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This opinion is nonprecedential except as provided by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
A24-1004

State of Minnesota,
Respondent,

vs.

Churojut Peter Thuok,
Appellant.

Filed January 13, 2025
Affirmed
Schmidt, Judge

Stearns County District Court
File No. 73-CR-21-5125

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

Janelle P. Kendall, Stearns County Attorney, River D. Thelen, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

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

Considered and decided by Frisch, Presiding Judge; Smith, Tracy M., Judge; and
Schmidt, Judge.
NONPRECEDENTIAL OPINION
SCHMIDT, Judge
In this appeal from an order revoking probation and executing a 41-month sentence,
appellant Churojut Peter Thuok argues that the district court abused its discretion because
the evidence did not support a finding that the need for confinement outweighed the
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policies favoring probation and that the court should have , instead, imposed an
intermediate sanction. Because the district court did not abuse its discretion, we affirm.
FACTS
In 2021, respondent State of Minnesota charged Thuok with first-degree burglary.
Thuok pleaded guilty, which included as part of an agreement a dispositional departure
sentence based on his amenability to probati on. The district court sentenced Thuok to
41 months in prison but stayed execution of his sentence for five years during which time
Thuok would be on probation. As a condition of his probation, the district court required
Thuok to abstain from mood-altering chemicals, remain law abiding, contact his probation
officer as directed, complete a substance- use-disorder assessment, and comply with
random testing. The court also required Thuok to complete the Stearns County Enhanced
Supervision Program, which imposed a curfew and required Thuok “to be employed or
participate in positive weekly activity for a minimum of 24 [hours per week.]”
Thirteen days after sentencing, Thuok received his first probation-violation report
for having a positive drug test and for failing to comply with the Enhanced Supervision
Program’s contact requirements. The district court held a hearing, Thuok admitted to the
violations, and the court ordered him to spend 15 days in jail as an intermediate sanction.
Three months later, Thuok received his second probation-violation report for testing
positive for alcohol on two different occassions and for failing to timely complete, or to
verify that he completed, his substance-use-disorder assessment. The district court held
another hearing, Thuok admitted to the violations, and the court ordered him to spend
30 days in jail as an intermediate sanction.
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Three months later, Thuok received his third probation-violation report for testing
positive for alcohol. At another hearing, Thuok again admitted to the violation and the
court ordered him to spend another 30 days in jail as an intermediate sanction.
Two months later, Thuok received his fourth probation-violation report for testing
positive for alcohol, failing to report for random testing, failing to call the testing hotline
seven times, violating curfew, failing to be employed or have positive activities at least
24 hours per week, and failing to remain law abiding. Thuok admitted to the violations.
The district court held a hearing at which the state requested that the court revoke Thuok’s
probation. Defense counsel requested that the court impose an intermediate sanction of
120 days in jail followed by high-intensity outpatient treatment. The district court revoked
Thuok’s probation and executed his 41-month sentence, with credit for time served during
his intermediate sanctions.
Thuok appeals.
DECISION
Thuok argues that the district court abused its discretion when it revoked his
probation because the need for confinement did not outweigh policies favoring probation
and an intermediate sanction should have been imposed instead of revocation. The district
court has broad discretion in its decision to revoke probation, which will only be reversed
“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 to revoke probation
is a question of law, which we review de novo. State v. Modtland, 695 N.W.2d 602, 605
(Minn. 2005).
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If grounds for revocation exist, a district court may execute a previously imposed
but stayed sentence. Minn. Stat. § 609.14, subd. 3(2) (2022). Before probation is revoked,
a 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.” Austin, 295 N.W.2d at 250.
When looking at the third Austin factor, the district court should consider whether at least
one of the following subfactors is present:
(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 he is confined; or (iii) it would unduly depreciate
the seriousness of the violation if probation were not revoked.

Id. at 251. Revocation “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. (quotations omitted).
The parties on appeal do not dispute that the district court properly designated the
specific conditions that were violated or that the court properly found that Thuok’s
violations were intentional or inexcusable. Thus, the first two Austin factors are satisfied.
Id. at 250. Thuok only challenges the district court’s decision on the third Austin factor.
In ruling that the need for confinement outweighed the policies favoring probation, the
district court made findings on two subfactors: (1) that correctional treatment can best be
offered if Thuok was confined to the Minnesota Department of Corrections, and (2) the
seriousness of Thuok’s violations would be unduly depreciate d if probation were not
revoked. Thuok challenges each of these findings on appeal.
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A. The district court did not abuse its discretion in determining Thuok
needed correctional treatment that could most effectively be provided if
confined.

Thuok argues that treatment in prison was not the only option available. But the
district court found that Thuok failed to receive treatment in the community. T he court’s
finding was not clearly erroneous because the record established that Thuok’s violations
involved a failure to abstain from mood-altering substances, Thuok’s missed tests, and
Thuok’s failure to complete his substance abuse disorder assessment until he was confined.
Thuok argues that the district court must find that treatment in prison is the only, or
the best, option available. But Thuok’s cited case, State v. Fleming, is distinguishable.
869 N.W.2d 319 (Minn. App. 2015), aff’d, 883 N.W.2d 790 (Minn. 2016). In Fleming,
this court affirmed a decision to revoke probation after the district court found that a
defendant was not amenable to probation because he nearly exhausted all “relevant
programming opportunities[.]” Id. at 325. Although this was a relevant consideration in
that case, Fleming did not announce a rule of law that exhaustion of community
programming is required for all cases. Id. at 331-32. In contrast, the supreme court has
affirmed a decision to revoke probation where, like here, the defendant had “been offered
treatment but has failed to take advantage of the opportunity or to show a commitment to
rehabilitation[.]” Austin, 295 N.W.2d at 251.
The district court had also tried intermediate sanctions for Thuok’s three prior
violations, but they did not change his behavior. Instead, Thuok continued to violate the
conditions of his probation. The district court did not abuse its discretion in determining
that correctional treatment would best be provided to Thuok while confined.
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B. The district court did not abuse its discretion in determining the
seriousness of the violation would be unduly depreciated if probation
was not revoked.

The district court determined that it would unduly depreciate the seriousness of
Thuok’s violation if probation was not revoked. Thuok’s original offense—first-degree
burglary—is a serious crime and “[l]ess judicial tolerance is urged for offenders who were
convicted of a more severe offense[.]” Minn. Sent’g Guidelines 3.B (2020). Nonetheless,
the district court dispostionally departed downward by imposing a probationary sentence.
Whether the original sentence was a downward dispositional departure is “a proper
consideration” for a probation revocation. Fleming, 869 N.W.2d at 331.
The district court gave Thuok multiple opportunities to remedy his behavior by
imposing intermediate sanctions, but he continued to violate the conditions of his
probation. Based on the severity of the initial offense and the numerous violations within
a year of his probation starting, the district court did not abuse its discretion in determining
that it would unduly depreciate the seriousness of Thuok’s violations if the court did not
revoke probation.
C. The district court did not abuse its discretion by not imposing another
intermediate sanction.

Thuok contends the district court should have imposed an intermediate sanction
rather than revoke his probation. Although the district court believed Thuok was sincere
at his probation revocation hearing, it noted that this was the fourth time that Thuok asked
for another chance. The court rejected imposing another intermediate sanction because the
prior sanctions had no impact on Thuok’s compliance.
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Thuok argues that the Minnesota Supreme Court has held that intermediate
sanctions are appropriate after a violation, “at least in part, because rehabilitation is still
possible.” State v. Cottew, 746 N.W.2d 632, 637 (Minn. 2008). But the supreme court has
not held that rehabilitation being possible is the only consideration. Id. Here, the district
court appropriately made findings on why it revoked Thuok’s probation and executed the
previously imposed sentence, and the court clearly explained why imposing an
intermediate sanction was not appropriate. The district court did not abuse its discretion
by not imposing another intermediate sanctions and executing the previously stayed
sentence.
Affirmed.