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This opinion is nonprecedential except as provided by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
A22-0649

State of Minnesota,
Respondent,

vs.

Noah Rogers,
Appellant.

Filed January 9, 2023
Reversed and remanded
Slieter, Judge

Aitkin County District Court
File No. 01-CR-18-574

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

James Ratz, Aitkin County Attorney, Aitkin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Eva F. Wailes , Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Slieter, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant challenges the revocation of his probation, arguing that the district court
failed to make sufficient findings to conclude that the need for confinement outweighs the
2
policies favoring probation. Because t he district court did not provide a case-specific
analysis of the third Austin factor and the Modtland subfactors, we reverse and remand.1
FACTS
In October 2018 and pursuant to a plea agreement, appellant Noah Rogers pleaded
guilty to burglary in the third degree, in violation of Minn. Stat. § 609.582, subd. 3 (2016).
The plea agreement provided for a delay of sentencing to allow Rogers to complete
chemical-dependency treatment. And if he successfully completed treatment, Rogers
would receive a stay of execution of 30 months’ imprisonment, a dispositional departure.
Rogers successfully completed treatment and, therefore, the district court stayed
execution of a 30-month prison term for up to five years of probation. Rogers’s sentence
was subject to several standard conditions, including completion of an outpatient treatment
program and no use of alcohol or controlled substances.
In November 2019, Rogers’s corrections agent filed a probation-violation report
based on Rogers’s admitted controlled-substance use, positive drug tests, discharge from a
treatment program for nonattendance, and violations of other standard probation
conditions. Based upon the corrections agent’s recommendation, the district court issued
a warrant for Rogers’s arrest in November 2019. Rogers was not apprehended until he was
taken into custody and charged with two new offenses in November 2021. After Rogers’s
arrest, he admitted to using a controlled substance.

1 State v. Austin, 295 N.W.2d 246 (Minn. 1980); State v. Modtland, 695 N.W.2d 602,
(Minn. 2005).
3
In January 2022, Rogers admitted to the probation violations. During the contested
disposition hearing held two days later, the corrections agent, the sole witness, testified
consistent with the information from her probation-violation reports.
In a written order, the district court found that Rogers violated the terms of his
probation, revoked Rogers’s probation, and executed the 30-month stayed prison sentence.
Rogers appeals.
DECISION
In deciding whether to revoke probation, the Minnesota Supreme Court has
identified three factors, known as the Austin factors, that a district court must consider and
make specific findings on before revoking probation. See Austin, 295 N.W.2d at 250. The
Austin factors require a district court to (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.” Id.
Whether a district court has made the required findings for each Austin factor is a question
of law that this court reviews de novo. Modtland, 695 N.W.2d at 605; State v. Fleming,
869 N.W.2d 319, 331 (Minn. App. 2015), aff’d on other grounds, 883 N.W.2d 790 (Minn.
2016). However, “[t]he trial 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.
Rogers challenges the district court’s findings only as to the third Austin factor,
arguing that the district court’s order revoking his probation must be reversed because the
district court “failed to properly find that the need for confinement outweighed the policies
4
in favor of probation, and the record evidence does not support such a finding.” See id. at
250. When analyzing this factor, district courts must balance “the probationer’s interest in
freedom and the state’s interest in insuring his rehabilitation and the public safety.” Id. A
district court must be mindful that the purpose of probation is rehabilitation, and revocation
should be a last resort. Modtland, 695 N.W.2d at 606. But the need for confinement
outweighs the policies favoring probation if at least one of three subfactors is met:
(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.

Id. at 607 (quoting Austin, 295 N.W.2d at 251). We refer to these as the Modtland
subfactors.
However, “[district] courts should not assume that they have satisfied Austin by
reciting the three factors and offering general, non-specific reasons for revocation.” Id. at
608. Probation revocation “cannot be a reflexive reaction to an accumulation of technical
violations but requires a showing that the offender’s behavior demonstrates that he or she
cannot be counted on to avoid antisocial activity.” Austin, 295 N.W.2d at 251 (quotation
omitted). Therefore, district courts must make “thorough, fact-specific records” and “seek
to convey their substantive reasons for revocation and the evidence relied upon.”
Modtland, 695 N.W.2d at 608.
The district court order revoking Rogers’s probation identifies undisputed facts and
repeats the sentencing terms, the alleged violations identified in the probation-violation
5
reports, facts about Rogers’s November 2021 arrest, and key parts of the testimony
provided by the corrections agent during the contested disposition hearing. In concluding
that the third Austin factor was met, the district court stated:
That the need for confinement outweighs the policies favoring
probation. Confinement is necessary to protect the public from
further criminal activity by the Defendant. The Defendant is
in need of correctional treatment which can most effectively be
provided if Defendant is confined. . . . Not revoking
Defendant’s probation would unduly depreciate the
seriousness of the violations.

Though the district court’s conclusions of law recited the third Austin factor and the
three related Modtland subfactors, it provided no reasons or supporting evidence indicating
why confinement was necessary to protect the public from Rogers, why treatment would
be more effective with Rogers confined, or how the seriousness of Rogers’s violations
would be depreciated if he was allowed to remain on probation.
2 In sum, the district court
failed to convey the “substantive reasons for revocation and the evidence relied upon,” as
required by Modtland. Id.
We reverse the district court’s probation-revocation decision and remand for the
district court to make sufficient findings in accordance with the requirements of Austin and
Modtland.
Reversed and remanded.

2 As an example, a review of the record reveals that, prior to the contested disposition
hearing, Rogers completed a “comprehensive assessment” with Minnesota Adult & Teen
Challenge. However, the district court did not reference the assessment in its order
revoking Rogers’s probation.