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This opinion is nonprecedential except as provided by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
A24-0504

State of Minnesota,
Respondent,

vs.

Ella Raine Perry,
Appellant.

Filed December 2, 2024
Affirmed
Ede, Judge

Scott County District Court
File No. 70-CR-23-386

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

Ronald Hocevar, Scott County Attorney, Elisabeth M. Johnson , Assistant County
Attorney, Shakopee, Minnesota (for respondent)

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

Considered and decided by Schmidt, Presiding Judge; Ross, Judge; and Ede, Judge.
NONPRECEDENTIAL OPINION
EDE, Judge
Appellant challenges a district court’s order revoking her probation and executing a
36-month prison sentence. Because we conclude that the district court (1) did not err by
failing to make the requisite findings and (2) did not abuse its discretion by revoking
probation, we affirm.
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FACTS
Charges, Guilty Plea, and Probation Conditions
Respondent State of Minnesota charged appellant Ella Raine Perry with the
following offenses: (count 1) driving while under the influence (DWI), in violation of
Minnesota Statutes section 169A.20, subdivision 1(1) (2022); (count 2) operating a vehicle
with an alcohol concentration of 0.08 or more , in violation of Minnesota Statutes section
169A.20, subdivision 1(5) (2022); and (count 3) driving after cancellation of a driver’s
license, in violation of Minnesota Statutes section 171.24, subdivision 5 (2022).
In March 2023, Perry pleaded guilty to count 2, operating a vehicle with an alcohol
concentration of 0.08 or more. In exchange for Perry’s guilty plea, the parties agreed:
(1) that the state would dismiss counts 1 (DWI) and 3 (driving after cancellation); (2) that
the state would recommend that Perry receive a stayed 36-month prison sentence and a
term of probation for up to five years; and (3) that, as a condition of probation, Perry would
(a) serve 81 days of electronic home monitoring (EHM), (b) cooperate with a chemical-use
assessment and follow resulting recommendations, (c) abstain from the use or possession
of alcohol, (d) submit to random chemical testing, and (e) complete a victim-impact panel.
The district court imposed a sentence consistent with the parties’ agreement.
First Probation Violation
Scott County Community Corrections submitted a probation-violation report in
May 2023. Perry’s probation agent alleged that Perry had violated her conditions by failing
to complete 81 days of EHM and periodic alcohol monitoring. More specifically, the agent
stated that Perry had “failed to comply with the rules of the program after her whereabouts
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[were] unknown on May 9, 2023,” that Perry had failed to participate in alcohol monitoring
on two days in April, and that, on another occasion, Perry had blocked the testing device’s
camera. The agent noted Perry’s history of alcohol abuse, underlying issues with
problematic gambling, and that Perry’s previous DWI offense conduct had occurred
immediately after she left casinos. The agent recommended that Perry: (1) refrain from
entering gambling establishments and participating in gaming activities; and (2) complete
a gambling assessment and follow resulting recommendations.
Several months later, Perry’s agent submitted an addendum to the previous
probation-violation report. In this addendum, the agent alleged three new violations:
(1) that Perry failed to abstain from alcohol; (2) that Perry failed to maintain contact with
him; and (3) that Perry failed to provide urinalysis samples three times. The agent
recommended that Perry: (1) not enter any gaming establishments; and (2) complete a
driving course, a gambling assessment, and a diagnostic assessment, as well as follow all
recommendations that the assessments produced.
At an August 2023 hearing, Perry admitted that she had violated the terms of her
probation by failing to abstain from alcohol. In exchange for her admission, the district
court ordered that Perry : (1) serve 30 days in jail and submit to 30 days of alcohol
monitoring after her release from custody; (2) cooperate with a gambling assessment and
follow the resulting recommendations; and (3) not enter any gambling establishments. The
district court further ordered that, if Perry successfully complied with those requirements,
the court would reinstate her on probation under the previously imposed terms and
conditions.
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Second Probation Violation
In October 2023, Perry’s probation agent submitted a second probation-violation
report. The agent alleged that Perry violated her conditions by leaving the state without
permission and failing to stay away from gambling establishments. In support of the
allegations, the agent explained that Perry’s alcohol-monitoring device began “checking in
from California” several days after her release from jail. Pictures from the device showed
Perry on a casino gaming floor near slot machines. The agent recommended that Perry:
(1) serve jail time and 30 days of EHM upon release from custody; and (2) complete a
mental-health assessment and the previously ordered gambling assessment, as well as
follow all recommendations resulting therefrom.
At an October 2023 hearing, Perry admitted the alleged violations. In exchange for
her admission, the parties agreed that Perry would serve 50 days in jail, with credit for 26
days served, and early release from the remaining term to a gambling treatment program.
If Perry were discharged without completing that program , the parties agreed that she
would return to jail to serve the remaining balance of her 50-day sentence. The district
court accepted the parties’ agreement, ordered that Perry comply with the terms of it, and
reinstated her on all other prior probationary terms and conditions.
Third Probation Violation
In December 2023, Perry’s agent submitted a third probation-violation report. The
agent alleged that Perry violated the conditions of her probation by failing to complete
gambling treatment, failing to contact probation, and failing to submit to chemical testing
two times. The agent reported that, although Perry emailed him that she was kicked out of
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treatment, Perry also claimed that she would be starting a new program at an outpatient
facility. Perry did not provide the agent with information about her location. On the same
day that the agent received the email from Perry, the agent also received an email from a
counselor at the gambling treatment program. In that email, the counselor said that Perry
left treatment after staff found a male hiding in her closet. Although Perry had left with the
male before staff could ask her to leave, the program officially discharged Perry from
treatment. Despite her discharge without completing the program, Perry did not return to
jail as previously ordered by the district court. Perry left a voicemail for her agent, but she
did not otherwise communicate with probation. Ten days later, law enforcement arrested
Perry at her mother’s home.
In the third probation- violation report, the agent asserted that a failure to revoke
Perry’s probation, after her third violation in less than six months, “would unduly
depreciate the seriousness of this violation and the [district] court’s previous orders and
attempts to help [Perry].” The agent therefore recommended that the district court execute
Perry’s sentence and commit her to the custody of the commissioner of corrections for 36
months, 24 of which would be in custody, with the remaining 12 months to be served on
supervised release.
Probation Revocation Hearing
The district court held a revocation hearing, at which Perry agreed that her probation
conditions required that she complete gambling treatment, remain in contact with her
probation agent, and submit to chemical testing. Perry also admitted that she did not
complete treatment, did not contact her agent after she was released from treatment, and
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twice failed to provide urinalysis samples when required. And Perry admitted that she
violated each condition while she was on probation and that the violations were both
intentional and inexcusable.
The state requested that the district court revoke the stay of execution in accordance
with the probation agent’s recommendation. In support of this request, the state explained
that this was Perry’s third violation since March 2023, that Perry continued to consume
alcohol, that Perry had not treated her alcohol-use issues, and that Perry had not completed
the gambling treatment that she needed. The state also noted that the criminal conduct
underlying Perry’s DWI charges arose out of her issues with gambling and drinking. And
the state addressed the Austin factors and Modtland subfactors, arguing that each factor
was satisfied.1
Perry’s probation agent informed the district court that , during supervision,
gambling was a major issue for Perry and that Perry had expressed a need to consume
alcohol so that she could confidently place higher bets. The agent believed that Perry
needed both mental-health and chemical-dependency programming, which “would best be
served while she’s incarcerated” because of her recent behavior. And the agent reported
that Perry was extremely impulsive and posed a risk of flight.
Defense counsel requested that the district court order Perry back to gambling
treatment and noted that the court should use revocation only as a last resort. Counsel asked
the district court to consider that Perry’s unsuccessful discharge from treatment did not

1 See State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980); see also State v. Modtland, 695
N.W.2d 602, 607 (Minn. 2005).
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result from gambling but from her decision to allow a male in her room. According to
Perry’s counsel, rehabilitation had not failed because Perry had only one week of gambling
treatment left and had previously completed all that the program had required of her.
Despite Perry’s failure to immediately surrender after she left treatment, counsel asked the
district court to credit her efforts in emailing probation and notifying her agent that she was
trying to enroll in an outpatient treatment program.
Revocation and Appeal
In issuing its ruling, the district court noted that, although Perry’s conditions
required that she report to jail and contact probation after she left treatment, she did neither.
The district court reiterated that this was Perry’s third violation and found that Perry was
not amenable to probation. In particular, the district court pointed to Perry’s “three
violations in a matter of a few months” and reasoned that she was “not presenting as
somebody . . . [who was] at all amenable to probation.” The district court expressed hope
that, with treatment in a confined setting, Perry would be “in a much better position.” In
finding that the violations were intentional, the district court distinguished between a
person who simply relapses and Perry, who both disregarded chemical testing and left
Minnesota without permission to gamble in California. The district court elaborated:
I have considered the Austin factors in assessing this violation.
As indicated[,] I think the violations in this case are intentional
and inexcusable. I do believe that confinement is necessary to
protect the public from further criminal activity. This is your
fourth DWI. I mean clearly there [are] a lot of issues and the
message isn’t getting through. It would unduly depreciate the
seriousness of the violation if your probation was not revoked.

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Based on these determinations, the district court revoked Perry’s stay of execution
and committed her to the commissioner of corrections for 36 months.
Perry appeals.
DECISION
In seeking reversal of the district court’s decision to revoke the stay of execution,
Perry contends (1) that the court erred by failing to make the findings required under Austin
and (2) abused its discretion because the record does not support a determination that the
need for her confinement outweighed the policies favoring probation. We disagree.
If the district court finds that an individual violated the conditions of their probation
or the individual admits such a violation, the court may “continue an existing stay of
execution and order probation” or revoke probation and execute their sentence. Minn. R.
Crim. P. 27.04, subd. 3(2)(b). “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. Smith , 994 N.W.2d 317, 3 20 (Minn. App. 2023)
(quotation omitted), rev. denied (Minn. Sept. 27, 2023). “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.” State v. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019)
(quotation omitted).
Before the district court may revoke an individual’s 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 [the] need for confinement
outweighs the policies favoring probation.” Austin, 295 N.W.2d at 250. Moreover, “[t]he
9
decision to revoke 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.” Id. at 251 (quotation omitted). “[W]hether a lower
court has made the findings required under Austin presents a question of law, which is
subject to de novo review.” Modtland, 695 N.W.2d at 605.
Perry challenges the district court’s decision as to the third Austin factor—whether
the need for confinement outweighed the policies favoring probation. When analyzing that
factor, district courts must “balance the probationer’s interest in freedom and the state’s
interest in [e]nsuring [her] rehabilitation and the public safety, and base their decisions on
sound judgment and not just their will.” Id. at 606–07 (quotation omitted). In doing so,
district courts address the following three Modtland subfactors, which consider whether:
(i) confinement is necessary to protect the public from further
criminal activity by the offender; or
(ii) the offender is in need of correctional treatment which can
most effectively be provided if [s]he is confined; or
(iii) it would unduly depreciate the seriousness of the violation
if probation were not revoked.

Id. at 607 (quoting Austin, 295 N.W.2d at 251) (other citation and footnote omitted). “Only
one Modtland subfactor is necessary to support revocation.” Smith, 994 N.W.2d at 320.
I. The district court did not err by failing to make the findings required under
Austin.

Perry argues that the district court did not specifically make a finding that the
policies favoring probation were outweighed by the need for confinement. The record
defeats this claim.
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Although Perry is correct that the district court did not explicitly find that the need
for confinement outweighed the policies favoring probation, we have affirmed the
revocation of probation even when a district court did not make such an express finding.
See, e.g., State v. Scofield, No. A23-0801, 2024 WL 1039246, at *3 (Minn. App. Mar. 11,
2024) (concluding that, although the district court did not specifically state that the need
for confinement was outweighed by the policies favoring probation, the court nonetheless
“made that finding because it found that the first and third Modtland subfactors were
satisfied”).2 As in Scofield, the district court here explicitly found that the first and third
Modtland subfactors were satisfied.
Regarding the first Modtland subfactor, the district court found that confinement
was necessary to protect the public from further harm because the underlying charge was
Perry’s fourth DWI and because she was not complying with her probationary conditions.
And as to the third Modtland subfactor, the district court found that “[i]t would unduly
depreciate the seriousness of the violation if [Perry’s] probation was not revoked.” The
district court reasoned that “clearly there [were] a lot of issues and the message [was not]
getting through” to Perry. And the district court noted that Perry had violated her
probationary conditions three times “in a matter of a few months.” Because the district
court found that at least two of the Modtland subfactors were satisfied, we conclude the
district court implicitly determined that the policies favoring probation were outweighed

2 Consistent with Minnesota Rule of Civil Appellate Procedure 136.01, subdivision 1(c),
we cite nonprecedential opinions only as persuasive authority.

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by the need for confinement and did not err by failing to make the findings required under
Austin. See Scofield, 2024 WL 1039246, at *3; see also Modtland, 695 N.W.2d at 605.
II. The district court did not abuse its discretion in deciding that sufficient
evidence supported its determination that the need for confinement
outweighed the policies favoring probation.

Perry nonetheless maintains that the district court’s findings on the three Modtland
subfactors are not supported by the record. We are unconvinced.
A. First Modtland Subfactor
Perry first asserts that the district court’s finding that confinement was necessary to
protect the public is not supported by the record because “there was no indication that [she]
was engaging or about to engage in criminal activity” and the actions that led to her
violations were not criminal, nor did they pose a risk to public safety. In addressing the
first subfactor, the district court emphasized that the underlying crime was “a very
dangerous offense” and that it was Perry’s fourth DWI. The district court also observed
that Perry had several probation violations, that Perry left Minnesota without permission
to gamble in California, and that Perry’s violations were intentional.
The record establishes that Perry was convicted of DWI offenses in 2018 and
2021—before she pleaded guilty to the instant DWI charge—and that all of Perry’s DWI
convictions occurred after leaving casinos. Perry admitted that she had visited a gambling
establishment in California, and she acknowledged that she relied on alcohol consumption
for confidence in placing higher bets. The evidence also reflects that Perry had violated
probation by providing a positive urinalysis sample. We therefore conclude that t he
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evidence supports the district court’s finding that confinement was necessary to protect the
public.
B. Second Modtland Subfactor
Contending that appropriate treatment was available in the community, Perry next
argues that the record does not support a finding that she needs correctional treatment that
can most effectively be provided if she is confined. We acknowledge that the district court
did not make such an express finding. But the district court did specifically find that Perry
was not amenable to probation and that she “clearly . . . need[ed] some significant mental
health treatment.” And the district court expressed its hope “that [,] with treatment in
confinement[,] . . . [she would] come out of this at the end of the day in a much better
position[,] . . . [h]aving had the opportunity to have essentially forced treatment and some
forced mental health therapy in a more stable setting.” See Austin, 295 N.W.2d at 251
(noting that it is not unreasonable to conclude that treatment had failed where an offender
failed to participate in treatment opportunities or “to show a commitment to
rehabilitation”); see also State v. Jennings, No. A12-1637, 2013 WL 869947, at *3 (Minn.
App. Mar. 11, 2013) (affirming the district court’s revocation of probation because the
district court’s findings that appellant was not amenable to probation and needed
correctional treatment were supported by the record).
The district court also found that, after Perry left treatment, she failed to report to
jail as required. Moreover, the terms of Perry’s probation included that she remain in
contact with the agent and submit to chemical testing; she did neither. The district court
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noted that this was Perry’s third violation in a few months, that the violations were
intentional, and that Perry needed treatment.
The record reasonably supports these findings. It reflects that Perry failed to return
to jail after leaving treatment, despite the district court’s order that she do so in that
circumstance. The probation-violation report notes that Perry did not notify her agent of
her whereabouts after she left treatment and that she did not cooperate with chemical
testing. The evidence also establishes that this was Perry’s third probation violation and
that her conduct had not improved after two prior violations and reinstatements. Based on
our careful review of the record, we conclude that the district court’s implicit findings on
the second Modtland subfactor are supported by the facts that were before the court.
C. Third Modtland Subfactor
Lastly, Perry contends that the district court abused its discretion by finding that it
would unduly depreciate the seriousness of the violation if probation were not revoked.
Perry posits that the district court “could have addressed the seriousness of the violation in
the community by imposing other sanctions such as local jail time, or a more rigorous
check-in or communication system with the probation agent, or house arrest” because she
“demonstrated and expressed willingness to enter chemical dependency treatment and
abide by the rules of probation.”
At the probation- revocation hearing, the district court reminded Perry that it had
previously expressed its concern that she was not taking probation seriously. The district
court also noted that Perry had left treatment without reporting to jail as ordered and that
she did not apprise probation of her whereabouts. In addition, the district court observed
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that this was Perry’s third probation violation and that the violations before the court were
intentional. After distinguishing between an individual who merely relapses and Perry’s
more egregious conduct of immediately absconding to California to gamble following a
prior probation violation—in further contravention of the district court’s orders—the court
found that “clearly there [were] a lot of issues and the message [was not] getting through.”
Thus, the district court determined that “it would unduly depreciate the seriousness of the
violation if [Perry’s] probation was not revoked.” For the same reasons as set forth above,
we conclude that the record reasonably supports these findings.
Perry cites three nonprecedential opinions in support of her argu ment that “the
district court’s assertion that it had ‘considered the [Austin] factors in assessing this
violation’ is not adequate”: State v. Jensrud, No. A23-1566, 2024 WL 2888871 (Minn.
App. June 10, 2024); State v. Rogers, No. A22-0649, 2023 WL 125845 (Minn. App. Jan. 9,
2023); and State v. Baerg, No. A21-1517, 2022 WL 3581314 (Minn. App. Aug. 22, 2022).
But none of these decisions persuade us to reverse. In each case, the district court had
merely recited the Austin factors and the Modtland subfactors, without analyzing them. See
Jensrud, 2024 WL 2888871, at *3; Rogers, 2023 WL 125845, at *2; Baerg, 2022 WL
3581314, at *6. By contrast, the district court here did far more than just recite the factors
and subfactors—it discussed the evidence that it relied on to reach its determination and
provided case -specific reasons why the need for Perry’s confinement outweighed the
policies that favored continuing her probation.
In sum, “[t]he ultimate decision whether to order revocation and imprisonment lies
solely within the district court’s discretion.” State v. Fortner, 989 N.W.2d 368, 377 (Minn.
15
App. 2023). The record establishes that the district court’s decision to revoke probation
was not a “reflexive reaction to an accumulation of technical violations.” Austin, 295
N.W.2d at 251 (quotation omitted). Instead, the district court considered Perry’s lack of
cooperation with probation, the seriousness of the underlying conviction, and Perry’s need
for treatment. And the district court’s factual findings were reasonably supported by the
record. We therefore conclude that the district court did not err by failing to make the
requisite Austin findings and did not abuse its discretion by revoking Perry’s probation and
executing her 36-month sentence.
Affirmed.