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This opinion is nonprecedential except as provided by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
A24-1693

State of Minnesota,
Respondent,

vs.

Dustin Eugene Clapp,
Appellant.

Filed July 14, 2025
Affirmed
Wheelock, Judge

Lyon County District Court
File No. 42-CR-23-841

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

Abby Wikelius, Lyon County Attorney, Julianna F. Passe, Assistant County Attorney,
Marshall, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, John Patrick Monnens, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Connolly, Judge; and Wheelock,
Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
Appellant challenges the revocation of his probation, arguing that the district court
abused its discretion by failing to make adequate findings pursuant to the third Austin
factor. We affirm.
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FACTS
The following facts summarize the record, including the sentencing and
probation-revocation proceedings. During a routine traffic stop in August 2023, law
enforcement found appellant Dustin Eugene Clapp driving with a cancelled license and in
possession of over 50 grams of methamphetamine. Respondent State of Minnesota
ultimately charged Clapp with first-degree possession of 50 or more grams of
methamphetamine in violation of Minn. Stat. § 152.021, subd. 2(a)(1) (Supp. 2023),
third-degree sale of 17 grams or more of methamphetamine in violation of Minn. Stat.
§ 152.023, subd. 1(1) ( Supp. 2023), and driving after the cancellation of his license in
violation of Minn. Stat. § 171.24, subd. 5 (2022). Clapp pleaded guilty to third-degree sale
of methamphetamine and driving after cancellation of his license in an Alford plea, and the
state dismissed the first-degree possession charge.1
The district court imposed a 33-month sentence but stayed the execution of the
sentence and directed Clapp to “complete and pay for a substance use disorder assessment
or a comprehensive assessment, whichever is directed by probation, . . . and follow all
clinical recommendations of that assessment.” The district court further ordered that Clapp
submit to random alcohol or drug testing; not use or possess alcohol or drugs, except as

1 In State v. Goulette, 258 N.W.2d 758, 760 (Minn. 1977), the State of Minnesota formally
adopted the use of pleas entered in accordance with North Carolina v. Alford, 400 U.S. 25
(1970). See Doe 136 v. Liebsch, 872 N.W.2d 875, 879 (Minn. 2015) (discussing the formal
adoption of Alford pleas). In Alford, the United States Supreme Court held that it was
constitutional for a court to accept a defendant’s guilty plea, even though the defendant
maintained his innocence, when the state demonstrated a “strong factual basis for the plea”
and the defendant clearly expressed his desire to enter the plea based on his belief that the
state’s evidence would be sufficient to convict him. 400 U.S. at 38.
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prescribed; and inform probation within seventy-two hours if he changed his address or
telephone number. When the district court asked Clapp if he would like to tell the court
anything, Clapp said that “treatment is something [he’s] considering.” The district court
then released Clapp on probation.
On April 4, 2024, Clapp visited the probation office for the only time. Clapp failed
to maintain contact with probation after April 4, notwithstanding that probation attempted
to contact Clapp numerous times via letter, phone, and text. Because probation could not
contact Clapp, it was unable to randomly test him for alcohol and drugs. Therefore,
probation alleged the following violations: (1) failing to maintain contact with probation,
(2) failing to notify probation of an address change, and (3) failing to submit to random
drug or alcohol testing. Based on the alleged violations, the district court issued a warrant
in June for Clapp’s arrest. After Clapp turned himself in on the warrant, he submitted to a
drug test and tested positive for methamphetamine. The district court held a contested
probation-revocation hearing in July.
Although Clapp explained at the hearing that he used methamphetamine only when
he realized a warrant was out for his arrest because of the stress the warrant caused him,
he admitted that he violated the terms of his probation by failing to maintain contact with
his probation officer, failing to submit to random drug testing, and failing to abstain from
methamphetamine.
2

2 Probation withdrew the violation for failure to notify it of an address change.
4
During the hearing, the district court asked Clapp about his willingness to participate
in treatment court. Clapp responded that, “with all the requirements that . . . come with it”
and what “so many people have told” him about it, he was “willing to try” but did not
“wanna fail.” He explained, “I don’t wanna go to prison at the same time, but I don’t want
so much where I’m overbeared cause I tend to shut down really quick and I tend to . . . run
away from it.”
The district court heard arguments from Clapp’s attorney in favor of continuing
probation and from the state in favor of executing the sentence. T he district court then
revoked Clapp’s probation and executed the previously stayed sentence, stating:
I find that the violations are i n—intentional or inexcusable. I
am relying on—in making this finding, I am relying on the fact
that the Defendant is familiar with how probation works and
. . . the Defendant knew it was his responsibility to stay in
contact with probation. . . . Defendant did not respond to the
many attempted contacts through various forms including
phone and mail and other electronic communication, . . . he did
not respond to the many forms of contact by probation to . . .
set up his appointments or to submit to testing as required.
Additionally, when the Defendant found out about the warrant
he chose to use methamphetamine. . . . I would note that there
was no change of address or phone number. So, I find that the
Defendant’s . . . choice was to ignore probation’s attempted
contacts. I find that the need for confinement outweighs public
policy favoring probation. Confinement is necessary to protect
the public from further criminal activity and this is apparent
due to the Defendant’s ongoing use of —of drugs. I find that
the Defendant is in need of correctional treatment that can be
best offered if confined. Um, the Defendant did have the
opportunity to participate in treatment in the community . . .
specifically through treatment court and chose not to do so and
it would unduly depreciate the seriousness of the violation if
probation were not revoked. This is a serious violation because
. . . one of the very basic requirements of the privilege of being
on probation is to submit to su pervision and respond to
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probation when they contact you. If you’re not willing to do
that then . . . you . . . no longer have the privilege of being on
probation.

The district court made these findings from the bench and concluded that revoking Clapp’s
probation was necessary because the need for confinement outweighed policies favoring
probation.
Clapp appeals.
DECISION
Clapp argues that the district court abused its discretion when it revoked his
probation and found that the third Austin factor was met because it “only made general,
non-specific findings which are insufficient under Minnesota caselaw, and treatment in the
community had not been attempted, let alone exhausted.”
A district court may revoke probation if the probationer violates any condition of
that probation. Minn. Stat. § 609.14, subd. 1(a) (Supp. 2023). “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). “The 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. App. 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).
Even if another district court, in the proper exercise of its discretion, could have made a
6
different ruling on the same facts, that does not mean that the district court abused its
discretion in the present matter. State v. Blom, 682 N.W.2d 578, 613 (Minn. 2004).
When deciding whether to revoke probation and order execution of a prison
sentence, “the district court must independently determine whether revocation is
appropriate.” Fortner, 989 N.W.2d at 370. A district court must make three findings
before it may revoke a defendant’s probation following a violation. Austin, 295 N.W.2d at
250. “[T]he 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.” Id.
The district court must make specific findings on all three Austin factors before it
decides whether to revoke probation. State v. Modtland, 695 N.W.2d 602, 607-08 (Minn.
2005). A probation revocation cannot be “a reflexive reaction to an accumulation of
technical violations,” and the district court must determine that the defendant “cannot be
counted on to avoid antisocial activity.” Austin, 295 N.W.2d at 251 (quoting United States
v. Reed, 573 F.2d 1020, 1024 (8th Cir. 1978)). This is a fact-specific analysis, and the
district court must “create thorough, fact-specific records” to explain its reasons for
revoking probation. Modtland, 695 N.W.2d at 608.
Clapp argues that the record does not support the district court’s determination on
the third Austin factor because the district court “only made general, non-specific findings
which are insufficient under Minnesota caselaw, and treatment in the community had not
been attempted, let alone exhausted.” When analyzing the third Austin factor—“whether
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the need for confinement outweighs the policies favoring probation,” 295 N.W.2d at 250—
district courts consider the Modtland factors:
(i) [whether] confinement is necessary to protect the
public from further criminal activity by the offender; or
(ii) [whether] the offender is in need of correctional
treatment which can most effectively be provided if he is
confined; or
(iii) [whether] it would unduly depreciate the
seriousness of the violation if probation were not revoked.

Modtland, 695 N.W.2d at 607 (quotation omitted). A court need find the existence of only
one Modtland factor to support the district court’s finding for the third Austin factor. State
v. Smith, 994 N.W.2d 317, 320 (Minn. App. 2023), rev. denied (Minn. Sept. 27, 2023).
In its statements from the bench , the district court found that all three of the
Modtland factors supported the finding on the third Austin factor and, ultimately, the
revocation of Clapp’s probation. As to the first factor, the district court found that
confinement was “necessary to protect the public from further criminal activity and this is
apparent due to [Clapp’s] ongoing use of—of drugs.” As to the second factor, the district
court found that Clapp “is in need of correctional treatment that can be best offered if
confined” because Clapp had the opportunity to participate in community treatment and in
treatment court but chose not to participate. And as to the third factor, the district court
found that “it would unduly depreciate the seriousness of [Clapp’s] violation[s] if probation
were not revoked.” Regarding the third Modtland factor, the district court reasoned that
Clapp’s violations were serious because “ one of the very basic requirements of the
privilege of being on probation is to submit to supervision and respond to probation when
they contact you. If you’re not willing to do that then . . . you . . . no longer have the
8
privilege of being on probation.” We determine that the district court’s findings on all
three Modtland factors were sufficient and affirm. Even if the district court’s findings on
the first and third factors were insufficient, we conclude that Clapp’s arguments on the
second Modtland factor do not demonstrate that the district court’s finding there was
inadequate.
In support of its determination on the second Modtland factor that Clapp is in need
of correctional treatment that can most effectively be provided if he is confined, the district
court stated that Clapp continued to use methamphetamine, had not made an effort to
engage with probation, and did not express an affirmative willingness to participate in
treatment court. When the district court asked Clapp about his willingness to be in
treatment court, Clapp gave an evasive answer about liking the idea of it but being uncertain
about its efficacy for him.
Clapp argues that he did not have an opportunity to complete treatment in the
community because he last attempted treatment in 2022 and probation initially
recommended that he complete an updated substance-use assessment. Clapp asserts in his
brief that he “had already completed a substance use assessment which did not recommend
any treatment.” Our review of the record confirms both of Clapp’s factual assertions: that
he had recently completed a substance-use assessment that did not recommend
participation in a treatment program and that probation recommended that he complete a
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new substance-use assessment and follow its recommendations. At sentencing, the district
court ordered Clapp to complete and pay for a substance-use assessment:
You shall complete and pay for a substance use disorder
assessment or a comprehensive assessment, whichever is
directed by probation within thirty days of today’s date and
follow all clinical recommendations of that assessment.

Clapp argues that, notwithstanding the district court’s directives at sentencing, he “did not
have to do treatment initially because his first assessment did not recommend any
participation in treatment.” We disagree. Clapp’s argument concedes that probation
recommended that he complete a new assessment, and it is undisputed that the district court
ordered Clapp at sentencing to complete a new substance-use assessment and follow the
resulting recommendations.
Clapp also argues that the court should follow two nonprecedential opinions
requiring that district courts exhaust treatment options in the community before revoking
probation: State v. Stradtmann, No. A19-1322, 2020 WL 1845512, at *3-4 (Minn. App.
Apr. 13, 2020), and State v. Sayers, No. A15-1345, 2016 WL 1619389, at *3 (Minn. App.
Apr. 25, 2016). But these cases are not binding authority. Minn. R. Civ. App. P. 136.01(c)
(“Nonprecedential opinions . . . are not binding authority.”).
Finally, Clapp cites three nonprecedential opinions to argue that, when the district
court merely recites the Modtland factors without articulating its reasoning, this court
reverses the district court’s decision revoking probation: State v. Schwab, No. A16-1371,
2017 WL 875260, at *3 (Minn. App. Mar. 6, 2017), State v. Jones, No. A14- 2058,
2015 WL 4528943, at *4 (Minn. App. July 6, 2015), and State v. Aranjo, No. A14-0712,
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2014 WL 7344285, at *2 (Minn. App. Dec. 29, 2014). As set forth above, nonprecedential
opinions are not binding authority, and although they may be persuasive, we do not find
the opinions cited here persuasive because they are distinguishable. See Minn. R. Civ.
App. P. 136.01(c) (“Nonprecedential opinions . . . are not binding authority . . . but
nonprecedential opinions may be cited as persuasive authority.”).
The district court here made express findings that were based on the record,
identifying Clapp’s relevant behavior and related facts in a well-reasoned explanation that
stands in contrast to the opinions Clapp cites. In Schwab, the district court recited the
Modtland factors verbatim without identifying the bases on which it found them. 2017 WL
875260, at *2. In Jones, the district court did not discuss the third Austin factor or any of
the Modtland factors at all. 2015 WL 4528943, at *3-4. And in Aranjo, no transcript of
the appellant’s hearing existed “and the district court did not record an order making or
describing its findings”; therefore, this court could not “assess whether the district court
adequately articulated and substantiated the three Austin findings before revoking
[appellant’s] probation.” 2014 WL 7344285, at *2.
Because the district court articulated the factual basis underlying its express finding
that the second Modtland factor supported its determination that confinement outweighed
the policies favoring probation, we conclude that the district court did not abuse its
discretion when it revoked Clapp’s probation.
Affirmed.