State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1459

State of Minnesota,
Respondent,

vs.

Victor Steven Fortner,
Appellant.

Filed April 10, 2023
Affirmed
Larkin, Judge

Olmstead County District Court
File No. 55-CR-21-4286

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

Mark A. Ostrem, Olmsted County Attorney, A. Michael DeBolt, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

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

Considered and decided by Slieter, Presiding Judge; Connolly, Judge; and Larkin,
Judge.
SYLLABUS
When determining whether to revoke probation and order imprisonment, a district
court must independently determine whether revocation and imprisonment are appropriate
under the applicable legal standards and is not bound by a joint recommendation of the
parties and the probation department to continue the offender on probation.

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OPINION
LARKIN, Judge
Appellant challenges the district court’s order revoking his probation, arguing that
the district court abused its discretion by concluding that the need for his confinement
outweighed the policies favoring probation. Appellant emphasizes that the parties and the
probation department jointly recommended that he continue on probation. Because the
district court did not abuse its discretion in rejecting that recommendation, we affirm.
FACTS
On November 16, 2021, appellant Victor Steven Fortner pleaded guilty to
introducing a controlled substance into a state correctional facility. On February 28, 2022,
the district court granted Fortner’s motion for a downward dispositional departure, stayed
execution of the presumptive 24-month prison sentence, and placed Fortner on supervised
probation for five years. Among his conditions of probation, For tner was required to
abstain from chemical use; enter and successfully complete the l ong-term chemical
dependency treatment program at Minnesota Adult and Teen Challenge (Teen Challenge);
avoid contact with any people or establishments involved in the sale, use, or distribution
of drugs and alcohol; and notify probation of any contact with law enforcement within 72
hours of such contact.
In granting the downward dispositional departure, the district court determined that
Fortner was particularly amenable to both probation and long-term chemical-dependency
treatment based on the recommendation of the probation department and Fortner’s
acceptance at Teen Challenge. The district court explained that “getting [Fortner]
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treatment, getting [Fortner] into a place of long term sobriety . . . serves the best interest of
public safety.”
On March 8, 2022, Fortner started long-term treatment at Teen Challenge. On April
12, 2022, Fortner told his probation officer that he had to leave inpatient chemical-
dependency treatment because his girlfriend was going to federal prison in July. Fortner’s
probation officer informed Fortner that he needed to remain in treatment, but Fortner left
Teen Challenge the next day against staff advice and without permission from his probation
officer. Fortner signed a sanctions order for violating probation and was ordered to “re-
engage with chemical dependency services.”
In the three months that followed, Fortner was in outpatient treatment at Fountain
Centers, but he reportedly had “thirteen incidents of various no-shows, missed UA’s,
logging in late or leaving early” and was discharged from that program. On June 7, 2022,
Fortner had contact with police while at a park with his girlfriend, who had overdosed, and
he did not notify his probation officer of the police contact. Between June 16 and July 13,
Fortner tested positive for alcohol or fentanyl five times, and he admitted to two other
instances of alcohol consumption. On July 22, 2022, Fortner was found intoxicated in his
car, which he had driven into a ditch. The state subsequently charged him with driving
while impaired and fifth-degree possession of a controlled substance.
On July 25, 2022, the probation department filed a violation report with the district
court, alleging that Fortner had violated the no-chemical-use and the no-contact conditions
of his probation, as well as the requirement that he notify probation within 72 hours if he
had contact with law enforcement. The probation department reported that Fortner “has
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engaged in a cat and mouse game of using a legal means to mask his abuse of marijuana
and amphetamine” and that he continued to consume alcohol. The probation department
recommended that Fortner be released to Teen Challenge and, upon completion of its long-
term treatment program, be placed on electronic home monitoring for 45-90 days.
On July 26, 2022, Fortner appeared for a probation-violation hearing. In discussing
whether Fortner wanted to admit the alleged probation violations, the district court asked
Fortner if he understood that “it’s possible that the [district] court could revoke [his] stay
of execution and send [him] to prison.” Fortner responded that he “did not know that,” but
after a brief discussion, he stated that he understood that the district court did not
“necessarily have to follow the recommendations of probation.” Fortner waived his rights
to a contested hearing and admitted to the three probation violations.
The district court informed the parties that it would continue the hearing and that it
would “be giving strong consideration as to whether or not [Fortner] is going to remain on
probation.” The district court stated that it was “more than happy” to hear arguments as to
why Fortner should be allowed to remain on probation, but the district court noted that the
allegations and the admissions “here today are extremely serious given the nature of the
underlying offense.”
On August 1, 2022, the parties returned for the continued hearing. The district court
informed the parties that they were there to discuss the third “ Austin” factor. The
prosecutor informed the court that it was his understanding that there would not be “a
contested third Austin factor hearing,” that “the recommendations [were] of mutual
agreement by both parties,” and that those recommendations would be presented to the
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court by a representative of the probation department. The prosecutor, Fortner, and the
probation department then jointly recommended that Fortner continue on probation and re-
enter the long-term treatment program at Teen Challenge.
The district court again stated that it was considering revoking Fortner’s probation
and explained:
The law in this area is very grey, judges are given a lot of
discretion and unless some other appellate court tells me that
I’ve really screwed things up, it’s pretty much up to me. And
what I need to find today is whether the policies governing
probation are outweighed [by] the need for confinement. And
the law . . . tells me that I need to look at your interest in
freedom against the state’s interest in ensuring public safety
and your rehabilitation. I should be considering whether
confinement is necessary to protect the public from further
criminal activity by you, whether you’re in need of correctional
treatment that can be more effectively provided if you’re
confined[,] or if I don ’t revoke probation if it would unduly
depreciate the seriousness of the violation.

(Emphasis added.)
During the hearing, Fortner’s probation officer summarized the joint
recommendation for continued probation. Fortner’s attorney provided a brief argument,
and Fortner made a statement. The district court indicated that it needed more time to
consider the issue and continued the hearing a second time.
On August 4, 2022, the parties appeared for the second continued hearing. The
district court announced that it had decided to revoke Fortner’s probation and explained:
I find that there’s clear and convincing evidence in the record
that you need correctional treatment that can most effectively
be provided if you’re confined and I’m speaking directly to
chemical dependency treatment. I understand that there is
chemical dependency treatment available for you in the
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community. The problem with that though is that it is the same
chemical dependency treatment that was available for you
when I sentenced you which you completed the short-term but
almost immediately left the long-term program against their
advice and without their permission.

It was my hope and my expectation because you
promised me when I sentenced you that you would enter into
and successfully complete that long-term program and you had
looked to even go further than that and start getting involved
in the leadership there. That hope and that promise were not
fulfilled. I’m sad about that, I’m disappointed in that but to
send you back to that program that you voluntarily removed
yourself from and then not only removed yourself from but
went back right into the same pattern of use, dishonesty,
manipulation that formed the basis of all the addiction issues
that led you to that place. It reenforces the need for treatment
and I’m just not satisfied that I can be convinced that you’re
going to take advantage of it in the community anymore. . . .

So while I agree that there is programming available for
you in the community, I just don’t have the confidence based
on your history of failed treatments, some successes to be fair,
but most recently the very disappointing failed treatment at
Teen Challenge and then the discharge from Fountain Centers.
I just can’t be convinced that it’s going to get done in the
community and you need it for yourself as well as the people
around you.

Secondly, I’m also finding that there ’s clear and
convincing evidence in the record that it would unduly
depreciate the seriousness of these violations if I didn’t revoke
probation. This was a presumptive commitment to prison; it
was granted over the state’s vehement opposition.

. . . .

. . . The real focus and the real reason why I chose to
give you your opportunity here on this departure was because
I saw a lot of promise in the path that you were on. And the
path that you were on was one of sobriety, it was one of moving
forward in your personal life, your personal faith, you had a
strong support network and it sounds like you still have a lot of
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support but the real focus of that was this issue of sobriety and
continued moving forward with, you know, putting life back
together. And these violations just cut against that 100
percent. It’s not just that you went out there and, you know,
had a relapse, this was ongoing regular use and it involved
some very serious, dangerous, drugs, I mean, you had Fentanyl
in your system, you know, and I suspect there were other drugs
involved as well. And so, you know, the seriousness of
violations when I look back at the reasons why it is that the
departure was granted, I just can’t overlook them. So those are
the reasons why it is that I’m choosing to execute the sentence.

(Emphasis added.)
The district court revoked Fortner’s probation and executed his 24-month prison
sentence.
Fortner appeals the revocation of his probation.
ISSUE
Did the district court abuse its discretion by revoking Fortner’s probation and
executing his stayed prison sentence?
ANALYSIS
Fortner contends that the district court “abused its discretion because all parties
including probation agreed probation should be reinstated” and because “the record does
not establish that the need for confinement outweighed the policies favoring probation.”
Minnesota statutes provide that “[e]xcept when a sentence of life imprisonment is
required by law, or when a mandatory minimum sentence is required,” a district court “may
stay imposition or execution of sentence and . . . may place the defendant on probation,”
the conditions of which may include intermediate sanctions. Minn. Stat. § 609.135, subd.
1(a)(2) (2022). If it appears that a defendant “has violated any of the conditions of
8
probation or intermediate sanction, or has otherwise been guilty of misconduct which
warrants the imposing or execution of sentence, the court may without notice revoke the
stay and direct that the defendant be taken into immediate custody.” Minn. Stat. § 609.14,
subd. 1(a) (2022). “The defendant shall thereupon be notified in writing and in such
manner as the court directs of the grounds alleged to exist for revocation of the stay of
imposition or execution of sentence.” Id., subd. 2 (2022).
If the defendant challenges the grounds for revocation, “a summary hearing shall be
held thereon at which the defendant is entitled to be heard and to be represented by
counsel.” Id. If the district court finds there are grounds to revoke probation and if a
sentence was previously imposed and its execution stayed, the court may “continue such
stay and place the defendant on probation or order intermediate sanctions in accordance
with the provisions of [Minn. Stat. § 609.135 (2022)], or order execution of the sen tence
previously imposed.” Id., subd. 3(2) (2022) (emphasis added).
The Minnesota Rules of Criminal Procedure set forth a more detailed process for
revocation proceedings and similarly provide that if the district court finds or
the probationer admits a probation violation, the court may execute the offender’s
sentence. Minn. R. Crim. P. 27.04, subd. 3(2)(b).
“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). A district court
“abuses its discretion when its decision is based on an erroneous view of the law or is
9
against logic and the facts in the r ecord.” State v. Currin, 974 N.W.2d 567, 571 (Minn.
2022) (quotation omitted).
Before a district court revokes a defendant’s 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 probation” (the Austin factors). Austin, 295 N.W.2d at 250.
As to the first two Austin factors, the district court revoked Fortner ’s probation for
using alcohol or mood-altering substances, for having contact with someone known to use
controlled substances, and for failing to notify his probation officer within 72 hours of his
contact with law enforcement. Fortner admitted that his actions violated conditions of his
probation, and the district court found the violations to be intentional and inexcusable.
Fortner does not dispute those issues on appeal. Instead, he challenges the district court’s
determination regarding the third Austin factor.
Once a district court finds an intentional or inexcusable violation of a specific
probationary condition, it must “determine whether the need for confinement outweighs
the policies favoring probation.” State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005).
In doing so, the district court “must balance the probationer’ s interest in freedom and the
state’s interest in insuring his rehabilitation and the public safety.” Id. at 606-07 (quotation
omitted). The district court must bear in mind that “the purpose of probation is
rehabilitation and revocation should be used only as a last resort when treatment has
failed.” Id. at 606 (quotation omitted).
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Revocation followed by imprisonment should not be the disposition unless the court
makes one of the following findings based on the original offense and the intervening
conduct of the offender: (1) “confinement is necessary to protect the public from furth er
criminal activity by the offender,” (2) “the offender is in need of correctional treatment
which can most effectively be provided if he is confined,” or (3) “it would unduly
depreciate the seriousness of the violation if probation were not revoked.” Id. at 607
(quotation omitted). The district court determined that the last two factors supported
revocation and imprisonment in this case.
We first address Fortner’s contention that the district court abused its discretion
because the parties and the probation department agreed that he should have continued on
probation. Fortner asserts that the district court improperly “considered revocation sua
sponte.” He notes that “[n]o one requested that the district court revoke Fortner’s
probation” and that “[r]evocation was not even seriously contemplated by the parties.”
Fortner essentially argues that a district court abuses its discretion if it revokes probation
when there is a joint recommendation from the parties and the probation department to
continue an offender on probation.
Fortner does not cite, nor are we aware of, any authority that supports his position.
The district court is not required to adopt a recommendation of the probation department
when determining whether to revoke probation and order imprisonment. In fact, in the
related context of a district court’s reliance on a diagnostic assessment as grounds for a
downward dispositional sentencing departure, the Minnesota Supreme Court has said that
“the mere fact that [a] person who prepared a report for the district court reached a certain
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conclusion does not necessarily justify departing from the presumptive disposition under
the guidelines.” State v. Soto, 855 N.W.2d 303, 309 (Minn. 2014) (quotation omitted).
Moreover, district courts genera lly are not bound by agreements of the parties in
criminal cases. For example, a “judge may accept a plea agreement of the parties when the
interest of justice would be served.” Minn. R. Crim. P. 15.04, subd. 3(3) (emphasis added).
And a judge may not base a decision to depart from the presumptive sentences under the
Minnesota Sentencing Guidelines solely on a plea agreement. State v. Misquadace, 644
N.W.2d 65, 71 (Minn. 2002). Similarly, appellate courts are not bound by the parties’
agreements or concessions on legal issues. See State v. Hannuksela, 452 N.W.2d 668, 673
n.7 (Minn. 1990) (“[I]t is the responsibility of appellate courts to decide cases in
accordance with law, and that responsibility is not to be diluted by counsel’s oversights,
lack of research, failure to specify issues or to cite relevant authorities.” (quotation
omitted)).
For those reasons, we reject Fortner’s contention that the district court abused its
discretion simply because it did not follow the joint recommendation of the parties and the
probation department. A district court is not bound by such a recommendation. Instead,
the district court must independently determine whether revocation is appropriate—much
like a district court must independently determine whether to accept a plea agreement. See
Minn. R. Crim. P. 15.04, subd. 3. In doing so, the district court must consider the reasons
for and against revocation. See State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984)
(stating that the district court “erred in putting aside arguments for departure rather than
considering them alongside valid reasons for non-departure” because such an approach
12
constitutes a failure to exercise discretion (quotation omitted)). The district court did so
here.
In sum, the district court did not abuse its discretion by choosing not to follow the
joint recommendation to continue Fortner on probation.
We next address Fortner’s contention that the record does not establish that the need
for his confinement outweighed the policies favoring probation. In concluding that Fortner
needed correctional treatment in a confined environment, the district court reasoned that
although chemical-dependency treatment was available to Fortner in the community, it was
the same treatment program that was made available to him when he was sentenced. The
district court explained that, although its “hope and [its] expectation” was that Fortner
would succeed in that program, Fortner ultimately left the program and “went back right
into the same pattern of use, dishonesty, [and] manipulation that formed the basis of all the
addiction issues that led [him] to that place.” The district court’ s detailed explanation
included the following reasoning:
I just don’t have the confidence based on your history of failed
treatments, some successes to be fair, but most recently the
very disappointing failed treatment at Teen Challenge and then
the discharge from Fountain Centers. I just can’t be convinced
that it’s going to get done in the community and you need it for
yourself as well as the people around you.

(Emphasis added.)
The district court also determined that not revoking Fortner’s probation would
unduly depreciate the seriousness of the violation. The court noted that Fortner had been
granted a departure “over the state’s vehement opposition ” and that both the underlying
13
offense and the probation violations were “serious.” The district court stated that it granted
Fortner a departure because it “saw a lot of promise” in Fortner, but reasoned that it could
not overlook the probation violations because
the path that [Fortner was] on was one of sobriety, it was one
of moving forward in [his] personal life, [his] personal faith,
[he] had a strong support network . . . but the real focus of [the
departure] was this issue of sobriety and continued moving
forward with, you know, putting life back together. And these
violations just cut against that 100 percent.

(Emphasis added.) See State v. Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015) (stating
that the district court properly considered a “grant of a downward dispositional departure
when deciding whether to revoke probation”), aff’d, 883 N.W.2d 790 (Minn. 2016).
We do not see what more the district court could have said to convey the reasons
for its decision to revoke Fortner’s probation and send him to prison. See Modtland, 695
N.W.2d at 608 (stating that “general, non- specific reasons for revocation” do not satisfy
the Austin analysis). As the supreme court explained:
The requirement that courts make findings under the
Austin factors assures that district court judges will create
thorough, fact -specific records setting forth their reasons for
revoking probation. We emphasize that, in making the three
Austin findings, courts are not charged with merely conforming
to procedural requirements; rather, courts must seek to convey
their substantive reasons for revocation and the evidence
relied upon.

Id. (emphasis added). The district court did so here.
“The decision to revoke . . . requires a showing that the offender’s behavior
demonstrates that he or she cannot be counted on to avoid antisocial activity.” Austin, 295
14
N.W.2d at 251 (emphasis added) (quotation omitted). In Austin, the supreme court
concluded revocation was appropriate because:
The appellant has been offered treatment but has failed
to take advantage of the opportunity or to show a commitment
to rehabilitation so it was not unreasonable to conclude that
treatment had failed. Moreover, the record shows the
seriousness of his violation would be denigrated if probation
were not revoked. Consequently, under these facts, policy
considerations required revocation.

Id. The same can be said of the circumstances here.
In sum, the district court’s determinations that Fortner needed treatment in a
confined setting and that not revoking probation would unduly depreciate the seriousness
of the violations were well explained and supported by the record.1
In conclusion, we note that district courts are entrusted with discretion to make
difficult, independent decisions regarding the need for revocation and imprisonment when
an offender is found to have violated probation. Although a proper exercise of that
discretion requires the district court to consider both the reasons for and against revocation
and imprisonment, the district court is not required to follow any joint recommendation of

1 Because the record supports the district court’s determinations that Fortner needed
treatment in a confined setting and that not revoking probation would unduly depreciate
the seriousness of the violations, we do not consider Fortner’s argument that confinement
was not necessary to protect the public. Although the district court noted that there were
“a host of reasons” that put Fortner “and the people around [him] in danger based on [his]
history,” a district court needs to rely on only one of the policy bases discussed in Modtland
to support a determination that the need for confinement outweighs the policies favoring
probation. See Modtland, 695 N.W.2d at 607 (using the disjunctive “or” in discussing the
bases for revocation and imprisonment).
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the parties and the probation department. The ultimate decision whether to order
revocation and imprisonment lies solely within the district court’s discretion.
DECISION
In this case, the district court satisfied the requirements of Austin and Modtland,
considered the reasons for and against revocation and imprisonment, and rendered a
decision that is neither inconsistent with the record nor illogical. There is no basis to
conclude that the district court abused its discretion in revoking Fortner’s probation and
sending him to prison.
Affirmed.