This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-2216

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                 Ryan Allen Bartyzal,
                                     Appellant.

                               Filed November 30, 2015
                                      Affirmed
                                   Schellhas, Judge

                              Scott County District Court
                      File Nos. 70-CR-07-12369, 70-CR-14-3484

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Carson J. Heefner, Heefner Nelson Law, P.A., St. Paul, Minnesota (for appellant)

      Considered and decided by Cleary, Chief Judge; Schellhas, Judge; and Klaphake,

Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellant argues that the evidence was insufficient to support the district court’s

revocation of his probation. We affirm.

                                            FACTS

       The facts are undisputed. In May 2008, appellant Ryan Bartyzal pleaded guilty to

third-degree criminal sexual conduct and fourth-degree criminal sexual conduct. Bartyzal

committed third-degree criminal sexual conduct against S.E.K. when he was 19 years old

and she was 15 years old. He committed fourth-degree criminal sexual conduct against

E.M.K. when he was 20 years old and she was 15 years old. In sentencing Bartyzal, the

district court departed downward dispositionally by staying imposition of sentence on the

third-degree conviction and placing Bartyzal on probation for five years. On the fourth-

degree conviction, the court imposed a sentence of 66 months’ imprisonment, which it

stayed for five years with concurrent probation.

       On March 11, 2010, Scott County Community Corrections (SCCC) filed a

probation violation report against Bartyzal, alleging that he failed to refrain from the use

of alcohol or non-prescribed drugs based on Bartyzal’s admission that he had consumed

alcohol on three different occasions. At his probation violation hearing, Bartyzal admitted

to the alleged violation, and the district court reinstated Bartyzal’s probation with three

days in jail as an intermediate sanction.

       On March 21, 2013, SCCC filed a second probation violation report against

Bartyzal. The report alleged that Bartyzal had failed to remain law-abiding because he


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was charged with felony domestic assault in July 2012, failed to successfully complete

outpatient sex-offender treatment because he was terminated from the treatment program

at CORE Professional Services P.A. in March 2013, and possessed sexually explicit

materials. At his probation violation hearing, Bartyzal admitted to failing to complete

sex-offender treatment and possessing sexually explicit materials. The district court

reinstated and extended Bartyzal’s probation for three years or until completion of sex-

offender treatment and imposed an intermediate sanction of 180 days in jail.

       On August 21, 2014, SCCC filed a third probation violation report against

Bartyzal, alleging that he had failed to successfully complete sex-offender treatment

because he again was terminated from the program at CORE in August 2014, failed to

submit to urinalysis testing, and failed to submit to polygraph examination. Bartyzal

admitted to these violations at his probation violation hearing. At a disposition hearing on

September 29, the district court accepted Bartyzal’s admissions, found that his probation

violations were intentional and inexcusable, and stated:

              [W]e said [at the 2013 probation violation hearing] you’ve
              got to stop screwing around. Here we are.
                      You know, there’s some language in the statute about
              diminishing the seriousness of—you know, that we continue
              people on probation after violation and violation and
              violation, and after a while it just looks like we don’t have
              any reason to have violations because it doesn’t matter
              because we just keep continuing down the same road. At
              some point, I start to look foolish and Probation starts to look
              foolish because they keep asking you to do the same things,
              and you don’t do them; and whether or not it’s nervousness or
              you being aloof, the impression they are getting is you are
              laughing and you are yawning and you are not doing what
              you need to do in these programs.



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                     In the end, we have to say, well, we can’t seem to get
              Mr. Bartyzal’s attention that this is serious, and I guess that’s
              our real concern is that this has gone on and on and on. Your
              lawyer is right, it’s been a long time, but it’s been a long time.
              You should be through this stuff by now.

The court revoked Bartyzal’s probation, revoked the stays of imposition and execution,

and executed concurrent sentences of 28 months’ imprisonment and five years’

conditional release for the third-degree criminal sexual conduct conviction and 66

months’ imprisonment and lifetime conditional release for the fourth-degree criminal

sexual conduct conviction.

       This appeal follows.

                                      DECISION

       Before revoking probation, 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.” State v. Austin, 

 (Minn. 1980). Bartyzal challenges the

sufficiency of the evidence with respect to the third Austin factor.1

       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.” 

 at 249–50. “When determining if revocation is appropriate, courts must

balance ‘the probationer’s interest in freedom and the state’s interest in insuring his

rehabilitation and the public safety,’ and base their decisions ‘on sound judgment and not

1
  Because Bartyzal “concedes that failure to make express [Austin] findings is not an
abuse of discretion where the record contains sufficient evidence supporting revocation,”
we do not address whether the district court made a proper third Austin finding.

                                              4
just their will.’” State v. Modtland, 

, 606–07 (Minn. 2005) (quoting

Austin, 295 N.W.2d at 250–51). To satisfy the third Austin factor, courts should consider

whether (1) “confinement is necessary to protect the public from further criminal activity

by the offender,” (2) “the offender is in need of correctional treatment which can most

effectively be provided if he is confined,” or (3) “it would unduly depreciate the

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

(quotation omitted); accord Modtland, 

.

       Bartyzal focuses on whether his confinement is necessary to protect the public

from further criminal activity, arguing that “except [for] an innocuous mistake,” he was a

“model probationer,” despite the fact that he still had not completed sex-offender

treatment “roughly five years after being placed on probation.” He contends that, while it

was “taking him a little longer than usual to complete” the treatment program, he was

“unjustly terminated” from the program for not completing one polygraph examination

and being unprepared for two group sessions. He asserts that he was only terminated

from the program after a new individual was placed in charge, who was “simply

unfamiliar with [Bartyzal]’s progress over the course of 6 years, and witnessed a few

rules violations in a short period of time,” and that “[he] was terminated from a program

in which he was making progress.”

       In addressing the third Austin factor, the district court stressed Bartyzal’s repeated

failure to do the things that he had been ordered to do throughout his probationary period

and expressed a belief that “it would unduly depreciate the seriousness of the violation if

probation were not revoked.” See Austin, 

 (quotation omitted); see


                                             5
also State v. Fleming, 

 (Minn. App. 2015) (stating that

consideration of downward dispositional departure when deciding whether to revoke

probation is proper); Minn. Sent. Guidelines 3.B (2014) (stating that, when considering

whether to revoke a stayed sentence, “[l]ess judicial tolerance is urged for offenders who

were convicted of a more severe offense”).

      Based on our careful review of the record, we conclude that the evidence amply

supports the district court’s findings and that the court did not abuse its discretion by

revoking Bartyzal’s probation.

      Affirmed.




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