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This opinion is nonprecedential except as provided by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
A23-0540

State of Minnesota,
Respondent,

vs.

William Joseph Garbow,
Appellant.

Filed October 30, 2023
Affirmed
Larkin, Judge

Itasca County District Court
File No. 31-CR-18-3242

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

Matti R. Adam, Itasca County Attorney, Cassidy L. Villeneuve, Assistant County
Attorney, Grand Rapids, Minnesota (for respondent)

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

Considered and decided by Larkin, Presiding Judge; Segal, Chief Judge; and
Wheelock, Judge.

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NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges the revocation of his probation, arguing that the district court
improperly revoked his probation without having found that the policies favoring probation
were outweighed by the need for confinement and that the record lacks evidence to support
such a finding. We affirm.
FACTS
In 2018, respondent State of Minnesota charged appellant William Joseph Garbow
with one count of aiding an offender. Garbow entered into a plea agreement and pleaded
guilty to the charge with the understanding that he would receive a 22 -month stayed
sentence, a dispositional departure from the presumptive 19-month executed sentence.
The probation department prepared a presentence investigation report (PSI)
recommending that the district court impose the presumptive executed sentence. The PSI
noted that Ga rbow had “an extensive criminal history, including ten prior felony level
convictions.” In April 2019, despite the PSI’s recommendation, the district court adopted
the plea agreement, imposed a 22-month stayed sentence, and placed Garbow on probation
for four years. Garbow’s terms of probation required him to contact his probation agent as
directed, remain law abiding, refrain from using alcohol or controlled substances, and
submit to random testing.
In August 2019, the probation department filed a violation report alleging that
Garbow had violated the terms of his probation by failing to contact his probation agent as
directed. The violation report noted that Garbow’s “whereabouts and activities are
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unknown.” In November 2022, Garbow was arrested and charged with several offenses,
including fifth -degree controlled -substance crime , driving while impaired, refusal to
submit to chemical testing, and fleeing a police officer in a motor vehicle. Based on the
new charges, the probation department filed an addendum to the violation report, alleging
that Garbow violated the terms of his probation by failing to remain law abiding, by using
alcohol or controlled substances, and by failing to submit to random testing.
Garbow pleaded guilty to fifth -degree controlled -substance crime and refusal to
submit to chemical testing. He also admitted that he violated the terms of his probation by
failing to maintain contact with his probation agent as directed, b y failing to remain law
abiding, by using alcohol and controlled substances, and by failing to submit to random
testing.
At the probation -disposition hearing, the state recommended that Garbow’s
sentence be executed. The state argued that the need for con finement outweighed the
policies favoring probation and that it would unduly depreciate the seriousness of
Garbow’s violations if probation w ere not revoked. The state noted that Garbow was
sentenced in 2019 and “reported to probation only two times befor e absconding from
supervision,” that Garbow was “on warrant status for over three years ,” and that his new
charges constituted “his 12th felony.” The state also highlighted the fact that Garbow had
received a downward dispositional departure in this case.
Garbow argued for continued probation. In challenging the state’s assertion that the
downward dispositional departure justified a revocation of probation, d efense counsel
explained that, due to the passage of time, several of Garbow’s criminal-history points had
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decayed, and therefore he likely would not be sentenced “at that same level today .”
Although Garbow had not maintained contact with his probation agent and was on warrant
status for several years, defense counsel argued that Garbow had not picked up new charges
until his most recent offenses, much of this time was during the COVID-19 pandemic, and
Garbow was caring for his family members.
Defense counsel informed the district court that Garbow would be working to get
his job back at a solid waste company, that he had support from his family and desired to
be in their lives, that he had successfully completed parole in the past, and that he was
willing to attend treatment . The court also heard from Garbow , who asserted that his
children provided a “good incentive” for him to complete probation.
The district court called a brief recess to consider the parties’ arguments. Upon
returning, the district court revoked Garbow’s probation and executed his sentence. The
court found that Garbo w admitted to the four alleged probation violations, that the
violations were “intentional and without good excuse,” and that not ordering the execution
of Garbow’s sentence “would unduly depreciate the seriousness of the violations.” The
district court a lso noted that Garbow’s most recent offenses constituted a “significant”
public-safety risk.
Garbow appeals.
DECISION
Garbow contends that the district court abused its discretion by revoking his
probation because the district court failed to find “that the policies favoring probation were
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outweighed by a need for confinement” and because “the record lacks sufficient evidence
to support this finding.”
“The [district] court has broad discretion in determining if there is sufficient
evidence to revoke proba tion 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
against logic and the facts in the record.” Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012)
(quotation omitted).
Before a district court revokes a d efendant’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.” Austin, 295 N.W.2d at 250. We review de novo whether a
district court made the required Austin findings. State v. Modtland, 695 N.W.2d 602, 605
(Minn. 2005).
Garbow does not dispute that the district court made sufficient findings on the first
two Austin factors. Indeed, Garbow admitted to all four alleged violations, and the district
court found the violation s to be intentional. If a district court finds an intentional or
inexcusable violation of a specific probationary condition, it must “determine wh ether the
need for confinement outweighs the policies favoring probation.” Id. at 606. 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
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revocation should be used only as a last resort when treatment has failed.” Id. at 606
(quotation omitted).
In deciding whether to revoke probation, a district court should determine whether
“confinement is necessary to protect the public from further criminal activity by the
offender,” “the offender is in need of correctional treatment which can most effectively be
provided if he is confined,” or “it would unduly depreciate the seriousness of the violation
if probation were not revoked.” Id. at 607 (quotation omitted).
Garbow asserts that the district court failed to provide a “reasoned analysis” of the
third Austin factor, and he argues that we should not “search through the record to infer the
district court’s thought process and analysis.”
The district court did not explicitly say that the principles that favor probation were
outweighed by the need for incarceration. Nonetheless, we are satisfied that the district
court reached that conclusion and that the record supports it. The district court expressly
stated that not revoking would unduly depreciate the seriousness of the violation s, which
is one of the three reasons a court may give to find that the principles that favor probation
are outweighed by the need for incarceration. A district court need only to rely on the
existence of one of those reasons to support a determination that the need for confinement
outweighs the policies favoring probation. See id. (using the disjunctive “or” in discussing
the bases for revocation).
Moreover, the record shows that the district court balanced Garbow’s interest in
freedom with the state’s interest in ensuring his rehabilitation and public safety. The court
expressly acknowledged Garbow’s desire for a “second chance” but found that Garbow
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posed a public-safety risk because he absconded for more than three years; failed to follow
the conditions of probation ; allegedly drove while impaired with a passenger in the car ;
and attempted to evade police, which resulted in a “pit maneuver” to stop his vehicle. The
district court also noted that Garbow’s underlying sentence constituted a dispositional
departure. See State v. Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015) (providing that
a district court may consider a grant of a downward dispositional departure when deciding
whether to revoke probation), aff’d, 883 N.W.2d 790 (Minn. 2016).
“[I]n 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. ” Modtland, 695 N.W.2d
at 608. In this case, the district court conveyed its substantive reasons for revocation and
the circumstances on which it relied, and in doing so adequately considered and determined
that the requirements of the third Austin factor were met.
Garbow points to several nonprecedential opinions fro m this court to support his
assertion that the district court’s findings in this case were inadequate. Although s uch
opinions are not precedential authority, they may be persuasive. Dynamic Air, Inc. v.
Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993). Nevertheless, Garbow’s cited cases do
not persuade us to reverse because in those cases—unlike here—the district court did not
provide any meaningful analysis of the third Austin factor or the Modtland subfactors. See
State v. Hill, No. A19-0313, 2019 WL 5107465, at *5 (Minn. App. Oct. 14, 2019) (“[T]he
district court made sparse findings before revoking Hill’s probation.”); State v. Sayers, No.
A15-1345, 2016 WL 1619389, at *3 (Minn. App. Apr. 25, 2016) (“The district court here
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did not explicitly conside r any of the three subfactors, did not make any findings on the
policies favoring probation, and did not make an explicit finding as to whether the need for
Sayers’s confinement outweighed the strong policies favoring probation.”); State v. Jones,
No. A14-2058, 2015 WL 4528943, at *4 (Minn. App. July 6, 2015) (“It would contradict
Modtland to allow a district court ’s general agreement with a party ’s argument to qualify
as a finding on the third Austin factor simply because the party previously discussed some
of the sub-factors.”).
In sum, the district court conveyed its substantive reasons for revocation and in
doing so adequately addressed the third Austin factor. We therefore affirm.
Affirmed.