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This opinion is nonprecedential except as provided by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
A21-1517

State of Minnesota,
Respondent,

vs.

Keith Melvin Baerg,
Appellant.

Filed August 22, 2022
Affirmed in part, reversed in part, and remanded
Wheelock, Judge

Watonwan County District Court
File No. 83-CR-18-31

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

Stephen Lindee, Watonwan County Attorney, St. James, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)

Michelle K. Olsen, Jacob M. Birkholz, Birkholz & Associates, LLC, Mankato, Minnesota
(for appellant)

Considered and decided by Jesson, Presiding Judge; Reyes, Judge; and Wheelock,
Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
In this appeal from the district court’s order revoking probation, appellant Keith
Melvin Baerg argues that the district court (1) violated his due-process rights, (2) failed to
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make adeq uate findings to support the revocation of his probation, and (3) abused its
discretion because alternative treatment programs are available to him in the community.
Because Baerg had adequate notice of his probation conditions in accordance with due
process, we affirm in part, but because the district court’s findings on the third Austin factor
were inadequate to support the revocation of his probation, we reverse on that issue and
remand for further findings. Thus, we do not reach Baerg’s third argument.
FACTS
In January 2018, respondent State of Minnesota charged Baerg with first- and
third-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.342, subd. 1(e)(i),
.344, subd. 1(c) (2016). Baerg entered a Norgaard plea, pleading guilty to third-degree
criminal sexual conduct.1 The district court granted Baerg a dispositional departure from
the 117-month presumptive prison sentence and stayed execution of that sentence for 15
years. The district court then placed Baerg on probation and imposed several conditions,
including that he complete sex-offender treatment and abstain from alcohol.
In 2019, Baerg’s probation officer submitted a probation- violation report alleging
that Baerg used alcohol and failed to submit to alcohol testing. After a probation-violation
hearing, the district court found that Baerg had violated his probation. It reinstated his
probation, ordered him to serve 180 days in local custody, and imposed new probation
conditions.

1 A defendant enters a Norgaard plea if they are unable to admit facts due to memory loss
but agree that there is sufficient evidence for a conviction. State v. Ecker, 524 N.W.2d
712, 716-17 (Minn. 1994) (citing State ex rel. Norgaard v. Tahash, 110 N.W.2d 867, 871
(Minn. 1961)) (other citation omitted).
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In July 2020, Baerg’s probation officer referred him to CORE Professional Services,
a sex-offender treatment program. One month later, Baerg began treatment there. As part
of his treatment intake, Baerg signed a treatment-agreement form that included CORE’s
polygraph policy. Under the agreement, if Baerg denied the offense for which he was
ordered to complete treatment, he had to take a specific-issue polygraph test within 30 days
of beginning treatment. If he failed the polygraph test and continued to deny the underlying
offense, CORE would terminate his participation in the program.
Baerg denied his offense and submitted to a polygraph test in September 2020. The
test revealed signs of deception. Even so, Baerg continued to deny the underlying offense
throughout his treatment sessions. In late October 2020, CORE terminated Baerg’s
participation in the program for nonpayment of his treatment bill. He then paid his bill and
was readmitted in January 2021.
As part of CORE’s treatment program, Baerg’s therapist required him to purchase
a workbook and come to each session with completed assignments. Notwithstanding that
he had started the program in August 2020, Baerg did not purchase a workbook until
January 2021, and he did not complete most of his assignments. On April 15, 2021,
Baerg’s therapist informed him that he was at risk of termination from the program for his
lack of progress and for being late on payment again. On May 6, 2021, CORE terminated
Baerg’s participation in the program “for failure to make adequate progress . . . based on
his unwillingness to acknowledge his sexual offense and his failure to consistently
complete the treatment assignments.”
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Baerg’s probation officer filed a probation-violation report alleging that Baerg had
failed to complete sex-offender treatment, and the district court held a contested
probation-violation hearing in October 2021. Baerg’s probation officer and therapist
testified. His therapist testified that Baerg consistently resisted treatment. She testified
that Baerg was argumentative, had rigid thinking, struggled with denial, and made minimal
progress in treatment. She explained that the decision to terminate Baerg from treatment
was based on inadequate progress in the program, shown by his failure to complete
assignments or to acknowledge his offense.
The district court held a separate dispositional hearing on Baerg’s probation
violation. Baerg’s counsel argued that it would not be appropriate to revoke his probation
because Baerg was enrolled in a different sex- offender treatment program, demonstrating
his intent to complete treatment. He argued that Baerg could succeed in the new program
because unlike CORE, it did not require Baerg to admit he committed the underlying
offense. Baerg’s counsel further argued that Baerg did not “get a shot at the [treatment]
program” because he was discharged less than a year into a program that takes participants
roughly 27 months to complete, and he was discharged for only two incomplete homework
assignments. He also highlighted that Baerg had not reoffended, that Baerg had completed
his chemical-dependency program, that Baerg communicated regularly with his probation
officer, and that intermediate sanctions were available.
The county attorney argued that the district court should revoke Baerg’s probation
for failing to complete sex-offender treatment, which is a significant violation for a
criminal-sexual-conduct offense.
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The district court observed that it had given Baerg a chance to continue with
probation after his previous violation by reinstating, rather than revoking, probation; thus,
Baerg knew “what [was] at stake.” The district court found that the record showed Baerg’s
“lack of intent to complete treatment.” In support of this finding, the district court pointed
out that Baerg sought no other treatment after he was terminated from CORE until one
week before the probation-revocation proceeding, which the court characterized as “five
months of doing nothing.” The district court stated that if Baerg did not think CORE was
effective, he should have asked his probation officer to look into different treatment
programs. The district court found that (1) Baerg violated his probation conditions by
failing to complete sex-offender treatment, (2) the violation was intentional and
inexcusable, and (3) the need for confinement outweighed the policies favoring probation
because confinement was necessary to protect the public, and it would unduly depreciate
the seriousness of the violation if probation were not revoked. The district court then
revoked Baerg’s probation and executed his 117-month sentence.
Baerg appeals.
DECISION
Baerg challenges the district court’s order revoking his probation in three ways. He
argues first that the district court violated his due-process rights because the conditions of
his probation were unconstitutionally vague. Second, he argues that the district court
abused its discretion by revoking his probation without making sufficient findings on the
necessary Austin factors. Finally, he argues that the district court abused its discretion by
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revoking his probation because at the time of the probation-violation hearing, he was
enrolled in an alternative treatment program. We address his challenges in turn.
I. Baerg had adequate notice of his probation conditions.
Baerg first contends that the district court violated his due-process rights by failing
to inform him adequately of all the conditions of his probation. He asserts that the
condition set forth in the district court’s sentencing order that he must “[c]omplete
treatment Adult Sex Offender Treatment as directed by [his] agent” is unconstitutionally
vague because there is no way he could have known “what he would do to properly
‘complete’ treatment.” We disagree.
The district court at sentencing must “[s]tate precisely the terms of the sentence.”
Minn. R. Crim. P. 27.03, subd. 4(A). “[B]efore a probation violation can occur, the
condition alleged to have been violated must have been a condition actually imposed by
the court.” State v. Ornelas, 675 N.W.2d 74, 80 (Minn. 2004). And a probationer must
have a “fair warning” of which acts are prohibited by the probation conditions. Id. It is
best practice that a probationer be given “a written copy of the conditions of his probation.”
State v. Austin, 295 N.W.2d 246, 251 (Minn. 1980). When there is a plea agreement, it is
also best practice that the specific conditions intended to be imposed as part of the resulting
sentence be clearly identified. Id. at 250-51.
Baerg offers no legal support for the proposition that the probation condition
requiring a probationer to “complete treatment” lacks fair warning. To “complete
treatment” implies that the probationer meets the treatment program’s expectations and
complies with its policies. And here, we are particularly persuaded by the fact that this
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was Baerg’s precise understanding of his probation terms. The record reflects that Baerg
knew he needed to engage with and complete the sex-offender treatment program in order
to comply with his probation. After failing the specific-issue polygraph test, Baerg stated
that he would nonetheless “go with [treatment]” because he knew that if he failed to
cooperate with CORE, he would be terminated from its program and go to prison. We
therefore conclude that not only is “complete treatment” a fair warning of what was
expected of Baerg, but the record establishes that Baerg accurately understood its
meaning.2
Baerg also argues that the district court impermissibly delegated authority to CORE
to determine whether he violated his probation conditions. See Ornelas, 675 N.W.2d at 80
(“The imposition of sentences, including determining conditions of probation is
exclusively a judicial function that cannot be delegated to executive agencies.” (quotation
omitted)). We again disagree. CORE determined whether Baerg complied with its
treatment program and policies, and the district court reviewed CORE’s termination
decision to determine whether Baerg violated his probation. It is possible that CORE could
terminate Baerg’s participation in its program, and the district court could still find that

2 We are not persuaded otherwise by the caselaw Baerg cites because it is distinguishable.
In State v. Burnett, 231 A.3d 163, 169 (Vt. 2020), for example, the Vermont Supreme Court
held that the condition that the defendant must “participate fully” in a sex-offender
treatment program did not give him notice that the conduct triggering his
treatment-program complaint (picking a locked door) violated his probation. Unlike the
defendant in Burnett, Baerg was not discharged from CORE for a minor policy infraction.
He was instead discharged for failing to complete sex-offender treatment. Baerg knew that
failure to engage in the program could result in his termination from it, which in turn could
result in his probation being revoked.
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Baerg did not violate his probation conditions if, for example, Baerg enrolled in another
treatment program, or the district court determined CORE’s termination decision was
unreasonable. The district court has discretion to deviate from CORE’s determination
when finding whether Baerg violated his probation conditions. The district court did not
delegate authority to CORE to determine whether Baerg violated his probation conditions.
We conclude that Baerg had adequate notice of the conduct that could result in the
district court revoking his probation, and the district court therefore did not violate Baerg’s
due-process rights.
II. The district court erred by failing to make adequate factual findings
supporting the third Austin factor.
Baerg argues next that the district court erred when it failed to make adequate
findings on the factors required to support revocation of his probation. In Austin, the
supreme court held that the district court must make three findings before revoking
probation: “1) designate the specific condition or conditions that were violated; 2) find that
the violation was intentional or inexcusable; and 3) find that need for confinement
outweighs the policies favoring probation.” 295 N.W.2d at 250. These findings are
commonly known as the Austin factors.
In State v. Modtland, the supreme court reaffirmed its “core” holding in Austin
regarding the findings necessary for probation revocation. 695 N.W.2d 602, 606 (Minn.
2005). It also held that when making findings on the three Austin factors, district courts
“must seek to convey their substantive reasons for revocation and the evidence relied
upon.” Id. at 608. In other words, district courts do not satisfy Austin’s requirements by
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merely reciting the three factors or by offering only general, nonspecific reasons for
revocation. Id.
A 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.”
Austin, 295 N.W.2d at 249-50. But whether the district court made the findings required
for probation revocation is a question of law, which we review de novo. Modtland,
695 N.W.2d at 605.
Baerg contends that the district court’s findings on all three Austin factors are
inadequate. We agree o nly that the district court’s findings on the third factor are
inadequate.
Baerg first argues that the district court’s finding that he “was required to
successfully complete adult sex offender treatment as a condition of probation” is clearly
erroneous because there was no requirement that Baerg be “successful and there is no
showing that Baerg was not completing the program as set out by his probation officer.”
We are not persuaded by Baerg’s argument for two reasons. First, although the
district court did not include the word “successful” in the probation condition, the
requirement that Baerg “complete treatment” necessitates that he complete treatment
successfully. It is not clear, nor does Baerg explain, how a probationer could complete
treatment unsuccessfully.
Second, there is ample record evidence that Baerg was not satisfactorily completing
the treatment program and lacked the intent to complete it. For example, the therapist
testified that Baerg did not attend sessions regularly with completed treatment assignments,
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did not put any effort into the program, consistently denied the underlying offense, and
denied any issues with alcohol. The therapist explained that she needs to review a program
participant’s treatment assignments to assess their progress. She testified that Baerg
understood that he needed to bring completed assignments to every session to progress in
the program and that he often failed to do so.
The evidence reflects that Baerg violated the condition because the terms of his
probation required that he complete his treatment program, and he was not engaged in
completing the program and did not show an intent to complete the program. The district
court’s finding on the first Austin factor as set forth in its order is supported adequately by
the record, and the district court conveyed its specific reasoning.
Baerg next argues that the district court’s finding on the second factor is not
supported by the record. The district court found that Baerg’s “discharge from CORE was
both intentional and inexcusable.” In its order, the district court explained that Baerg knew
that “homework needed to be completed and progress needed to be made in order to be
successful in the CORE program,” and Baerg “chos[e] not to be fully invested in the
program.” The district court conveyed the substantive reasons for its determination that
Baerg’s violation was intentional and without legal excuse. See Modtland, 695 N.W.2d at
608. The finding is supported by the information the state provided to the district court.
Baerg’s therapist testified that Baerg understood the importance of completing
sex-offender treatment yet repeatedly failed to follow program rules, both before his initial
termination in October 2020 and after returning to the treatment program in January 2021.
The therapist’s testimony provides a sufficient basis for the district court’s finding that
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Baerg’s failure to comply with the treatment requirement of his probation was intentional
and without legal justification or excuse.3
Baerg argues finally that the district court failed to make the necessary finding on
the third factor. We agree. In addressing the third Austin factor, 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. Modtland, 695 N.W.2d at 606-07. In making
that determination, district courts 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.”
Id. at 607 (quotation omitted). These are the “Modtland” factors, and the district court

3 Baerg also argues that the district court violated his constitutional rights by directing him
to complete a treatment program that required him to admit guilt. Baerg contends that his
right to remain silent was violated and that the district court should not have relied on an
inadmissible polygraph test. Baerg did not raise these arguments to the district court, and
they are therefore forfeited. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) ; see also
State v. Vasko, 889 N.W.2d 551, 559 n.6 (Minn. 2017) (applying this rule to constitutional
questions). Even if we addressed these arguments, they would fail.
Baerg entered a Norgaard plea, and he did not appeal his conviction directly or
through postconviction proceedings. The time to do so has now run, and his conviction is
final. Minn. R. Crim. P. 28.02, subd. 4(3)(a), (c) (providing that an appeal must be filed
within 90 days after final judgment, or in postconviction-relief cases, within 60 days after
entry of the order). There is therefore no risk of self-incrimination or perjury, and his Fifth
Amendment rights were not violated.
And the district court did not rely on inadmissible evidence. Baerg’s failed
polygraph test was not introduced as evidence of his probation violation, but as a reason
underlying his termination from the treatment program. His probation violation was based
on not completing treatment. Because the district court relied on the program’s termination
letter and the therapist’s testimony to find that Baerg violated his probation conditions by
not completing treatment, it did not rely on inadmissible evidence and thus did not abuse
its discretion.
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needs to find only one of these factors to satisfy the third Austin factor. See Goldman v.
Greenwood, 748 N.W.2d 279, 283 (Minn. 2008) (stating that courts “normally interpret the
conjunction ‘or’ as disjunctive rather than conjunctive.”). 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.
The district court did not make any findings on the record as to the substantive
reasons and evidence upon which it relied in determining that the policies favoring
probation were outweighed by the need for confinement in Baerg’s case. Instead, it stated,
“[C]onfinement outweighs the policies favoring probation because confinement is
necessary to protect the public from further activity and c, [sic] it would unduly depreciate
the seriousness of the violation if probation were not revoked.” The district court did not
make specific findings about the need to confine Baerg, nor did it explicitly consider any
of the three Modtland subfactors. The district court did not weigh the need for confinement
against the policies that favor probation. Instead, it offered a blanket recitation of the third
Austin factor. Therefore, the district court failed to address the third Austin factor
adequately.
In sum, the district court failed to convey the “substantive reasons for revocation
and the evidence relied upon” as required by Modtland. Id. Although this court could look
through the transcript and record and identify reasons why the policies favoring probation
might be outweighed by the need for confinement, that is not the role of this court in
determining whether the district court met the requirements of Austin. Id. (“[I]t is not the
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role of appellate courts to scour the record to determine if sufficient evidence exists to
support the district court’s revocation.”).
Because the district court did not make adequate findings on the third Austin factor,
we reverse and remand for further findings based on the existing record. As a result, we
need not address Baerg’s remaining challenge.
Affirmed in part, reversed in part, and remanded.