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This opinion is nonprecedential except as provided by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
A23-0334

State of Minnesota,
Respondent,

vs.

Derek Charles Megraw,
Appellant.

Filed October 23, 2023
Affirmed
Johnson, Judge

Mower County District Court
File No. 50-CR-20-1301

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

Kristen Nelsen, Mower County Attorney, Scott K. Springer, Assistant County Attorney,
Austin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrew J. Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Johnson, Judge; and Ki rk,
Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
JOHNSON, Judge
Derek Charles Megraw pleaded guilty to four counts of possessing pornographic
work involving minors. He received a stayed sentence and was placed on probation. The
district court later revoked Megraw’s probation after finding that he committed four
violations of conditions of his probation. We conclude that the district court did not err by
finding that the need for confinement outweighs the policies favoring probation.
Therefore, we affirm.
FACTS
In July 2020, law-enforcement officers searched Megraw’s home pursuant to a
warrant and seized various computers, electronic devices, and storage media. The state
thereafter charged Megraw with five counts of possessing pornographic work involving a
minor, in violation of Minn. Stat. § 617.247, subd. 4(a) (2016). Additional investigation
revealed that Megraw possessed more than 400,000 digital files that were suspected of
containing child pornography. The state filed an amended complaint in which it charged
Megraw with five additional counts of possessing pornographic work involving minors.
In May 2022, Megraw and the state entered into a plea agreement by which Megraw
agreed to plead guilty to counts 6, 7, 8, and 9 and the state agreed to dismiss the remaining
counts. Megraw admitted at a plea hearing that he downloaded the four digital files
corresponding to counts 6, 7, 8, and 9 on dates in 2017, 2018, 2019, and 2020, respectively.
The district court ordered a pre-sentence investigation, including a psychosexual
evaluation.
3
At the sentencing hearing in September 2022, the state noted that the psychologist
who conducted the psychosexual evaluation recommended that Megraw not have any
contact with his 18-year-old stepdaughter, M.D. The state urged the district court to adopt
that recommendation and to extend it to M.D.’s twin sister, F.D. The district court imposed
concurrent stayed sentences of 15, 20, 25, and 30 months, respectively, and placed Megraw
on probation for seven years. Among the numerous conditions of probation was the
condition that Megraw not have unsupervised contact with minors without the approval of
his probation agent and, in addition, not have contact with M.D. or F.D. without the
approval of his probation agent.
In October 2022, law-enforcement officers received a report that Megraw was living
in the same home as M.D. and F.D. In November 2022, a police officer and Megraw’s
probation agent conducted a search of the home. M.D., F.D., and Megraw were present at
the home at the time of the search. Megraw was observed exiting a basement bedroom
wearing only a bathrobe. The police officer believed that Megraw had been sleeping in the
bedroom. Inside the bedroom, a police officer found a student-identification card
belonging to M.D. and female clothing in a dresser. M.D. admitted to the officer that she
sometimes slept in the same bed as Megraw, but she denied engaging in sexual activity
with him. Megraw’s probation agent also found a cell phone, which was seized and
examined.
In November 2022, Megraw’s probation agent filed a probation-violation report
alleging that Megraw violated four conditions of his probation: (1) possessing an
unmonitored cell phone, (2) using the unmonitored cell phone to search the internet for
4
pornography, (3) having contact with M.D. and F.D. by residing in the same home in which
they resided, and (4) having contact with M.D. via text messages.
In December 2022, the district court held a contested revocation hearing. At the
outset of the hearing, Megraw admitted most of the allegations but denied conducting
internet searches on the seized cell phone, which he said belonged to his employer and was
used by multiple employees. Megraw’s probation agent testified that the seized cell phone
contained text messages between Megraw and M.D. that began in August 2022—three
months after the plea hearing and one month before the sentencing hearing—and continued
until seven days after the sentencing hearing. The probation agent also testified that the
dates and times of the text messages generally coincided with the dates and times of the
pornography-related internet searches.
When allowed to address the court near the conclusion of the hearing, Megraw
stated that he was allowed to live with M.D. and F.D. before sentencing and did not want
to evict them from his home after sentencing because their mother and father do not provide
for them. He stated further that it was financially difficult for him to live elsewhere, that
he was “trying to survive,” and that he had since found a new place to live apart from M.D.
and F.D.
The district court found that Megraw had committed each of the alleged probation
violations, that the violations were intentional and inexcusable, and that the need for
confinement outweighed the policies favoring probation. The district court revoked
Megraw’s probation and executed his prison sentences. Megraw appeals.
5
DECISION
Megraw argues that the district court erred by revoking his probation and executing
his prison sentences.
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
underlying 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. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). A district court may revoke
probation only if the court (1) designates the specific conditions of probation that have
been violated, (2) finds that the violations were “intentional or inexcusable,” and (3) finds
“that need for confinement outweighs the policies favoring probation.” Id. A district court
may find that the third Austin factor is satisfied if it finds that any of three sub-factors are
present: (1) “‘confinement is necessary to protect the public from further 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) 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)). In making these findings,
district courts “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.
6
In this case, the district court found that Megraw violated conditions of his probation
in four ways and made express finding s with respect to each of the three Austin factors.
Megraw 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.
The district court found that the third Austin factor is satisfied based on the third
sub-factor: that a further stay of the sentence “would unduly depreciate the seriousness of
the violation.” See id. at 251 (quotation omitted). In doing so, the district court found that
Megraw was not credible in denying that he used the seized cell phone for conducting
pornography-related internet searches. But the district court focused primarily on the fact
that Megraw contacted M.D. by text messages only one week after sentencing and was
living with M.D. and F.D. only one month after sentencing. The district court described
those violations as “serious and egregious,” adding that it appeared that Megraw had
“groomed these girls up until they became eighteen.” The district court stated to Megraw
that, “within a week of sentencing, you should have been on your best behavior,” and “i f
that’s your best behavior, then there really isn’t any help here.”
Megraw contends that, as stated in Austin, the “purpose of probation is rehabilitation
and revocation should be used only as a last resort when treatment has failed.” See id. at
250. Quoting further from Austin, he contends, “The decision to revoke 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.” See id. at 251 (quotations omitted).
7
The record supports the district court’s finding that continuing Megraw on probation
would unduly depreciate the seriousness of his probation violations. Megraw violated
conditions of his probation in multiple ways soon after his sentencing hearing. He
contacted M.D. by text only seven days after sentencing. He was living in the same home
as M.D. and F.D. only one month after sentencing. The record indicates that Megraw
sometimes slept in the same bed as M.D. Megraw contends that his residing with M.D.
and F.D. is “understandable” inasmuch as he initially moved out of the home he previously
shared with them and lived in his car, which was difficult. Despite Megraw’s explanation,
the number, gravity, and timing of his violations supports the district court’s finding that
continuing him on probation would unduly depreciate the seriousness of his probation
violations.
Megraw also contends that the district court erred by not imposing intermediate
sanctions, such as a jail sentence, sex-offender treatment, or a GPS bracelet, which were
recommended by Megraw’s probation agent. A district court’s discretion is not necessarily
confined by a probation agent’s recommendation. See State v. Fortner, 989 N.W.2d 368,
375 (Minn. App. 2023). Indeed, a district court must make an independent determination
as to whether probation should be revoked and may, if appropriate, reject a joint
recommendation for intermediate sanctions. Id. at 375-76. In this case, however, the
parties and the probation agent did not agree on intermediate sanctions. T he probation
agent testified at the revocation hearing that he did “not disagree with” the state’s request
for revocation, and he expressed concern that Megraw was not amenable to probation.
Megraw asserts that the district court should have expressly stated why revocation was
8
preferred over intermediate sanctions. But Megraw does not cite any authority for the
proposition that a district court must make express findings of that type, and we are not
aware of any such caselaw. The district court surely was aware of the availability of
intermediate sanctions but determined that revocation was warranted. The district court
did not abuse its discretion in making that decision.
In sum, the district court did not err by revoking Megraw’s probation and executing
his sentences.
Affirmed.