This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0041

                                   State of Minnesota,
                                       Respondent,

                                            vs.

                                 Jesus Ortega Rodriguez,
                                        Appellant.

                                Filed September 8, 2014
                                       Affirmed
                                   Rodenberg, Judge

                               Lyon County District Court
                                 File No. 42-CR-10-26

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Richard R. Maes, Lyon County Attorney, Marshall, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Worke, Presiding Judge; Schellhas, Judge; and

Rodenberg, Judge.

                        UNPUBLISHED OPINION

RODENBERG, Judge

      Appellant Jesus Ortega Rodriguez challenges the revocation of his probation,

arguing that the district court abused its discretion because the need for confinement does

not outweigh the policies favoring probation. We affirm.
                                          FACTS

       In May 2010, appellant entered an Alford plea of guilty to a charge of second-

degree criminal sexual conduct in exchange for the state’s dismissal of a first-degree-

criminal-sexual-conduct charge and the state’s agreement to a downward dispositional

departure from the Minnesota Sentencing Guidelines. The district court adopted the

departure agreement and sentenced appellant to 60 months in prison, but stayed execution

of the sentence and placed appellant on probation for 15 years. Appellant’s probation

was subject to several conditions, including that he obey all laws and refrain from using

drugs or alcohol.

       Over the next three years, appellant repeatedly violated the terms of his probation.

In October 2010, appellant admitted violating his probation by using drugs and alcohol.

The district court reinstated appellant’s probation and ordered him to serve 90 days in

jail. In January 2012, appellant admitted violating his probation by using alcohol. The

district court reinstated appellant’s probation and ordered him to serve 120 days in jail.

In March 2013, appellant admitted that he had violated his probation by failing to remain

law-abiding. Appellant had received five convictions for driving after revocation. The

district court again reinstated appellant’s probation and ordered him to complete 168

hours of community service. Three days later, appellant informed his probation officer

that he had received another citation for driving after revocation.

       Finally, in October 2013, appellant admitted violating his probation by being

convicted of (1) driving after revocation, (2) driving without a license, and (3) fleeing a




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police officer not in a motor vehicle. The district court revoked appellant’s probation,

stating:

              I’m going to make findings that [appellant] knew the
              conditions that were required of him as part of probation; that
              is, to remain law abiding. That the violations . . . must be
              considered intentional or inexcusable and the need for
              confinement outweighs policies favoring probation at this
              time. [Appellant] is in need of correctional treatment.
              [Appellant] has previously been sentenced with a . . .
              downward dispositional departure.              [Appellant] has
              demonstrated since sentencing a repeated behavior that
              indicate[s] that [he] is unable to follow the terms of probation
              and to remain law abiding; as evidenced by the three prior
              probation violations and this probation violation that alleges
              . . . three separate criminal convictions. As such, I would find
              that to not execute [appellant’s] sentence would unduly
              depreciate the seriousness of the violation and, as such, his
              probation must be revoked.

The district court executed appellant’s 60-month sentence, and this appeal followed.1

                                     DECISION

       When a probationer violates a condition of probation, the district court may

continue probation, impose intermediate sanctions, or revoke probation and impose the

stayed sentence. 

, subd. 3(2) (2012). 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.” State v. Austin, 

 (Minn. 1980). The district court’s determination that sufficient evidence exists

to revoke probation is reviewed for an abuse of discretion. 

. But whether

1
 The state chose not to file a brief in this appeal. In accordance with Minn. R. Civ. App.
P. 142.03, this case “shall be determined on the merits.”

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the district court satisfied the requirements under Austin to revoke probation is a question

of law, which we review de novo. State v. Modtland, 

 (Minn.

2005).

         Here, the district court found that appellant violated the conditions of his

probation, that his violations were “intentional or inexcusable,” and that “the need for

confinement outweighs policies favoring probation at this time.” Appellant does not

challenge the district court’s findings either that he violated probation or that the

violations were intentional and inexcusable. He argues only that the district court abused

its discretion in finding that the need for confinement outweighs the policies favoring

probation. See Austin, 

.

         When assessing whether revocation is proper under the third Austin factor, the

district court must consider whether (1) “confinement is necessary to protect the public

from further criminal activity by the offender”; (2) “correctional treatment . . . can most

effectively be provided if [the offender] is confined”; or (3) “it would unduly depreciate

the seriousness of the violation if probation were not revoked.” Modtland, 

. The district court need only find the existence of one of these subfactors. Austin,

. Here, the district court found that two subfactors support appellant’s

probation revocation: (1) appellant needs correctional treatment and (2) failing to execute

his sentence “would unduly depreciate the seriousness of the violation.” Modtland, 

.

         Appellant argues that his “probation violations had no connection to his

probationary offense.” But the similarity of the probation violations and the underlying


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offense is not a factor for the district court to consider. See 

; see also Austin,

 (holding that the district court did not abuse its discretion in

revoking the appellant’s probation even though his probation violation of failing to

follow his probation officer’s instructions regarding treatment was unrelated to his

burglary and aggravated-assault offenses).

       Appellant also argues that the district court’s findings on this factor are not

supported by the record. We disagree. Appellant’s original sentence was a downward

dispositional departure from the guidelines. He then repeatedly violated the conditions of

his probation. The record amply supports the district court’s finding that appellant was

“unable to follow the terms of probation and to remain law abiding.” Allowing appellant

to remain on probation and to continue violating the law “would unduly depreciate the

seriousness of the violation[s.]” See Modtland, 

. The district court

therefore did not abuse its discretion in revoking appellant’s probation.

       Affirmed.




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