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This opinion is nonprecedential except as provided by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
A21-1388

State of Minnesota,
Respondent,

vs.

James Donald Callender,
Appellant.

Filed May 9, 2022
Affirmed
Worke, Judge

Brown County District Court
File No. 08-CR-20-407

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

Charles W. Hanson, Brown County Attorney, Daniel D. Kalk, Assistant County Attorney,
New Ulm, Minnesota (for respondent)

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

Considered and decided by Larkin, Presiding Judge; Worke, Judge; and Ross,
Judge.
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NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant argues that the district court (1) abused its discretion by determining that
the need to confine him outweighed the policies favoring probation, and (2) erred by failing
to make the requisite findings before revoking his probation. We affirm.
FACTS
In June 2020, respondent State of Minnesota charged appellant James Donald
Callender with one count of felony theft in violation of Minn. Stat. § 609.52, subd. 2(a)(1)
(2018). Callender entered an Alford guilty plea, which the district court accepted. 1 In
September 2020, the district court imposed a 19-month sentence but stayed the sentence
and placed Callender on probation for five years. Callender’s probation conditions
included maintaining contact with probation daily if he remained homeless and completing
a chemical-use assessment.
Callender’s probation agent file d a probation -violation report in December 2020,
alleging that Callender violated his probation conditions by failing to maintain contact with
her. She recommended revoking Callender’s probation. Callender admitted the violation
at a probation-violation hearing, and the district court imposed an intermediate sanction of
42 days in jail.
In May 2021, Callender’s probation agent filed a second probation-violation report
alleging that Callender violated his probation conditions by failing to maintain contact,

1 The district court may accept a defendant ’s guilty plea even though the defendant
maintains his innocence. North Carolina v. Alford, 400 U.S. 25, 38 (1970).
3
remain law abiding, and complete a chemical-use assessment. The agent reported that
Callender completed one virtual Zoom visit but failed to show up for another virtual visit.
She sent text messages to his phone number that were returned as undelivered. She emailed
him, but he did not respond for almost three weeks. She tried to transfer his probation
supervision to Ramsey County, where Callender was then living, but the Ramsey County
probation agent also could not contact him. The agent also reported that Callender had five
new criminal charges pending in several counties and that he had provided no information
indicating that he participated in a chemical- use assessment. The agent recommended
executing Callender’s sentence.
At a probation-violation hearing, Callender admitted that he failed to maintain
contact with his probation agent and failed to complete a chemical-use assessment. But he
explained that he lost his phone and his car, the place at which he was supposed to be living
was “a scam,” people kept stealing from him, and he tried to go to the library but it was
closed. He said he “gave up.” And he said that he was currently trying to get a
chemical-use assessment while in jail. The district court nevertheless found that
Callender’s probation violations were intentional and inexcusable, that it would unduly
depreciate the seriousness of Callender’s violations if probation were not revoked, and that
Callender would be able to get treatment while in custody. The district court revoked
Callender’s probation and executed his 19-month sentence. This appeal followed.
DECISION
We review a district court’s probation-revocation decision for an abuse of
discretion. State v. Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015), aff’d on other
4
grounds, 883 N.W.2d 790 (Minn. 2016). “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 may revoke an offender’s probation, it must: (1) identify the
condition that was 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). State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).
Callender first argues that the record does not support the district court’s
determination that the third Austin factor—that the need for his confinement outweighs the
policies favoring probation—was satisfied. We disagree.
In assessing the third Austin factor, the district court should consider the Modtland
subfactors: whether (1) “confinement is necessary to protect the public from further
criminal activity,” (2) “the offender is in need of correctional treatment which can most
effectively be provided if he is confined,” or (3) “it would unduly depreciate the seriousness
of the violation if probation were not revoked.” Id. at 251; State v. Modtland, 695 N.W.2d
602, 607 (Minn. 2005). The district court must make adequate fact -specific findings to
enable review, and it may not rely on a general recitation of the Austin factors. Modtland,
695 N.W.2d at 608.
Here, the district court made findings on the second and third Modtland subfactors.
With regard to the second Modtland subfactor, the district court found that, although
“community resources haven’t been exhausted,” Callender did nothing to obtain
chemical-dependency treatment while on probation, and that he would be able to get
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treatment while in custody. This finding is supported in the record, and it supports
revocation. Callender points to no caselaw requiring that the district court find that an
offender has exhausted community treatment options before it can find that treatment
would be most effectively provided in custody. And it was not unreasonable for the district
court to have concluded that treatment in custody is the best option when Callender
struggled to maintain a residence, failed to maintain contact with his agent, and failed to
independently take any steps towards treatment.
With regard to the third Modtland subfactor, the district court found that Callender
had previously been reinstated on probation after failing to maintain contact with his agent.
The district court noted that Callender’s pending charges in multiple counties demonstrated
his ability to “get around,” and it therefore questioned his inability to find a phone to
contact probation. And the district court found that Callender failed to complete a
chemical-dependency assessment. The district court therefore found that it would unduly
depreciate the seriousness of Callender’s violations if probation were not revoked.
These findings are also supported in the record. Although the district court could
have been more explicit as to why the violations were serious enough to warrant revocation,
the record shows that Callender repeated the same violation and made little to no effort to
comply with his probation conditions. That Callender disagrees with the seriousness the
district court attributes to his violations does not mean that the district court abused its
discretion by revoking probation on this basis. In sum, the district court did not abuse its
discretion by determining that two of the Modtland factors were satisfied.
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Callender also contends that the district court should have imposed intermediate
sanctions. But the district court has discretion in whether to impose intermediate sanctions
or revoke probation. See State v. Cottew, 746 N.W.2d 632, 639 (Minn. 2008) (stating that
district court may impose intermediate sanctions). Here, the district court previously
imposed an intermediate sanction for a similar violation and Callender’s probation
violations nevertheless continued. The district court’s decision to execute Callender’s
sentence instead of imposing an intermediate sanction was not unreasonable.
Callender next argues that the district court erred by failing to explicitly find that
the need for confinement outweighed the policies favoring probation. He asserts that the
district court failed to adequately weigh the policies favoring probation versus those
favoring confinement. We are not persuaded.
We review de novo whether a district court made the required Austin factual
findings. Modtland, 695 N.W.2d at 605. In Modtland, the supreme court stated that mere
recitation of the Austin factors is insufficient. Id. at 608. Instead, the district court must
make factual findings to ensure that it “create[s] [a] thorough, fact-specific record[]” and
“convey[s] [its] substantive reasons for revocation.” Id.
Here, the district court did not use the precise language of the third Austin factor.
But we are aware of no caselaw requiring the district court to recite the precise language
of the third Austin factor. Instead, caselaw indicates that the district court sufficiently
addresses the third Austin by considering the Modtland subfactors, and here the district
court made findings of fact on two Modtland subfactors. Id. at 607. In doing so, it
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conveyed its substantive reasons for revocation and thereby satisfied its duty to address the
third Austin factor.
Appellant’s reliance on State v. Hill, No. A19-0313, 2019 WL 5107465 (Minn. App.
Oct. 14, 2019) is unavailing. In Hill, we reversed the district court’s order revoking
probation because its findings did “not adequately address the third [Austin] factor” and
because “[c]aselaw is clear that district courts must explicitly make the three required
findings before revoking probation.” Id. at *5 (citing Modtland, 695 N.W.2d at 608).
We distinguished Hill in State v. Bryant, No. A20-0900, 2021 WL 772630, at *4
(Minn. App. Mar. 1, 2021), rev. denied (Minn. May 26, 2021). 2 Neither of the district
courts in Hill and Bryant explicitly recited the language of the third Austin factor or
explicitly weighed the need for confinement against policies favoring probation. See Hill,
2019 WL 5107465, at *5; Bryant, 2021 WL 772630, at *4. But in Hill, the district court’s
findings on all three Austin factors amounted to just four sentences, and this court reversed.
Hill, 2019 WL 5107465, at *5. In contrast, in Bryant , the district court’s findings on the
Austin factors and Modtland subfactors spanned ten transcript pages, and this court
affirmed. Bryant, 2021 WL 772630, at *4. Further, in Bryant, we noted that the Modtland
subfactors are considerations under the third Austin factor. Id. at *3. We concluded that,
by addressing the Modtland subfactors, the Bryant district court adequately addressed
Austin. Id.; see also Modtland, 695 N.W.2d at 605.

2 We rely on these two nonprecedential opinions because of their persuasive value and
because both directly address the same issue we address in this matter. See Minn. R. Civ.
App. P. 136.01, subd. 1(c) (stating that nonprecedential opinions may be cited for
persuasive value).
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This case is more similar to Bryant than Hill. The district court’s analysis here goes
beyond merely reciting the language of Modtland or Austin. Instead, its findings span two
transcript pages and expand on two of the Modtland subfactors. The district court
sufficiently conveyed its substantive reasons for revocation and satisfied its duty to address
the third Austin factor. We therefore conclude that Hill is distinguishable and that the
district court did not err by failing to explicitly weigh the need for confinement against
policies favoring probation or explicitly recite the language of Austin.
Affirmed.