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This opinion is nonprecedential except as provided by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
A23-0855

State of Minnesota,
Respondent,

vs.

Orlando Jose Abrego,
Appellant.

Filed February 5, 2024
Affirmed
Larkin, Judge

Anoka County District Court
File No. 02-CR-21-6747

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

Brad Johnson, Anoka County Attorney, Kelsey R. Kelley, Assistant County Attorney,
Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I . Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Larkin, Judge; and Ede, Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges the revocation of his probation, arguing that the district court
failed to adequately consider the necessary factors, applied an incorrect standard , and
inappropriately revoked his probation based solely on alcohol consumption. We affirm.
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FACTS
On November 15, 2021, l aw enforcement responded to a call alleging that the
caller’s father, appellant Orlando Jose Abrego, had come home drunk and had a firearm in
his possession. The caller reported that Abrego was prohibited from possessing firearms.1
Law enforcement obtained and executed a search warrant at Abrego’s home and found a
handgun underneath a mattress on the side of a bed where Abrego was sleeping.
Respondent State of Minnesota charge d Abrego with possession of firearm or
ammunition by an ineligible person. Abrego pleaded guilty to the offense.
In March 2022, Abrego participated in a pre-sentence-investigation (PSI). The
resulting PSI indicated that the presumptive sentence for the offense was a 60-month prison
commitment. The PSI also reported that Abrego had four prior felony convictions, dating
back to 2014 , including felony driving while impaired ( DWI), felony domestic assault,
fourth-degree assault, and felony DWI test refusal. Abrego admitted that he had been
“drinking to intoxication several times a week” following a “traumatic event” in which his
daughter’s best friend was shot near his home while celebrating his daughter’s birthday.
Abrego tried to save the child, but she ultimately died. Abrego reported that he thought he
needed a gun to protect his family from violence.
The PSI noted that at the time of the offense, Abrego had been released from prison
and was under supervision for his most recent felony conviction . The PSI stated that
Abrego “has demonstrated an unwillingness to addres s his alcohol use in the community,

1 Abrego is prohibited from possessing firearms because he has a prior felony conviction
for domestic assault.
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despite being afforded several opportunities to do so ” and his “continued non-compliance
on community supervision demonstrates an ongoing risk to public safety.” The PSI further
stated that Abrego therefore did “not appear to be a viable candidate for probation
supervision.”
Abrego moved the district court for a downward dispositional sentencing departure.
He argued that substantial and compelling circumstances warranted a departure because he
was “particularly amenable to probation. ” He acknowledged having a “long history of
substance abuse and mental health disorders,” “a great amount of trauma in his life,” and
that he “uses alcohol and other chemicals as self -medication for the pain he continues to
experience.” Abrego argued that he would best be served by intensive
chemical-dependency treatment through community corrections. Abrego asked for “one
last opportunity to pursue treatment outside of confinement.”
Abrego was not sentenced until September 21, 2022. Abrego completed an updated
PSI prior to sentencing . The updated PSI noted that Abrego had successfully completed
intensive outpatient chemical-dependency treatment in May 2022 and that he was attending
weekly outpatient programming. Thus, the district court granted Abrego’s request for a
downward dispositional departure and placed him on probation for five years. Abrego’s
probationary conditions prohibited him from using alcohol ; from engaging in assaultive,
violent, disorderly, or threatening behavior; and from violating any state or federal criminal
laws.
On February 22, 2023, the district court issued a warrant for Abrego’s arrest based
on an allegation that he violat ed all three of those conditions. Specifically, a
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probation-violation report indicated that Abrego was arrested for fourth -degree assault of
a police officer and g ross-misdemeanor obstruction of legal process when officers
responded to a call to Abrego’s home from his minor daughter. One of the responding
officers reported “smell[ing] a strong odor of alcohol from [Abrego].”
At his probation-revocation hearing, Abrego admitted that he engaged in disorderly
conduct when the police arrived at his home, that he was arrested, and that he had used
alcohol. A representative from community corrections recommended that the district court
revoke Abrego’s probation and send him to prison, noting a “pattern [of] multiple [police]
calls to [Abrego’s] house” and that he had been “found guilty of obstruction in the past in
this county.” The community corrections representative argued: “We know that w hen
[Abrego] drinks alcohol, he makes terrible choices and he continues to put the public safety
at risk.”
The state also recommended a prison commitment, arguing:
The concern . . . isn’t that the defendant just continues
to consume alcohol. It’s the fa ct that when this particular
defendant consumes alcohol, it raises concern in the
community. That results in calls to law enforcement, has
resulted in a firearm that he wasn’t to possess, and family
members who were concerned enough to call. . . [T]his is a
person who when he uses alcohol despite the multiple
opportunities to get help for that and orders not to consume
alcohol presents a risk to others. That’s ultimately the concern
that the [s]tate sees here that justifies the commitment rather
than ongoing probation. It is these types of violations with this
offender that present risk to others.

The district court addressed Abrego, and noted that at his sentencing hearing ,
Abrego told the district court that he was “turning [his] life around.” The district court
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observed that Abrego made the same assertion during the probation-violation proceeding.
The district court revoked Abrego’s probation, explaining:
[T]his[c]ourt finds by clear and convincing evidence that you
violated the conditions of probation. In addition, I find that the
need for confinement outweighs the policy favoring probation.
Confinement is appropriate and necessary for public
protection. The need to revoke the probation is in order to
show the severity, and the seriousness of the violation
depreciates if not confined. Therefore, it’s the sentence of this
[c]ourt that, as punishment, you shall be committed to the
Commissioner of Corrections . . . .

Abrego appeals.
DECISION
I.

“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 w hen 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 defendant ’s probation, it must do three things:
(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. “[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
6
and the evidence relied upon.” State v. Modtland, 695 N.W.2d 602, 608 (Minn. 2005). We
review de novo whether a district court made the required Austin findings. Id. at 605.
Abrego’s challenge is limited to the third Austin factor: “ whether the need for
confinement outweighs the policies favoring probation.” Id. at 606 . In making that
determination, 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). Additionally, a district court should consider
whether “confinement is necessary to protect the public from further criminal activity by
the offender,” whether “the offender is in need of correctional treatment which can most
effectively be provided if he is confined,” or whether “it would unduly depreciate the
seriousness of the violation if probation were not revoked.” Id. at 607 (quotation omitted).
Abrego contends that the district court erred in revoking his probation because it
“merely recite[d] the third Austin factor without articulating adequate justification ” and
because it presented its findings “in summary fashion, without reference to any fa ctual
findings.”
The district court’s finding that “ [c]onfinement is appropriate and necessary for
public protection” indicates that the district court was persuaded by the recommendations
and remarks of the community -corrections representative and the prosecutor. Those
remarks provided adequate justification for the district court’s third Austin finding. For
example, the community-corrections representative informed the district court that “[w]e
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know that when [Abrego] drinks alcohol, he makes terrible choices and he continues to put
the public safety at risk.” And the prosecutor argued that “when this particular defendant
consumes alcohol, it raises concern in the community [,] . . . result[s] in calls to law
enforcement, has resulted in a firearm that he wasn’t [supposed] to possess, and [results in]
family members who were concerned enough to call.” The prosecutor stated that Abrego’s
continued use of alcohol—despite his participation in treatment and orders to abstain from
drinking by the district court—presents a risk to others.
In addition, the district court noted that Abrego’s underlying sentence constituted a
dispositional departure. A district court may consider a grant of a downward dispositional
departure when deciding whether to revoke probation . See State v. Fleming, 869 N.W.2d
319, 331 ( Minn. App. 2015), aff’d, 883 N.W.2d 790 (Minn. 2016). And “[l]ess judicial
tolerance is urged for offenders [violating conditions of a stayed sentence ] who were
convicted of a more severe offense or who had a longer criminal history.” Minn. Sent ’g
Guidelines 3.B (2022).
In sum, when considered in the context of the remarks in support of revocation, the
district court adequately conveyed its substantive reasons for revocation and the
circumstances on which it relied , and it thereby satisfied the requirement s of Austin. See
Modtland, 695 N.W.2d at 608 (“[I]n making the three Austin findings, . . . courts must seek
to convey their substantive reasons for revocation and the evidence relied upon.”).
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II.
Abrego also contends that the district court erred “when it expressly stated that
[Abrego] bore the burden of pro viding substantial and compelling reasons to stay on
probation.” Abrego refers to the following remarks by the district court as support:
I mean, that ’s the problem I have is a departure is just
that: A reason to give you an opportunity to change the ways
you had to get to that point. I remember you talking about, you
know, what brought you initially – the issue with your
daughter and the birthday party and all of that and, you know,
the area that you were living in and all the problems that you
had in that area – and yet, you know, if I ’m counting it
correctly, you’ve had at least two dirty UAs, and the call that
came in on this that brought the law enforcement there was,
you were drinking and you had a firearm around you. I don’t
know if it’s right or wrong, but someone in your family called
the police and said, you know, I got a problem here.
And I don ’t know what changes. And I have to have
substantial and compelling reasons not to put you in prison.
And I’ll tell you, you know, unfortunately, losing your job is
not one of them. I have to protect public safety. I’ve got all
these things I’ve got to look at, and that ’s why when I depart
with someone, you know, and I got the [s]tate saying I
shouldn’t, I make it abundantly clear that, don ’t come back in
front of me because it makes it a lot harder for an argument for
me to keep you out of prison.

(Emphasis added.)
Contrary to Abrego’s assertion in his brief to this court, t hose remarks do not
indicate that the district court shifted the burden to Abrego to “essentially demonstrate that
he would still be eligible for a departure in order to avoid revocation .” The district court
did not say that Abrego had to prove anything, much less prove substantial and compelling
circumstances justifying continued probation. To the extent that the district court erred by
referring to “substantial and compelling reasons” to continue probation, the error is
9
harmless and must be ignored because the record shows that the district court ultimately
applied the correct standard: “this [c]ourt finds by clear and convincing evidence that you
violated the conditions of probation” and “the need for confinement outweighs the policy
favoring probation.” See Minn. R. Crim. P. 31.01 (“Any error that does not affect
substantial rights must be disregarded.”); State v. Griller , 583 N.W.2d 736, 741 (Minn.
1998) ( stating that an error affects substantial rights if “the error was prejudicial and
affected the outcome of the case”).
III.
Finally, Abrego contends that it was “inappropriate” for the district court to revoke
probation because of recent legislative changes limiting “the circumstances where the court
is authorized to revoke probation in response to a violation.” Specifically, Abrego argues
that a recent statutory change “expressly prohibit[s] revocation in response to a first time
use of alcohol on probation.” See 2023 Minn. Laws ch. 52, art. 17 § 33, at 894 (amending
Minn. Stat. § 609.14 (2022)). He concedes, however, that “neither retroactivity nor
application of the amelioration doctrine compel this [c]ourt to enforce this new legislation
in this appeal.” We therefore do not apply the new law.
Abrego also argues that the district court erred in exercising its discretion because
it “did not make any findings weighing the rehabilitative options against its purely punitive
revocation.” Abrego asserts that the district court “repeatedly and exclusively identified
[Abrego’s] drinking violation as the basis for revocation.”
But in revoking Abrego’s probation, the district court relied both on his alcohol
consumption and on his ensuing disorderly conduct and arrest when the police were called
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to his home in response to a call from his daughter. Abrego’s attempt to portray his
probation revocation as the result of a reflexive reaction to a technical violation—that is, a
single use of alcohol—ignores a record showing that Abrego has a history of drinking and
then engaging in criminal behavior that endangers others. In fact, Abrego’s attorney argued
that “if we get alcohol taken care of here, he’s not going to be putting himself in these
situations anymore and putting any problems with public safety risk as a concern here.”
In sum, it is clear to us that Abrego was not sent to prison for a single, technical
alcohol-use violation. He was sent to prison because his drinking had repeatedly led t o
criminal conduct that endanger ed others and he continue d to drink under similar
circumstances, despite the opportunity for community -based treatmen t. These
circumstances do not show a commitment to rehabilitation in the community. See Austin,
295 N.W.2d at 251 (“[Austin] 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. ”). The district court did not abuse its discretion in
revoking Abrego’s probation.
Affirmed.