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This opinion is nonprecedential except as provided by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
A21-1668

State of Minnesota,
Respondent,

vs.

James Michael Peters, III,
Appellant.

Filed August 8, 2022
Affirmed
Gaïtas, Judge

Polk County District Court
File Nos. 60-CR-18-1968, 60-CR-18-2462

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, First Assistant County Attorney,
Crookston, Minnesota (for respondent)

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

Considered and decided by Bryan, Presiding Judge; Gaïtas, Judge; and Klaphake,
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NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant James Michael Peters, III, appeals from the district court’s order revoking
his probation, arguing that the district court abused its discretion in determining that the
need for confinement outweighs the policies favoring continued probation. We affirm.
FACTS
In October 2018, police stopped Peters for a traffic violation and, after discovering
methamphetamine in his car, arrested him. Respondent State of Minnesota charged Peters
with second-degree sale of methamphetamine in a school zone, Minn. Stat. § 152.022,
subd. 1(7)(ii) (2018); third-degree possession of methamphetamine in a school zone, Minn.
Stat. § 152.023, subd. 2(a)(6) (2018); and misdemeanor driving while impaired (DWI),
Minn. Stat. § 169A.20, subd. 1(7) (2018). When Peters missed a court date, the state also
charged him with felony failure to appear in court. Minn. Stat. § 609.49, subd. 1(a) (2018).
Peters eventually pleaded guilty to third-degree possession of methamphetamine in
a school zone, misdemeanor DWI, and felony failure to appear. Although Peters did not
appear at his first scheduled sentencing hearing, he was ultimately sentenced for the
offenses in December 2019. The district court imposed a 27-month stay of execution for
the third-degree possession conviction, a year -and-a-day stay of execution for the failure
to appear conviction, and a 90-day executed sentence for the DWI conviction. For the
felony offenses, the district court placed Peters on supervised probation for ten years.
In February 2021— less than two years into Peters’s probationary period —
corrections filed a probation-violation report and obtained a warrant for Peters’s arrest.
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The report alleged that Peters had been charged with multiple offenses in North Dakota
between December 2019 and January 2021, including preventing arrest, criminal mischief,
fleeing or attempting to elude a police officer, driving with a suspended license, and
unlawful possession of drug paraphernalia. Additionally, the report alleged that Peters had
failed to contact his probation officer; failed to report the new offenses to his probation
officer; failed to provide his probation officer with his current address, phone number, and
employment; and failed to complete a chemical assessment.
Peters eventually appeared at a probation violation hearing and admitted the alleged
violations. The district court allowed Peters to continue on probation but ordered him to
serve 135 days in custody as a sanction.
In September 2021, corrections filed a second probation-violation report. The report
alleged that Peters had been charged with additional offenses in North Dakota, failed to
maintain contact with his probation officer, failed to schedule a chemical -dependency
assessment, and admitted to using marijuana, fentanyl, and methamphetamine.
Peters admitted the alleged violations. At the disposition hearing, the state
requested execution of Peters’s stayed sentences. The state noted that Peters had violated
his probation early and often, acquiring ten new criminal cases in North Dakota since
sentencing. Peters asked the district court for continued probation with local jail time and
chemical dependency treatment. He explained the personal circumstances that had led him
to continue using drugs while on probation.
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Concluding that the need for confinement outweighed the policies favoring
continued probation, t he district court revoked Peters’s probation. The district court
executed both stayed prison sentences.
Peters appeals.
DECISION
“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). But whether the
district court made the findings required to revoke probation is a question of law, which
the appellate court reviews de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn.
2005).
Before revoking a criminal defendant’s probation, a district court must address three
factors articulated in Austin. The district court must “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.” Austin, 295
N.W.2d at 250. A district court should clearly address these three Austin factors and not
merely recite them or give “general, non-specific reasons for revocation.” Modtland, 695
N.W.2d at 608. And a district court must be cognizant of the fact that “the purpose of
probation is rehabilitation and revocation should be used only as a last resort [if] treatment
has failed.” Id. at 606 (quotation omitted).
Peters argues that the district court abused its discretion in determining that the need
to confine him outweighed the policies favoring probation. This third Austin factor
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requires a district court to address 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 he is confined; or (iii) it
would unduly depreciate the seriousness of the violation if probation were not revoked.”
Austin, 295 N.W.2d at 251. A district court may revoke probation upon proof of only one
of the subfactors. Id.
In addressing the third Austin factor, the district court stated:
The Court will confirm that we are at a state where I believe
that your confinement . . . outweighs policies favoring
probation for these reasons. First of all, I do believe we have
to protect the public from further criminal activity. You’ve had
umpteen convictions for other offenses since you’ve been on
probation. The Court will note that [many] of your violations
that have brought you before the Court here, especially
recently, are drug related. The Court always reminds everyone
in court that there is an underpinning of a system that supports
the drug trade in our area. It’s a dangerous group of people and
it creates a scourge on our communities. So, confinement is
necessary to protect the public and its citizens from not only
specific criminal activity, but general activity like the use of
drugs because of that broad network and its dangerousness.
The Court does believe you, sir, are in need of more treatment
than we can seem to offer in the community. We’ve tried to
entice you to engage in programming and you haven’t really
done that effectively. I believe that the Commissioner has
programs for you that can be delivered more appropriately, and
hopefully help you with a longtime result. One thing I worry
about is if we just keep dumping larger chunks of local time on
you is all that does is create a situation where at some point,
you’ll go down to the Commissioner, check in at St. Cloud and
get put out again and not really get any benefit from the
Commissioner. The Court will also finally conclude that it
would unduly depreciate the seriousness of your violations if I
didn’t revoke and remand you to the Commissioner. Other
people on probation do quite well. People who make the
commitment and obtain chemical health and mental health
programming with hardly a thing on their radar. It literally
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takes[, my] gosh, an unbelievable amount of time to just review
your violation reports and all the information in them about
violations and other criminal conduct. So, I can’t be fair to
other offenders and not execute your sentence.

Peters contends that the district court’s discussion of the third Austin factor was
merely a “superficial recitation,” providing only “general, non-specific reasons for finding
that Peters’s sentence should be executed.” We disagree. The district court specifically
explained how Peters’s conduct implicated each of the three subfactors. As to the first
subfactor— whether confinement is necessary to protect the public—the district court noted
that Peters had continued to be involved in significant drug activity while on probation ,
supporting a particularly dangerous drug trade in the local community. As to the second
subfactor, the district court was required to consider whether “the offender is in need of
correctional treatment which can most effectively be provided if he is confined.” Id. The
district court did so, observing that Peters had failed to engage in treatment while in the
community and that treatment would be more effectively delivered in prison. And the
district court appropriately evaluated the third subfactor —whether continued probation
would unduly depreciate the seriousness of the violations. The district court determined
that because Peters had committed multiple probation violations, including new criminal
offenses, it would be unfair to continue him on probation rather than to execute his
sentences.
The district court adequately addressed the third Austin factor, making findings on
each of the three subfactors. Accordingly, the district court did not abuse its discretion in
revoking Peters’s probation.
Affirmed.