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This opinion is nonprecedential except as provided by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
A23-0492

State of Minnesota,
Respondent,

vs.

Cory Donald Ziesemer,
Appellant.

Filed October 30, 2023
Affirmed
Connolly, Judge

Douglas County District Court
File No. 21-CR-20-2026

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

Chad M. Larson, Douglas County Attorney, Alexandria, Minnesota (for respondent)

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

Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and
Schmidt, Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
On appeal from a decision revoking his probation and executing his prison sentence,
appellant arg ues that the district court abused its discretion in revoking his probation
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because the policies favoring probation outweighed the need for confinement. Because the
district court acted within its discretion in revoking appellant’s probation, we affirm.
FACTS
In April 2021, appellant Cory Ziesemer pleaded guilty to fifth-degree possession of
methamphetamine. The district court sentenced appellant to 15 months in prison, but
stayed execution of that sentence, and placed appellant on probation for five y ears. The
conditions of appellant’s probation required that he abstain from alcohol and controlled
substances, and remain law abiding.
While on probation, appellant began receiving intensive mental -health treatment
and services through an Assertive Community Treatment (ACT) team. But in April 2022,
respondent State of Minnesota charged appellant with fourth -degree criminal damage to
property and two counts of felony driving while impaired (DWI). In light of the new
charges, a probation violation report was filed alleging that appellant violated the terms of
his probation for the fifth -degree possession offense by failing to remain law abiding and
failing to abstain from alcohol and mood-altering chemicals.
Appellant agreed to plead guilty to one count of DWI and to admit to the probation
violation. As part of this agreement, respondent agreed to recommend a downward
dispositional departure consisting of a stayed 60-month prison sentence and 90 days in jail
for the new DWI, and for appellant to be reinstated on probation for the fifth -degree
possession offense.
On May 26, 2022, the district court sentenced appellant for the DWI offense in
accordance with the plea agreement , and reinstated appellant’s probation . But less than
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two weeks later, appellant was arrested for driving after cancelation. A report was
subsequently filed alleging that appellant had violated the terms of his probation by failing
to abstain from alcohol and failing to remain law abiding. A later addendum to the
probation violation alleged that appellant also failed to abstain from chemicals because he
tested positive for methamphetamine and marijuana, and failed to remain law abiding
because (1) he was charged with disorderly conduct on July 7, 2022, (2) an order fo r
protection (OFP) was filed against appellant on July 6, 2022, and (3) appellant was arrested
and charged with unlawful possession of a firearm on July 12, 2022.
On November 7, 2022, a second addendum to the probation violation report alleged
that appellant violated the terms of his probation by failing to abstain from mood altering
chemicals after he tested positive for methamphetamine, marijuana, and alcohol on
November 4, 2022. A nd a third addendum to the probation violation report was filed on
December 28, 2022, alleging that appellant was struggling with his mental health , and
again tested positive for methamphetamine and marijuana.
A probation violation hearing was held in January 2023, at which appellant
admitting using alcohol in June and July of 2022. He also did not dispute having used
methamphetamine that summer, and admitted that he “[m]ight have” used
methamphetamine in November 2022. Respondent did not pursue the failure -to-remain-
law-abiding violations because “those charges [were] still pending.”
The district court found that appellant provided “sufficient facts” to support his
“admission to the probation violations . . ., specifically the failure to abstain from non -
prescribed controlled substance, specifically the methampheta mine, from June, July, and
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November.” The district court also found that appellant’s violations were “intentional and
inexcusable.” The district court then stated:
I don’t know that there are any services left that are available.
I think that the need f or confinement here outweighs the
policies favoring probation. Confinement, in other words,
sending you to prison, is necessary to stop this kind of criminal
activity. The driving while impaired is really concerning. I
mean, you could kill yourself, kil l somebody else. You don’t
want that kind of weight either. And there just aren’t good
treatment options here available. I think that a period of
enforced sobriety, which can most effectively be provided in
the correctional setting, in the prison settin g, is necessary. I
don’t think there are any other treatment options for you here.

The district court, therefore, revoked appellant’s probation and executed his 60 -month
sentence for the DWI offense, and the concurrent 15 -month sentence for the fifth -degree
possession offense. This appeal follows.1
DECISION
Appellant challenges the district court’s decision to revoke his probation and
execute his prison sentence. Whether to revoke probation is within the district court’s
discretion, and we will rever se a probation revocation only if there is a clear abuse of
discretion. State v. Austin , 295 N.W.2d 246, 249 -50 (Minn. 1980). Whether the district
court made the required findings is a question of law that is reviewed de novo. State v.
Modtland, 695 N.W.2d 602, 605 (Minn. 2005).

1 Respondent did not file a brief in this appeal , and we ordered that the appeal proceed
under Minn. R. Civ. App. P. 142.03, which provides that if a respondent fails to file a brief,
then the case shall be determined on its merits.
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When a defendant violates a condition of probation, the district court may revoke
probation and execute the previously stayed sentence. Minn. Stat. § 609.14, subds. 1, 3
(2022). Before revoking a defendant ’s probation and ex ecuting the stayed sentence, the
district court must (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.” Austin, 295 N.W.2d at 250.
Appellant challenges only the third Austin factor. Under 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. To make a finding on the third Austin factor, the
district court considers three “ Modtland subfactors”: whether (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) “it would unduly depreciate the seriousness of the violation if probation
were not revoked.” Modtland, 695 N.W.2d at 607 (quotation omitted). Only one of the
Modtland subfactors is necessary to support revocation. See Goldman v. Greenwood, 748
N.W.2d 279, 283 (Minn. 2008) (stating that courts “normally interpret the conjunction ‘or’
as disjunctive rather than conjunctive”).
District courts “should not assume that they have satisfied Austin by reciting the
three factors and offering general, non -specific reasons for revocation.” Modtland, 695
N.W.2d at 608 . Moreover, 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
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N.W.2d at 251 (quotation omitted). And 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. Therefore, district courts must make “thorough, fact-specific records” and “seek to
convey their substantive reasons for revocation and the evidence relied upon.” Id. at 608.
Here, in addressing the third Austin factor, the district court made findings related
to the first Modtland subfactor. Specifically, the district court found that “there are new
criminal offenses and you keep coming back around that cycle.” The district court then
found that “[c]onfinement . . . is necessary” to stop appellant’s criminal activity because
the “driving while impaired is really concerning. I mean, you could kill yourself, kill
somebody else.”
Appellant argues that the district court “erred in its determination that prison was
necessary to stop further criminal activity to protect the public” because he “was not found
in violation by the court . . . for failing to remain law abiding.” But an offender need not
commit a new crime for a district court to properly determine that confinement is necessary
to protect the public. See, e.g., State v. Rottelo , 798 N.W.2d 92, 95 (Minn. App. 2011)
(addressing and rejecting the “often heard argument that [the appellant] committed no new
crimes while he was on probation” (quotation omitted)), rev. denied (Minn. July 19, 2011).
The record here reflects that appellant was charged with several offenses while he was on
probation, including driving after cancelation and unlawful possession of a firearm.
Although these charges were not resolved at th e time of the contested revocation hearing,
the allegations that appellant continues to drive after cancelation, when considered in
conjunction with his admissions to continued alcohol and methamphetamine use, support
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the district court’s concern that confinement is necessary to protect the public from further
criminal activity.
Moreover, despite being on probation for possession of methamphetamine,
appellant admittedly continue d to use methamphetamine. See State v. Osborne , 732
N.W.2d 249, 253 (Minn. 2007) (stating that in deciding whether revocation is appropriate,
the district court may consider the “original offense and the intervening conduct of the
offender”). Appellant’s methamphetamine use demonstrates that he cannot be counted on
to avoid antisocial behavior.
Appellant also argues that confinement was not necessary to protect to the public
because he had “periods of substantial compliance” and because respondent “could have
petitioned to commit [appellant] as mentally ill and chemically depend ent” as it had
previously. But appellant’s continued antisocial behavior demonstrates that his
confinement is necessary to protect the public from further criminal behavior, and there is
nothing in the record indicating that the county petitioned, or cons idered petitioning, to
have appellant committed as mentally ill and chemically dependent. As such, civil
commitment was not a confinement option that was presented to the district court.
Additionally, despite having periods of substantial compliance, th e record reflects
that a probation violation report, and several addenda to that report, were filed within a
short amount of time, which demonstrates that appellant also had periods of substantial
noncompliance. In fact, the record reflects that, within a few weeks of being sentenced for
DWI, a report was filed alleging that appellant violated the terms of his probation by failing
to remain law abiding and consuming alcohol. Appellant’s admission to consuming
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alcohol within weeks of being sentenced for DWI supports the district court’s finding that
appellant’s confinement is necessary to protect the public from further criminal activity.
Appellant further argues that the record does not support the district court’s finding
on the second Modtland subfactor. To support his position, appellant notes that the
supreme court in Austin stated that “[t]he purpose of probation is rehabilitation and
revocation should be used only as a last resort when treatment has failed.” Austin, 295
N.W.2d at 250. He argues that treatment has not failed, and revocation was not being used
as a last resort because he was never directed to complete treatment in the community.
We are not persuaded. In addressing the second Modtland subfactor, the district
court found that “t here just aren’t good treatment options here available. I think that a
period of enforced sobriety, which can most effectively be provided in the correctional
setting, in the prison setting, is necessary. I don’t think there are any other treatment
options for you here.”
The district court’s findings are supported by the record. Despite being ordered to
abstain from alcohol and controlled substances, appellant continue d to use alcohol and
methamphetamine. In fact, appellant admitted to using alcohol within two or three weeks
of being sentenced for DWI. And although there is nothing in the record indicating that
appellant was ordered to complete treatment, appellant’s probation agent testified at the
revocation hearing that appellant “hasn’t wanted to do treatment.” As such, it was within
the district court’s purview not to order that appellant complete treatment.
Moreover, the record reflects that appellant was ordered to follow the
recommendations of the ACT team. Appellant’s probation agent te stified that appellant
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had been working with his ACT team on a “daily basis.” But the agent testified that, after
appellant moved, the ACT team was “very limited” and unable to communicate with him
and visit him. The agent also testified that appellant “ refuses to take medication for his
mental health,” and that appellant’s current dwelling situation is “dismal” in light of the
lack of working water. Although appellant claimed at the revocation hearing that he was
willing to go to treatment, the district court believed that the best treatment option for
appellant was prison, and the record supports this decision. There fore, the district court
acted within its discretion by revoking appellant’s probation. See Modtland, 695 N.W.2d
at 607-08 (stating that, if the district court made findings on the Austin factors, and the
record supports those findings, the district court acted within its discretion in revoking
probation).
Affirmed.