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This opinion is nonprecedential except as provided by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
A22-0096

State of Minnesota,
Respondent,

vs.

Danielle Marie Dvorsak,
Appellant.

Filed August 8, 2022
Affirmed
Frisch, Judge

Stearns County District Court
File No. 73-CR-19-8570, 73-CR-19-8691

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

Janelle P. Kendall, Stearns County Attorney, River D. Thelen, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

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

Considered and decided by Frisch, Presiding Judge; Worke, Judge; and Johnson,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Appellant argues that the district court abused its discretion when it revoked her
probation based on an impermissible “reflexive” reaction. We affirm.
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FACTS
In October 2019, respondent State of Minnesota charged appellant Danielle Marie
Dvorsak with two controlled-substance crimes: first-degree possession of more than 50
grams of methamphetamine in violation of Minn. Stat. § 152.021, subd. 2(a)(1) (2018), and
first-degree aiding and abetting the sale of more than 17 grams of methamphetamine in
violation of Minn. Stat. § 152.021, subd. 1(1) (2018). See Minn. Stat. § 609.05, subd. 1
(2018) (“A person is criminally liable for the crime committed by another if the person
intentionally aids . . . the other to commit the crime.”). The state alleged that Dvorsak
possessed over 400 grams of methamphetamine and that Dvorsak provided
methamphetamine to a third party who then sold over 25 grams of the substances to a
confidential informant.
In August 2020, Dvorsak and the state reached a plea agreement, which provided in
pertinent part, that Dvorsak would argue for a dispositional departure at sentencing.
Between the date of the plea hearing and the sentencing hearing, Dvorsak committed
multiple conditional-release violations by failing to take, and by submitting, positive drug
tests.
In March 2021, the district court held a sentencing hearing. Dvorsak moved for a
downward dispositional departure. The state opposed Dvorsak’s motion, arguing that her
repeated conditional -release violations demonstrated that she was not particularly
amenable to probation. The district court granted Dvorsak’s motion for dispositional
departure, stayed the execution of a 126-month sentence, and placed Dvorsak on probation
for 30 years. As conditions of her probation, the district court ordered Dvorsak to abstain
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from using illegal drugs, submit to regular drug tests as ordered by her probation agent,
complete and follow the recommendations of a chemical -dependency evaluation, and
complete chemical-dependency treatment. The district court noted that “you’re going to
be on a very short leash and you’re going to have to dot every ‘I’ and cross every ‘T.’”
The district court also stated that it wanted to be notified immediately if Dvorsak violated
any of these probationary conditions.
In April 2021, approximately one month after sentencing, probation filed a
probation-violation report alleging that Dvorsak tested positive for methamphetamine, was
unsuccessfully discharged from chemical-dependency treatment, and failed to submit to
drug testing. In May 2021, the district court held a hearing, and Dvorsak admitted to
committing the violations. Although the state argued that the district court should revoke
Dvorsak’s probation, the district court imposed a 60-day jail consequence and continued
Dvorsak on probation pursuant to the same terms and conditions.
In September 2021, probation filed another probation-violation report, alleging that
Dvorsak tested positive for methamphetamine on multiple occasions, failed to submit
viable samples for drug testing , and again failed to complete chemical-dependency
treatment. On October 1, probation filed an addendum setting forth additional allegations
that Dvorsak continued to violate the conditions of probation since the filing of the
September report.
On October 27, 2021, the district court held a hearing, and Dvorsak again admitted
that she had violated the terms of her probation. The state again argued that the district
court should revoke probation because the need for her confinement outweighed the
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policies favoring probation. Dvorsak argued for an interim jail sanction so that she could
remain on probation to attend another chemical-dependency treatment program.
The district court revoked Dvorsak’s probation. Pertinent to this appeal, in
analyzing whether policy considerations outweighed the need for confinement, the district
court noted that it had granted Dvorsak two prior opportunities to succeed on probation
and then commented that Dvorsak’s situation was “kind of like the old saying, three strikes
and you’re out.” The district court then concluded that Dvorsak’s failure to take advantage
of the resources available to her and her continued use of illicit substances established that
the need for confinement outweighed the policies favoring probation because remaining
on probation would unduly depreciate the seriousness of her offense. The district court
executed Dvorsak’s sentence of 126 months’ imprisonment. Dvorsak appeals.
DECISION
“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.” State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). A district court abuses
its discretion if it misapplies the law, makes findings that are unsupported by the record, or
resolves the discretionary question in a manner that is contrary to logic and the facts on
record. Bender v. Bernhard, 971 N.W.2d 257, 262 (Minn. 2022).
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
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probation.” Austin, 295 N.W.2d at 250. Dvorsak challenges the district court’s finding as
to the third 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 the probationer’s rehabilitation and public safety. State v.
Modtland, 695 N.W.2d 602, 606-07 (Minn. 2005). District courts must base their decisions
“on sound judgment and not just their will.” Id. at 607 (quotation omitted). Decisions
must also not be based on “reflexive reaction[s]” due to “technical violations.” Austin, 295
N.W.2d at 251 (quotation omitted). In making this determination, district courts should
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.” Modtland, 695 N.W.2d at 607
(quotation omitted). The presence of one subfactor is sufficient to support revocation. See
id. A district court makes adequate findings when it sets forth “substantive reasons for
revocation.” Id. at 608.
Here, Dvorsak argues that the district court’s statement “three strikes and you’re
out” demonstrates that the revocation of probation was a reflexive reaction to the number
of failed opportunities that the district court afforded to Dvorsak to succeed under
probationary supervision. We disagree. Although Dvorsak isolates this colloquial
statement by the district court, she ignores the remainder of the considered, substantive
reasons cited by the district court in support of its decision to revoke probation. The district
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court specifically stated at sentencing that “you’re going to be on a very short leash” and
stated at the October probation -revocation hearing that it was “very concerned with
[Dvorsak’s] continued involvement with chemicals” and her behavior to “not follow what’s
[been] recommended by the professionals.” In light of this specifically identified behavior
while on probation, the district court found that a decision not to revoke Dvorsak’s
probation would “unduly depreciate the seriousness of the underlying charges.” Our
review of the totality of the district court’s statements therefore shows that the district court
did not base its revocation decision on a “reflexive reaction” connected to the number of
times that Dvorsak violated the terms of her probation or her receiving a dispositional
departure.
1 Rather, the district court based its revocation decision on Dvorsak’s repeated
use of illegal substances and her inability to complete chemical -dependency treatment
successfully. These are substantive reasons sufficient to support revocation. Id. We
therefore discern no abuse of discretion by the district court in its decision to revoke
probation.
Affirmed.

1 We note that a district court may consider an underlying downward dispositional
departure when deciding whether to revoke probation. See State v. Fleming, 869 N.W.2d
319, 331 (Minn. App. 2015), aff’d, 883 N.W.2d 790 (Minn. 2016).