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This opinion is nonprecedential except as provided by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
A22-0308

State of Minnesota,
Respondent,

vs.

Abel Villanueva,
Appellant.

Filed September 6, 2022
Affirmed
Johnson, Judge

Kandiyohi County District Court
File No. 34-CR-21-794

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

Shane D. Baker, Kandiyohi County Attorney, Julianna F. Passe, Assistant County
Attorney, Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Tracy M. Smith, Presiding Judge; Johnson, Judge; and
Larson, Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
The district court revoked Abel Villanueva’s probation because he did not report to
jail on the first day of his four-year term of probation, as ordered by the district court at his
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sentencing hearing. Villanueva argues that the district court erred by concluding that the
need for his confinement outweighs the policies favoring probation. We affirm.
FACTS
In August 2021, law-enforcement officers responded to a report of a squatter in an
apartment in the city of Willmar. The officers found Villanueva, who appeared to be
intoxicated. In a search of the apartment, the officers found methamphetamine, synthetic
cannabinoids, and drug paraphernalia.
The state charged Villanueva with fifth-degree possession of a controlled substance,
in violation of Minn. Stat. § 152.025, subd. 2(1) (2020); possession of synthetic
cannabinoids, in violation of Minn. Stat. § 152.027, subd. 6(d) (2020); and possession of
drug paraphernalia, in violation of Minn. Stat. § 152.092(a) (2020).
After his arrest, Villanueva was released on bond. The terms of his pre-trial release
prohibited him from possessing alcohol or controlled substances and required him to
submit to random drug testing. In late September 2021, a probation officer reported that
Villanueva had not complied with the drug- testing requirement, had not been in contact
with the probation office for more than a month, and had been arrested again for fifth-
degree possession of a controlled substance. Villanueva was detained following his arrest.
In October 2021, Villanueva submitted to a chemical -use assessment, which
resulted in a diagnosis of severe cannabis-use disorder. The assessor recommended that
Villanueva abstain from the use of alcohol and mood-altering substances and participate in
a residential treatment program.
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On November 10, 2021, Villanueva pleaded guilty to the fifth -degree possession
charge in exchange for the dismissal of the other charges. The district court ordered that
he be detained pending sentencing except that he could be released directly to a residential
treatment program if and when such arrangements could be made. Villanueva was released
to a residential treatment facility on November 17, 2021. Twelve days later, he absconded
from the treatment facility without completing the treatment program and without
contacting his probation officer or the district court.
The district court held a sentencing hearing on December 7, 2021. Villanueva
appeared remotely by video, apparently without prior permission of the district court .
When given an opportunity to speak in allocution, Villanueva stated that he left the
treatment facility because he “had a cold” and because the facility had not responded to his
complaints, but he also stated that he wanted to return to treatment. The district court
imposed a presumptive sentence of 19 months of imprisonment with a stay of execution,
four years of probation with a requirement that he complete a treatment program, and 120
days in jail with 54 days of credit. The district court ordered Villanueva to report to the
Kandiyohi County jail by 7:00 p.m. that evening. Near the conclusion of the sentencing
hearing, Villanueva asked the district court whether he could report to jail the following
day instead of that evening. The district court denied his request and stated: “It’s really
crucial that you’re appearing for that. We don’t want a probation violation right away.
With your history of probation violations, that would not look very favorable upon you.”
Villanueva acknowledged the district court’s statement by saying, “I understand.”
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Villanueva did not report to the Kandiyohi County jail by 7:00 p.m. that evening,
and he did not contact the jail or his probation officer. A warrant for his arrest was issued.
He was arrested approximately one week later.
The district court conducted a probation-revocation hearing on December 29, 2021.
Villanueva testified that he did not report to jail because he preferred a treatment program
over jail. He also testified that, if he were reinstated on probation, he would comply with
the terms of his probation and the requirement that he complete a treatment program. At
the conclusion of the hearing, the district court found that Villanueva had violated the terms
of his probation, that his violation was intentional and inexcusable, and that the need for
confinement outweighs the policies favoring probation. The district court executed
Villanueva’s 19-month prison sentence. Villanueva appeals.
DECISION
Villanueva argues that the district court erred by revoking his probation and
executing his sentence.
If a district court finds that a criminal offender has violated a term of probation, the
court may either continue the offender on probation or revoke probation and execute the
sentence. Minn. R. Crim. P. 27.04, subd. 3(2)(b)(iv)-(v). The supreme court has prescribed
a three-step analysis to guide district courts in deciding whether to revoke probation. A
district court may revoke probation only if the court (1) designates the specific condition
that has been violated; (2) finds that the violation was intentional or inexcusable; and
(3) finds that the need for confinement outweighs the policies favoring probation. State v.
Austin, 295 N.W.2d 246, 250 (Minn. 1980). In making these findings, “courts must seek
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to convey their substantive reasons for revocation and the evidence relied upon.” State v.
Modtland, 695 N.W.2d 602, 608 (Minn. 2005 ). “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.’” Id. at 605 (quoting Austin, 295 N.W.2d at
249-50).
In this case, the district court made an express finding with respect to each of the
three Austin factors. Villanueva challenges the district court’s findings only with respect
to the third Austin factor—that the need for his confinement outweighs the policies favoring
probation.
A district court may find that the third Austin factor is satisfied if it finds that any of
three sub-factors are present: (1) that confinement is needed to “‘protect the public from
further criminal activity by the offender,’ ” (2) that confinement is necessary to provide
treatment, or (3) that a further stay of the sentence “‘would unduly depreciate the
seriousness of the violation.’” Austin, 295 N.W.2d at 251 (quoting A.B.A. Standards for
Criminal Justice, Probation § 5.1(a) (Approved Draft 1970)). In this case, the district court
made an express finding with respect to each of the three sub-factors.
Villanueva contends that the record does not support the district court’s revocation
decision on the grounds that his probation violation on December 7, 2021, was his first
probation violation and that he remained willing to participate in a treatment program.
Villanueva’s contentions relate most directly to the district court’s finding on the second
sub-factor that “the best place for Mr. Villanueva to receive the necessary correctional
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treatment— the best that can be offered is to be confined in the Minnesota Correctional
Facility system.”
The record as a whole supports the district court’s finding with respect to the second
sub-factor. Villanueva had completed treatment program s on two prior occasions but
nonetheless had relapsed. While on pre-trial release in this case, Villanueva failed to
submit to random drug tests, as required by the conditions of his release. After he was
released to a treatment facility while awaiting sentencing, he absconded. And upon being
sentenced to a jail term, he did not report to jail. These facts support the district court’s
decision to execute Villanueva’s sentence to ensure that he receives chemical-dependency
treatment in prison.
Villanueva also contends that the district court should have reinstated his probation
due to his “demonstrated willingness to participate in treatment.” Villanueva testified that
he was willing to engage in a treatment program, but he did not demonstrate such a
willingness by his actions. To the contrary, he absconded from a treatment facility while
awaiting sentencing. Villanueva further contends that, instead of revoking probation, the
district court could have imposed intermediate sanctions, such as jail or an updated
chemical-dependency assessment. The district court already had ordered Villanueva to
report to jail, but he did not do so.
In sum, Villanueva has not identified any reason why the district court erred with
respect to the second sub-factor by finding that confinement is necessary to provide
treatment. In addition, Villanueva has not challenged the district court’s finding with
respect to the third sub-factor. The district court found that “if I gave Mr. Villanueva
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another chance, if I listen to him again, his promises that he is going to do better, that would
unduly depreciate the seriousness of his violation, and absolutely his sentence must be
imposed at this time and executed.” This is an independent and sufficient basis for the
district court’s finding on the third Austin factor.
Thus, the district court did not err by revoking Villanueva’s probation and executing
his sentence.
Before concluding, we note that Villanueva has filed a one -page pro se
supplemental brief. He informs the court that he is making progress in his prison -based
treatment program, has been recognized for certain accomplishments, and is determined to
succeed. His pro se supplemental brief does not assert that the district court erred in any
particular way and, thus, does not state a basis for appellate relief. We nonetheless
appreciate the positive report.
Affirmed.