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This opinion is nonprecedential except as provided by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
A24-0169

State of Minnesota,
Respondent,

vs.

Joshua Russell Lutz,
Appellant.

Filed August 12, 2024
Reversed and remanded
Harris, Judge

Sherburne County District Court
File No. 71-CR-18-1513

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

Kathleen A. Heaney, Sherburne County Attorney, George R. Kennedy, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Harris, Presiding Judge; Worke, Judge; and Schmidt,
Judge.
NONPRECEDENTIAL OPINION
HARRIS, Judge
Appellant challenges the revocation of his probation, arguing that the district court
failed to make sufficient findings to conclude that the need for confinement outweighs the
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policies favoring probation. Because the district court did not make adequate findings
about the third Austin factor and the Modtland subfactors, we reverse and remand.
FACTS
In October 2018, respondent State of Minnesota charged appellant Joshua Russell
Lutz with first-degree sale of cocaine. Lutz pleaded guilty to the charge, and the district
court granted him a downward dispositional departure to probation, imposed a 64-month
sentence, and stayed execution of that sentence for 20 years. The conditions of probation,
as relevant here, included remaining law-abiding, refraining from using or possessing non-
prescribed mood-altering substances (including alcohol), and submitting to random drug
screenings.
In November 2020, Sherburne County Community Corrections submitted a
probation-violation report alleging that Lutz violated the terms of his probation by failing
to remain law-abiding, failing to enroll in treatment, failing to serve jail time, and failing
to pay restitution. Three months later, Sherburne County submitted an addendum, alleging
that Lutz violated his probation by testing positive for mood-altering substances. Lutz
admitted to these violations at a contested-revocation hearing. The district court reinstated
Lutz’s probation with the same conditions and additional jail time as an intermediate
sanction.
In October 2023, Anoka County Corrections filed a probation-violation report
alleging that Lutz failed to remain law-abiding, failed to provide urinalysis (UA), and failed
to abstain from using mood-altering substances. The report indicated that he had been
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charged with felony criminal vehicular operation, gross-misdemeanor test refusal, and
gross-misdemeanor driving while impaired (DWI).
One week later, just before his probation-violation hearing, Lutz tested positive for
methamphetamine and tetrahydrocannabinol (THC). The state asked the district court to
execute his sentence given the multiple probation violations since 2019. Based on Lutz’s
continued drug use, failure to comply with drug screening, and his pending DWI, the court
concluded that Lutz’s actions raised public-safety concerns and therefore ordered him to
be held until his contested-revocation hearing.
At his contested-revocation hearing, Lutz admitted to violating the terms of his
probation based on failure to provide UAs and failure to refrain from using or possessing
nonprescribed mood-altering substances. More specifically, Lutz admitted that he failed
to provide UAs on numerous occasions, and on the days he did provide UAs, he tested
positive for methamphetamine. At the contested-revocation hearing, Lutz, through his trial
counsel, informed the district court that he is not admitting to violating probation by failing
to remain law-abiding. The state agreed, stating that it was not seeking admission on the
pending charges. The district court told Lutz that it would not ask him about his pending
criminal charge, and it would also not rule on it. The state asked the district court to execute
the stayed sentence.
Based on his admissions, the district court found Lutz’s violations intentional and
inexcusable, and that the need for confinement outweighed the policies favoring probation
because it would unduly depreciate the seriousness of the violations if his probation were
not revoked. The district court added that Lutz has continued to harm himself by using
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substances and disobeying the court’s orders, and that his criminal operation of a motor
vehicle implicated public safety. For these reasons, the court determined that confinement
was necessary to protect the public from further criminal activity and therefore executed
his 64-month sentence. This appeal follows.
DECISION
A district court may revoke an offender’s probation if it finds that (1) the defendant
violated a condition of probation; (2) “the violation was intentional or inexcusable” ; and
(3) “the need for confinement outweighs the policies favoring probation.” State v. Austin,
295 N.W.2d 246, 250 (Minn. 1980). When applying these Austin factors, 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). District courts should also “not assume
that they have satisfied Austin by reciting the three factors and offering general, non-
specific reasons for revocation.” Id. Moreover, revoking probation “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 N.W.2d at 251 (quotations omitted).
“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.” Id. at 249-50. 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). Whether the district court
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made the requisite Austin findings is a question of law, which appellate courts review de
novo. Modtland, 695 N.W.2d at 605.
Lutz argues that the district court abused its discretion when it found that the need
for his confinement outweighed the policies favoring probation. 1 He specifically argues
that the district court failed to provide the specific, substantive reasons, and the evidence it
relied on in revoking his probation. The third Austin factor requires the district court to
“balance the probationer’s interest in freedom and the state’s interest in insuring his
rehabilitation and the public safety.” Id. at 607 (quotation omitted). This inquiry requires
a district court to consider three Modtland subfactors: (1) whether “confinement is
necessary to protect the public from further criminal activity”; (2) whether “the offender is
in need of correctional treatment which can most effectively be provided if he is confined”;
or (3) whether “it would unduly depreciate the seriousness of the violation if probation
were not revoked.” Id. (quotation omitted). “Only one Modtland subfactor is necessary to
support revocation.” State v. Smith, 994 N.W.2d 317, 320 (Minn. App. 2023), rev. denied
(Minn. Sept. 27, 2023). Notably, district courts must “create thorough, fact-specific
records setting forth their reasons for revoking probation.” Modtland, 695 N.W.2d at 608.
In determining that the third Austin factor was met, the district court stated:
Based on the admissions here today, I do find that
you’re in violation of the terms of your probation, that those
violations are intentional and inexcusable, and as a result of
those violations I am revoking your term of probation. I do

1 Lutz also argues that, even if the district court’s findings were adequate, the district court
abused its discretion by revoking probation rather than imposing an intermediate sanction.
We decline to address that argument because we resolve this case based on the inadequate
Austin findings.
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find that there is —that the need for confinement in this case
outweighs any policies favoring probation because I find that
it would unduly depreciate the seriousness of the violations if
your probation was not revoked.

This is a case not only where you have been causing harm to
yourself by using and continuing to use as well as just
completely disobeying the Court’s orders, but there are also
new allegations of criminal conduct. And, again, not just
conduct involving yourself and your use, but new allegations
of Criminal Vehicular Operation of a Motor Vehicle which
directly puts the public safety at risk.

I do find that confinement is necessary to protect the public
from further criminal activity of Mr. Lutz, and for those
reasons I am ordering that you be committed to the
Commissioner of Corrections for a period of 64 months.

Before revoking probation, district courts must “create thorough, fact-specific
records setting forth their reasons for revoking probation.” Modtland, 695 N.W.2d at 608.
After all, it is not this court’s role “to scour the record to determine if sufficient evidence
exists to support the district court’s revocation.” Id. While the district court provided
general reasons for revoking probation and cites the third Austin factor and the third
Modtland subfactor as its support for the third Austin factor, the district court’s analysis of
the third Austin factor demonstrates it relied on allegations that Lutz engaged in criminal
conduct. But Lutz did not admit to those allegations of criminal activity and those
allegations therefore cannot form the basis of a probation revocation. The state and Lutz
agreed that the district court would not consider those allegations and that, should Lutz be
convicted, the state could seek sanctions in the future. As a result, we conclude that the
district court revoked Lutz probation based on allegations of criminal activity that he did
not admit to at the contested revocation hearing and did not make adequate findings on the
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third Austin factor. We therefore reverse the district court’s probation-revocation decision
and remand for the district court to make further findings consistent with our opinion.
In sum, because the district court based its decision to revoke Lutz probation on
allegations that where not admitted or proved at the contested revocation hearing and did
not make adequate findings on the third Austin factor, we reverse the district court’s
probation-revocation decision and remand for the district court to make sufficient findings
in accordance with the requirements of Austin and Modtland.
Reversed and remanded.