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This opinion is nonprecedential except as provided by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
A23-0062

State of Minnesota,
Respondent,

vs.

Burton Gregory Alan Stover,
Appellant.

Filed August 21, 2023
Affirmed
Gaïtas, Judge

Stearns County District Court
File No. 73-CR-20-3206

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

Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Chief Deputy County
Attorney, St. Cloud, Minnesota (for respondent)

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

Considered and decided by Johnson, Presiding Judge; Gaïtas, Judge; and Florey,
Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Burton Gregory Alan Stover challenges the district court’s decision to
revoke his probation after his fourth probation violation, arguing that the district court erred
in determining that the need for confinement outweighed the policies favoring continued
probation. Because we discern no abuse of discretion, we affirm.
FACTS
Stover pleaded guilty to the offense of first- degree refusal to submit to chemical
testing in July 2020 .1 At his sentencing hearing a few months later, the district court
granted Stover’s motion for a downward dispositional sentencing departure over the
objection of respondent State of Minnesota. Rather than sentencing Stover to prison, the
district court stayed execution of a 41-month prison sentence and placed Stover on
probation for seven years. As conditions of probation, Stover had to complete a chemical-
dependency evaluation, follow all resulting recommendations, and abstain from alcohol,
among other requirements.
Between the September 2020 sentencing hearing and December 2021, Stover
admitted to violating his probation three times. In July 2021, Stover admitted that he had
used alcohol, failed to submit to random drug and alcohol testing, and failed to successfully
complete an intensive supervision program because he was not in regular contact with his

1 An officer arrested Stover on suspicion of driving while impaired. Following the arrest,
Stover refused to submit to a breath test for alcohol. Due to previous driving-while-
impaired incidents, Stover was charged with the felony offense of first-degree refusal,
Minn. Stat. §§ 169A.20, subd. 2(1), .24, subd. 2 (2018). Two additional offenses were
dismissed at the time of his guilty plea.
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probation agent. As a sanction for the probation violation, the district court ordered Stover
to serve four days in custody, with credit for time served, and reinstated Stover’s probation.
In September 2021, Stover again admitted to violating his probation. He
acknowledged that he had used alcohol and that he had pleaded guilty to a new charge for
negligently starting a fire. The district court reinstated Stover’s probation and ordered him
to serve 18 days in jail. Following Stover’s release from jail, he was to complete inpatient
treatment.
In December 2021, Stover admitted that he had violated his probation by failing to
complete chemical-dependency treatment and by failing to maintain contact with his
probation agent. Stover acknowledged that he had not reported for treatment upon his
release from jail in September. As a sanction for the probation violation, the district court
ordered Stover to serve 45 days in jail. But the district court ruled that Stover could be
released to a treatment program when a bed became available. The district court reinstated
Stover’s probation.
In October 2022, Stover appeared for a fourth probation-revocation hearing—the
proceeding that he now appeals. Stover’s probation officer alleged that Stover had failed
to maintain contact with probation, had traveled to Oklahoma without permission, had two
contacts with police during which he appeared intoxicated, and had acquired several new
criminal charges. During the hearing, Stover admitted that he had violated his probation
by failing to maintain contact with probation.
The parties did not agree on a disposition for the violation. Stover’s probation agent
recommended an intermediate sanction rather than execution of Stover’s prison sentence,
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proposing 90 days in jail with release to a treatment program. The probation agent
expressed concern that Stover had ongoing “mental health issues that are going
unchecked.” Stover, who was represented by counsel, agreed with the probation agent’s
recommendation. Defense counsel explained that Stover had difficulty maintaining
contact with probation due to his homelessness, alcohol and drug addiction, and lack of a
phone. Stover also addressed the district court, emphasizing his desire to participate in
treatment and his good relationship with his probation agent. But the prosecutor asked the
district court to revoke Stover’s probation. The prosecutor reminded the district court of
the state’s initial objection to a dispositional departure and noted that Stover had repeatedly
violated the conditions of his probation.
Following the arguments of the parties, the district court revoked Stover’s probation
and executed the stayed 41-month prison sentence. Stover appeals.
DECISION
Stover argues that the district court erred when it revoked his probation and
sentenced him to prison. He contends that the district court abused its discretion by finding
that the need to confine him to prison outweighed the policies that favored continued
probation.
Probation revocation is not automatic under Minnesota law. State v. McCoy, 963
N.W.2d 472, 481 (Minn. 2021) (quotation omitted); see also Minn. Stat. § 609.14 (2022).
When a criminal defendant violates any of the conditions of probation, “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). Subject to the limitation of State v. Austin, 295
5
N.W.2d 246 (Minn. 1980), the district court may “continue the stay on the same or further
terms, impose intermediate sanction, or revoke the stay and impose or order the execution
of the sentence.” State v. Jones, 869 N.W.2d 24, 27 (Minn. 2015) (citing Mi nn. Stat.
§ 609.135 (2014)).
To revoke probation and order the execution of a sentence, a district court must
make findings on three factors. Austin, 295 N.W.2d at 250 (Austin factors). First, the
district court must specifically identify the condition or conditions of probation that the
defendant violated. Id. Second, the district court must find that the violation was
intentional or inexcusable. Id. And third, the district court must find that the policies
favoring probation no longer outweigh the need for confinement. Id.
The decision to revoke probation “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.” Id. at 251 (quotation
omitted). “The purpose of probation is rehabilitation and revocation should be used only
as a last resort when treatment has failed.” Id. at 250. When analyzing the third Austin
factor, a district court 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 he is confined; or (iii) it
would unduly depreciate the seriousness of the violation if probation were not revoked.”
State v. Modtland, 695 N.W.2d 602, 607 (Minn. 2005) (quoting Austin, 295 N.W.2d at
251).
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“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.”
State v. Osborne, 732 N.W.2d 249, 253 (Minn. 2007) (quotation omitted).
Here, the district court determined that all three Austin factors weighed in favor of
revoking Stover’s probation. Stover’s challenge on appeal is limited to the district court’s
finding on the third factor. He argues that the record does not support the district court’s
finding that the need for confinement outweighed the polices favoring continued probation,
and accordingly, that the district court abused its discretion.
In considering whether the district court abused its discretion in applying the third
Austin factor to the facts in the record, we first examine the district court’s findings. The
district court acknowledged the three subfactors that it was required to consider when
making findings regarding the third Austin factor. It noted its particular focus on the third
subfactor, stating:
I’m more concerned with the third option, which is
whether or not reinstating you would unduly depreciate the
seriousness of the violation if probation were not revoked.

As I began my earlier comments, this could be
construed as a technical violation created by your indigency.
But I don’t think that to be the case. As I indicated, you made
it to another jurisdiction just fine. You made it thousands of
miles away, and you could have made it to a shorter distance
to your agent’s office.

And I’m viewing this in the context of the overall
conduct. This is your fourth violation. This has been ongoing
for a period of time. This isn’t a short period of time in which
you lost contact with your agent for a couple weeks or a month.
We’re talking an extended period. That has interfered with the
ability to monitor you. It has interfered with the ability to test
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you as demonstrated by your admission that in fact on two
occasions you were in fact intoxicated.

The offense for which you are on probation is very
serious. It is a felony DWI. You received the benefit of the
doubt of a dispositional departure earlier on in this case. And
in very short order, over the span of two years, you have
accrued four violations now. In my mind that is very serious.
It shows an utter disregard for the requirements of your
probation. And despite what I believe is your sincere request
to try to get sober and maintain sobriety, you have
demonstrated you are incapable of following even the most
basic requirement of your probationary status.

The record supports the district court ’s underlying findings regarding Stover’s
conduct and the district court’s finding that continued probation would unduly depreciate
the seriousness of the violation. Stover admitted at the revocation hearing that he had
violated probation by failing to remain in contact with his probation agent for an extended
period. This violation prevented probation from supervising Stover or offering any
rehabilitative services. The record shows that this was Stover’s fourth probation violation
within approximately two years. And, as noted by the district court, Stover was only on
probation because he received a downward dispositional departure for the serious offense
of felony test-refusal.
Stover contends that his probation violation was “technical” and not serious.
However, the district court did not abuse its discretion by determining otherwise. As the
district court observed, Stover’s failure to maintain contact with probation frustrated the
entire purpose of probation. And caselaw recognizes that a probationer’s complete lack of
compliance with supervision can be a serious violation warranting revocation. See State v.
Rottelo, 798 N.W.2d 92, 95 (Minn. App. 2011), rev. denied (Minn. July 19, 2011)
8
(affirming probation revocation for a single failure to remain in contact because the
defendant could not demonstrate compliance).
Stover suggests that the district court abused its discretion by failing to properly
account for the mitigating factors Stover offered during the revocation hearing: his
homelessness, addictions, and lack of phone access. But the record belies this argument.
The district court expressly considered and rejected Stover’s contention at the revocation
hearing that his “indigency” made his failure to maintain contact with probation a
“technical” violation.
Finally, Stover argues that the district court abused its discretion in finding that the
seriousness of the violation warranted revocation because Stover’s probation agent
recommended continued probation rather than a prison sentence. But “[t]he district court
is not required to adopt a recommendation of the probation department when determining
whether to revoke probation and order imprisonment.” State v. Fortner, 989 N.W.2d 368,
375 (Minn. App. 2023). The district court was within its discretion to reject the probation
agent’s recommendation.
Given the latitude that a district court has in addressing probation violations and the
district court’s detailed and supported findings here, we are not persuaded that the district
court erred in revoking Stover’s probation. Because the district court was within its
discretion to revoke Stover’s probation and execute the 41-month prison sentence, we
affirm.
Affirmed.