district court acknowledged its mistaken factual conclusion, it
did not set forth any other basis to support its conclusion that policy considerations weighed
in favor of O’Brien’s incarceration. Accordingly, because the factual basis for the district
court’s finding on the third Austin factor is “against logic and the facts in the record,” the
district court abused its discretion by concluding that policy considerations weigh ed in
favor of revoking O’Brien’s probation. See Riley, 819 N.W.2d at 167.
Finally, we express concern regarding the statements of the district court during the
proceedings. At the probation -revocation hearing, the district court questioned the
probation officer as follows:
THE COURT: [Probation officer], what is he looking at?
PROBATION: Yes, Your Honor, I am recommending the 180
days in the workhouse to complete Telesis and discharge upon
completion of that time. I feel this is an extremely fair
recommendation based on the fact that this is his fifth violation
for continued alcohol use and as recently as yesterday,
according to the monitoring department, where he was a 0.10.
The Defendant, I’ve had him on probation for, you know,
almost five years at this point, he’s gone from admitting he has
a problem to being in complete denial to trying to get around
going to treatment to saying he knows how to stay sober, even
though he does not [stay] sober. At this time, I feel it’s
appropriate for him to g o to treatment while in custody rather
than out in the community, because he’s shown repeatedly that
he cannot do it out in the community.
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THE COURT: What is he looking at in terms of prison time
that you think the Court will ignore?
PROBATION: The time is 42 months, Your Honor, and he
has credit for 287.

When the parties appeared in person the following day, the district court further stated:
THE COURT: That’s the problem. I can’t make exceptions
for people and especially in a situation like this, [Counsel]. I
mean, your client is out of—you know, he’s out of control with
his drinking. You admitted yesterday that he is a chronic
drinker and that’s what chronic drinkers do and he has admitted
that, you know, that is a serious issue for him.

My problem is I don’t take chances with people who
have four or five probation violations for excessive drinking. I
just can’t take a chance. I don’t want my face in the front page
of the news, because that’s what people complain about and I
know all of you in this courtroom know that. That people
complain when the Courts let people like Mr. [O’Brien] out
and then he goes out and he kills somebody. So, what do you
think’s going to happen with me? I don’t trust him. I don’t
care what he tells you. He’s being taken into custody today
and I can’t show any favoritism toward anybody.

I would treat him as I would treat any litigant who has a
serious drinking problem, violates his conditions of probation
five times, I mean, he had to know that sooner or later he was
going to get caught and sent to prison. And you heard the
probation officer yesterday, although I was a little appalled at
what she said the reason she never asks for execution is
because the bench won’t do it. Well, this bench will do it. So,
I mean, that’s the message here. He’s to be taken into custody
and we’re done.

These comments suggest that the decision to revoke O’Brien’s probation was not
based exclusively on O’Brien’s conduct but instead based at least in part on considerations
personal to the district court judge. “A judge shall not be swayed by public clamor or fear
of criticism.” Minn. Code Jud. Conduct Rule 2.4(A); see also State v. Malone, 963 N.W.2d
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453, 465 (Minn. 2021) (“[J]udges are presumed to have the ability to set aside extra-record
knowledge and make decisions based solely on the merits of a case .”); In re Jacobs, 802
N.W.2d 748, 754 (Minn. 2011) (“[A] judge is required to ‘perform all duties of judicial
office fairly and im partially’ and ‘shall not permit family, social, political, financial, or
other interests or relationships to influence the judge ’s judicial conduct or judgment. ’”
(quoting Minn. Code Jud. Conduct, Rules 2.2, 2.4)).
Because the district court failed to make the required findings before revoking
O’Brien’s probation and then abused its discretion in justifying the revocation based on
clearly erroneous factual findings and other personal considerations, we reverse the
revocation of probation and remand for rehearing before a different district court judge.1
Reversed and remanded.

1 In his reply brief, O’Brien concedes that remand is appropriate. At oral argument,
however, O’Brien raised the issue of whether the district court has continuing jurisdiction
on remand given that O’Brien’s probationary period expired during the pendency of this
appeal. In State v. Sagataw , 892 N.W.2d 47, 49 -51 (Minn. App. 2017), we held that a
district court has jurisdiction to conduct probation -revocation proceedings after a
defendant’s stayed sentence has expired if the alleged probation violation occurred within
the period of the stayed sentence. Here, because O’Brien’s admitted probation vio lation
occurred within the period of the stayed sentence, the district court retains jurisdiction over
the probation-revocation proceedings on remand.