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This opinion is nonprecedential except as provided by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
A23-1090

State of Minnesota,
Respondent,

vs.

Theodore James Kolk,
Appellant.

Filed February 12, 2024
Affirmed
Schmidt, Judge

Anoka County District Court
File No. 02-CR-20-1016

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, Andrew J. Nelson, St. Paul,
Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Schmidt, Judge; and
Reilly, 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NONPRECEDENTIAL OPINION
SCHMIDT, Judge
Appellant Theodore James Kolk argues the district court abused its discretion by
revoking his probation because the proven probation violations did not establish that the
need for confinement outweighed the policies favoring probation. Additionally, Kolk
argues that the district court abused its discretion by considering violations that were not
alleged in the report. Finally, Kolk asserts that the district court should have imposed
alternative sanctions that remained available. Because the district court did not abuse its
discretion in revoking probation, we affirm.
FACTS
In February 2020, respondent State of Minnesota charged Kolk with failing to
register as a predatory offender. Kolk entered into a plea agreement in June 2021 and the
state agreed to a downward dispositional departure of probation. The district court
accepted the plea and set the matter for sentencing.
At the sentencing hearing in April 2022, Kolk informed the district court that he had
relapsed due to his wife’s diagnosis of stage IV cancer and moved his treatment to
Rochester so he could care for her. T he district court granted Kolk a downward
dispositional departure in accordance with his plea agreement, stayed execution of the
46-month sentence, and placed him on probation for five years. The district court also
required Kolk to complete chemical-dependency treatment as a condition of his probation.
In September 2022, Kolk signed a sanctions-conference order admitting that he
violated his probation by continuing to use controlled substances. He also agreed to remain
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sober and enter treatment by September 27, 2022. A subsequent probation-violation report
alleged that Kolk tested positive for controlled substances and that he failed to enter a
chemical-dependency treatment program. At the following hearing, Kolk admitted he
failed to: abstain from using controlled substances, successfully complete treatment, enroll
in treatment by the agreed-upon date, and remain law-abiding as reflected by a June 2022
conviction for disorderly conduct. The parties presented the court with an agreement that,
in exchange for admitting the violations, the dispositional decision would be continued to
a later date to allow Kolk to enter a long-term treatment program in Rochester.
The district court found that Kolk’s admissions were sufficient, there was clear and
convincing evidence that he violated his probation, and that the violations were willful,
intentional, and without lawful excuse. The district court released Kolk to address warrants
in two other counties, reinstated his probation with all original conditions, and scheduled a
new dispositional hearing for December 2022.
Kolk did not appear at the December dispositional hearing. The record indicates
that Kolk had an active warrant and that he had been terminated from treatment. The
district court issued a warrant.
At an April 2023 hearing, the district court found Kolk was not amenable to
probation and that the need for confinement outweighed the policies favoring probation.
However, the district court continued the hearing to get more information as to Kolk’s
whereabouts at the time of the December hearing at which Kolk had failed to appear.
1

1 The parties later confirmed that Kolk was in custody in a different county on the date of
the December 2022 dispositional hearing.
4
At the continued hearing, the state requested the district court to revoke Kolk’s
probation and execute his sentence, noting Kolk had failed to complete treatment despite
having many opportunities. The court stated, “[i]f there are new probation violations being
alleged, then a new probation-violation report should be filed because I’m not going to
address anything new.” The district court continued the hearing to get more information.
Following arguments after the second continuation, the district court revoked Kolk’s
probation. In doing so, the court noted that the probation revocation was not based upon
Kolk’s continued drug use after his probation violation hearing. Instead, the district court
revoked probation given Kolk’s admissions made at the October 19th hearing and the fact
that he did not successfully complete treatment while his disposition hearing was pending.
The district court revoked Kolk’s probation and committed him to the commissioner
of corrections for 46 months, with credit for time served. This appeal follows.
DECISION
“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). Whether the district
court made the findings required for revocation of probation is a question of law, which
this court reviews de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).
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). “The 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. The decision to revoke
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requires a showing that the offender’s behavior demonstrates that he or she cannot be relied
on to avoid antisocial activity. Id. at 251. Before revoking probation, 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.” Id. at 250.
Kolk does not challenge the first two Austin factors and contends only that the
district court abused its discretion in determining that the need for confinement outweighs
the policies favoring probation. Public policies favoring probation limit revocation to
circumstances where confinement is necessary to protect the public from further criminal
activity by the offender, the offender needs correctional treatment which can most
effectively be provided if he is confined, or it would unduly depreciate the seriousness of
the violation if the court did not revoke probation. State v. Cottew, 746 N.W.2d 632, 636
(Minn. 2008) (citations omitted); see also Modtland, 695 N.W.2d at 607. Only one of these
circumstances must be satisfied to justify the revocation of probation. See Austin,
295 N.W.2d at 251.
Kolk first argues the district court’s finding that “[p]ublic protection is appropriate”
was insufficient to revoke his probation because it is not the same as a finding that
confinement is necessary to protect the public from further criminal activity by Kolk. But
Kolk admitted that he did not remain law-abiding, in violation of his probation, as reflected
by his continued controlled substance use and his June 2022 conviction for misdemeanor
disorderly conduct. These admissions support the district court’s finding that confinement
was necessary to protect the public from further criminal activity by Kolk.
6
Kolk next challenges the district court’s finding that he needs treatment in a
confined setting. The district court , however, repeatedly referenced Kolk’s unsuccessful
attempts at completing treatment outside of confinement. Those failed attempts support
the district court’s finding that treatment can most effectively be provided in confinement.
Lastly, Kolk argues that the district court abused its discretion by concluding that
reinstating Kolk’s probation would have unduly depreciated the severity of his violations.
The record demonstrates that Kolk failed to complete treatment, admitted that he continued
to use controlled substances, and admitted to committing a further criminal offense. Kolk’s
conduct provides sufficient support for the district court’s finding that continuing probation
would unduly depreciate the seriousness of his admitted violations.
Because all three of the relevant circumstances are satisfied here, and only one must
be satisfied to justify revoking probation, we see no abuse of discretion in the district
court’s decision to revoke Kolk’s probation.
Kolk further argues that the district court improperly relied on violations that were
not alleged in a violation report, admitted by Kolk, or proven by clear and convincing
evidence. But there is no indication in the record that the district court relied upon
unalleged probation violations. Instead, the district court expressly noted it was not
considering anything other than Kolk’s admitted violations and his continued failure to
complete treatment.

Finally, Kolk cites two statutes to argue the district court should have imposed
intermediate sanctions instead of revoking his probation. But those laws do not support
Kolk’s contentions. Minnesota Statutes section 609.14, subdivision 3(1), for example,
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provides the district court with a range of available remedies that may be exercised at the
court’s discretion. The statute does not require the district court to take any particular
action. Minn. Stat. § 609.14, subd. 3(1) (stating “the court may . . . order intermediate
sanctions”). Similarly, the supreme court has held that Minnesota Statutes section 609.135
(2022) also provides the district court with discretion to impose intermediate sanctions.
See Modtland, 695 N.W.2d at 608 n.3 (stating “the court may, in light of the nature of the
probation violation, alter the terms of the defendant’s probation—including imposition of
intermediate sanctions—under Minn. Stat. § 609.135 (2004)”).
While intermediate sanctions are one of several available options to address
probation violations, the legislature has left the decision as to the appropriate remedy in a
particular case to the discretion of the district court. See Minn. Stat. § 645.44, subd. 15
(2022) (“‘May’ is permissive.”). The district court had no obligation to impose
intermediate sanctions and the record reflects that the court acted well within its discretion
and the statutory framework by revoking Kolk’s probation and ordering execution of his
sentence.2
Affirmed.

2 Kolk’s reliance on the language from State v. Cottew is misplaced because the district
court did not determine “that revocation of [Kolk’s] probation and execution of the
underlying sentence [was] not appropriate, at least in part, because rehabilitation [was] still
possible.” 746 N.W.2d at 637. Although such a finding may justify the imposition of
intermediate sanctions, the district court here made no such finding.