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This opinion is nonprecedential except as provided by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
A22-1324

State of Minnesota,
Respondent,

vs.

Gregory Robert Perkins,
Appellant.

Filed May 15, 2023
Affirmed
Johnson, Judge

Crow Wing County District Court
File No. 18-CR-18-1350

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

Donald F. Ryan, Crow Wing County Attorney, Candace Prigge, Assistant County
Attorney, Brainerd, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Max B. Kittel, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Worke, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
Gregory Robert Perkins was placed on probation after he pleaded guilty to a drug-
related offense. The district court later found that Perkins committed several violations of
the terms of his probation. Accordingly, the district court revoked his probation and
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executed his prison sentence. We conclude that the district court did not abuse its discretion
by determining that the need for confinement outweighs the policies favoring probation.
Therefore, we affirm.
FACTS
In April 2018, the state charged Perkins with two counts of first-degree controlled
substance crime, in violation of Minn. Stat. § 152.021, subd. 1(1) (2014), for possessing
methamphetamine with intent to sell it and conspiring to possess methamphetamine with
intent to sell it. The state alleged that, three years earlier, in April 2015, Perkins sold
methamphetamine to a confidential informant on three occasions.
At the time he was charged, Perkins was residing in Oregon, where he had moved
in 2016 after serving an 18-month prison sentence in Minnesota for an unrelated drug
crime. After Perkins failed to appear for his initial appearance, the district court issued a
warrant for his arrest. In early 2019, an Oregon law-enforcement officer stopped Perkins
for a traffic or parking violation, discovered the outstanding warrant, and arrested Perkins.
In February 2021, the state and Perkins entered into a plea agreement by which
Perkins agreed to plead guilty to count 2 and the state agreed to a 95-month stayed prison
sentence, ten years of supervised probation, and the dismissal of count 1. The district court
imposed the agreed-upon sentence.
In April 2021, Perkins’s probation agent filed a probation-violation report, alleging
that Perkins had failed to attend a meeting with the agent on two occasions, had failed to
contact the agent after missing the meetings, and had failed to provide the agent with a
change of address. When he was arrested on a warrant, Perkins was asked to submit to a
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drug test but could not provide a sample because he had eaten baking soda in an attempt to
tamper with a drug test. But Perkins admitted to using marijuana and methamphetamine.
Officers searched Perkins’s vehicle incident to his arrest and found methamphetamine,
marijuana, and drug paraphernalia. In May 2021, the state filed a new complaint in which
it charged Perkins with two more drug-related offenses.
Meanwhile, the district court conducted a hearing in mid-May 2021 on the alleged
probation violations. The district court found that the state did not prove by clear and
convincing evidence that Perkins failed to contact his probation agent because the ag ent
had an outdated address on file. But, the district court found that the state proved that
Perkins violated his probation conditions by possessing methamphetamine and marijuana
and by not submitting to a drug test. A few days later, the state and Perkins agreed to
additional probation conditions in lieu of revocation.
Two months later, in June 2021, Perkins’s probation agent filed a second probation-
violation report, alleging that Perkins failed to attend a meeting with the agent and failed
to maintain contact with her. When he was arrested on a warrant the following month in
Hennepin County, law-enforcement officers searched his vehicle and found 317 grams of
methamphetamine in the trunk. The state again filed a new complaint in which it charged
Perkins with another drug-related offense. The state later dismissed the charge after the
evidence was suppressed, which caused the state to withdraw the second probation
violation report in this case.
In February 2022, Perkins pleaded guilty to a drug-related charge arising from his
possession of methamphetamine in April 2021. The state agreed to a 25-month prison
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sentence and also agreed that Perkins could be released pending sentencing and reinstated
on probation. The district court released Perkins with additional probation conditions.
Three days later, Perkins did not attend a meeting with his probation agent, who was unable
to find him at the address Perkins had provided. Four days later, Perkins visited his
probation agent and stated that he was living at another location. Perkins agreed to submit
to a drug test but left the probation office without doing so. The probation agent filed a
third probation-violation report, alleging that Perkins failed to inform her of his current
address and failed to submit to a drug test.
In June 2022, the district court held a probation-violation hearing related to the
probation violations alleged in February 2022. Perkins testified that he stayed at a different
address to avoid bad influences at the address he had provided to his probation agent. He
testified that he could not complete the drug test within the allotted two-hour window and
left the probation office after he could not locate his probation agent. The district court
found that the state proved by clear and convincing evidence that Perkins committed the
alleged violations.
At a dispositional hearing, the state asked the district court to revoke Perkins’s
probation and execute his 95-month prison sentence. Perkins requested that the district
court keep him on probation. Perkins testified that he was sober while living in Oregon
but began using drugs again after he returned to Minnesota. He testified that he missed a
probation meeting in February 2022 because a person who had agreed to give him a ride
did not pick him up. Perkins’s adult daughter, who lives in Oregon, testified that, when
Perkins lived in Oregon, he had no criminal charges. She further testified that, if Perkins’s
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probation were transferred to Oregon, treatment would be available to him, and she would
help him comply with the conditions of his probation. The probation agent recommended
that the district court execute Perkins’s sentence because of his continued failure to comply
with his probation conditions.
The district court revoked Perkins’s probation and executed his 95- month prison
sentence after finding that Perkins’s violations were intentional and inexcusable and that
the need for confinement outweighed the policies favoring probation. Perkins appeals.
DECISION
Perkins argues that the district court erred by revoking his probation and executing
his prison sentence.
If a probationer violates one or more conditions of probation, a district court may
either continue the probationer 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 violations were “intentional or inexcusable,” and (3) finds
“that need for confinement outweighs the policies favoring probation.” State v. Austin, 295
N.W.2d 246, 250 (Minn. 1980). In making these findings, a district court “must seek to
convey their substantive reasons for revocation and the evidence relied upon.” State v.
Modtland, 695 N.W.2d 602, 608 (Minn. 2005). An appellate court applies an abuse- of-
discretion standard of review to a district court’s decision to revoke probation. Id. at 605.
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In this case, the district court made an express finding with respect to each of the
three Austin factors. The district court also explained its decision by reciting the events
that had occurred since Perkins’s guilty plea. The district court noted that Perkins received
“a very favorable outcome in February of 2021, getting the benefit of a downward
dispositional departure” because it was “deemed worth a shot as there was a hope that he
would be amenable to chemical dependency treatment.” The district court noted that
Perkins proceeded to commit several probation violations, while making excuses that the
district court did not accept and playing what the district court called a “cat-and -mouse
game” with his probation agent. The district court commented t hat a probation agent
cannot “supervise somebody who is not cooperative, who makes excuses constantly, [and]
who fails the simplest directions.”
Perkins challenges the district court’s findings only with respect to the third Austin
factor: that the need for confinement outweighs the policies favoring probation. See Austin,
295 N.W.2d at 250. A district court may find that the third Austin factor is satisfied if any
of three sub-factors are present: (1) confinement is needed to “‘ protect the public from
further criminal activity by the offender,’” (2) confinement is necessary to provide
treatment, or (3) a further stay of the sentence “‘ would unduly depreciate the seriousness
of the violation.’” Id. at 251 (quoting A.B.A. Standards for Criminal Justice, Probation
§ 5.1(a) (Approved Draft 1970)).
The district court found that all three sub-factors support revocation. With respect
to the first sub-factor, the district court found that confinement was “necessary to protect
the public from future criminal activity.” The district court elaborated by saying that
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Perkins has a “proclivity to engage in activities shown by history to make it easier for other
people to get methamphetamine and drugs that kill and ruin people’s lives.”
Perkins contends that the district court erred in making this finding on the ground
that his recent criminal activity consisted only of the use and possession of
methamphetamine, which is unlike the underlying charge of selling methamphetamine.
Perkins further contends that his recent criminal activity was adequately addressed by the
25-month prison sentence that was imposed in February 2022.
The record supports the district court’s finding with respect to the first sub-factor.
Perkins admitted to using methamphetamine only two months after his 2021 arrest and
release from prison. It was not unreasonable for the district court to consider Perkins’s
recent possession of methamphetamine in the context of his conviction of conspiracy to
sell methamphetamine. Perkins is incorrect that he was sentenced to 25 months of
imprisonment for his probation violation. By agreement of the parties, the district court
continued his probation in February 2022. The district court imposed a prison sentence
because he had pleaded guilty to new charges. The district court did not abuse its discretion
by finding that confinement in prison is ne cessary to protect the public from further
criminal activity.
With respect to the third sub-factor, the district court found that to not revoke
Perkins’s probation would unduly depreciate the seriousness of Perkins’s violations.
Perkins again contends that he already received a 25-month prison sentence for the conduct
that led to the probation-violation report . Perkins also contends that the district court’s
finding is “a reflexive reaction to an accumulation of technical violations,” which do not
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show that his “behavior demonstrates that he . . . cannot be counted on to avoid antisocial
activity.” See Austin, 295 N.W.2d at 251 (quotation omitted).
The record supports the district court’s finding with respect to the third sub-factor.
The district court gave Perkins several opportunities to abide by the terms of his probation,
despite violations ranging from using drugs, deceptively attempting to conceal drug use
from a drug test, failing to appear for meetings with his probation agent, and failing to keep
his probation agent apprised of his address. Perkins violated the terms of his probation
within two months of his sentencing hearing and continued to commit violations after the
district court continued his probation. The district court did not abuse its discretion by
finding that to not revoke Perkins’s probation would unduly depreciate the seriousness of
Perkins’s violations.
Because the district court’s findings on the first and third sub-factors are sufficient
to satisfy the third Austin factor, we need not consider Perkins’s arguments concerning the
second sub-factor.
In sum, the district court did not err by revoking Perkins’s probation and executing
his sentence.
Affirmed.