This opinion is nonprecedential except as provided by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
                                     A23-1032

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                    Cole Samuel Tran,
                                        Appellant.

                                   Filed March 4, 2024
                                         Affirmed
                                    Halbrooks, Judge *

                              Sherburne County District Court
                                  File No. 71-CR-20-148

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

Kathleen A. Heaney, Sherburne County Attorney, George R. Kennedy, Assistant County
Attorney, Elk River, Minnesota (for respondent)

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

       Considered and decided by Cochran, Presiding Judge; Slieter, Judge; and

Halbrooks, Judge.




* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to

Minn. Const. art. VI, § 10.
                           NONPRECEDENTIAL OPINION

HALBROOKS, Judge

       Appellant challenges the revocation of his probation and execution of his sentence,

arguing that the district court abused its discretion by finding that the need for his

confinement outweighs the policies favoring probation. Because we conclude that the

district court properly exercised its discretion, we affirm.

                                          FACTS

       At the time of the incident underlying this matter, appellant Cole Samuel Tran was

prohibited from possessing a firearm based on a prior conviction. In January 2020, Tran’s

probation officer found a firearm in his backpack while Tran, then an 18-year-old high

school student, was at school. In February 2020, Tran was charged with possessing or

storing a dangerous weapon on school property pursuant to 

,

subd. 1d(a) (2018), possession of a firearm by an ineligible person pursuant to 

, subd. 1(2) (Supp. 2019), and receiving stolen property pursuant to 

, subd. 1 (2018).

       Tran pleaded guilty to possession of a firearm by an ineligible person. The district

court adjudicated Tran guilty under 

, subd. 1(2) and sentenced him

to a 60-month commitment stayed for five years. The district court noted that Tran’s age,

remorse, cooperation, and attitude in court favored granting the departure.

       The district court stated the following at the sentencing hearing:

                     While you are on probation, you are to have no use or
              possession of any non-prescribed mood-altering chemicals. . . .
              No drugs and no alcohol while you are on probation.


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                     You will be subject to random testing at the direction of
              Community Corrections to make sure that you are chemical
              free. It’s at their direction, so—and it’s random. You need to
              make sure that you contact your probation officer and get set
              up to make sure that those random tests are done. They will be
              done at the frequency that the Community Corrections officer
              thinks is appropriate based on what they are seeing. . . .

                      And I am ordering that you get that chemical
              dependency evaluation done within 30 days of your
              release. . . .

                     ....

                    . . . You are also to follow all of the recommendations
              from that evaluation. . . .

                     I am also ordering that you complete the Sherburne
              County cognitive restructuring program or another cognitive
              restructuring program in the county where you reside.

       In March 2023, the Minnesota Department of Corrections filed a probation-violation

report alleging that Tran had failed to (1) remain law-abiding, (2) maintain contact with

probation, (3) abstain from the use of mood-altering chemicals, and (4) comply with

random chemical testing. On March 24, the district court issued a warrant for Tran’s arrest.

On March 29, Tran surrendered to law enforcement.

       In an updated violation report, corrections officers provided the district court with

further information, including that Tran had been charged with “two felonies and a

misdemeanor, all [of] which are chemical related offenses” and admitted to alcohol and

marijuana use the day prior to turning himself in to law enforcement. The additional

offenses were charged in Stearns County which alleged via criminal complaint that Tran

was driving with an alcohol concentration of 0.091 and was in possession of six grams of

cocaine. If found in violation of probation, corrections officers recommended the district


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court reinstate Tran’s probation with additional conditions, including 90 days in jail and a

chemical-use assessment.

       In a second, updated violation report, corrections officers stated that they had

“overlooked that [Tran] received a dispositional departure at sentencing” and modified the

recommendation. The modified recommendation was revocation of the stay of execution

for Tran’s 60-month sentence.

       The district court held a revocation hearing. During the hearing, Tran admitted to

using controlled substances including marijuana, failing to report for two urinalysis (UA)

tests, attempting to falsify a UA by using another individual’s urine, and failing to report

for meetings with his probation officer. The district court found that Tran was in violation

of the terms of his probation and that the violations were intentional and inexcusable. The

district court found that the need for confinement in Tran’s case outweighed the policies

favoring probation, revoked Tran’s probation, and executed Tran’s 60-month sentence.

       This appeal follows.

                                        DECISION

       Tran argues that the district court abused its discretion by revoking his probation

because the record does not support that the need for his confinement outweighs the

policies favoring probation.

       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, 

 (Minn. 1980). “‘A district court abuses its

discretion when its decision is based on an erroneous view of the law or is against logic


                                              4
and the facts in the record.’” State v. Hoskins, 

, 211 (Minn. App. 2020)

(quoting State v. Hallmark, 

 (Minn. 2019)). But whether the district

court made the required findings under Austin is a question of law that we review de novo.

State v. Modtland, 

 (Minn. 2005).

       If a district court finds that a criminal defendant violated a condition of probation,

the district court may either continue the offender on probation or revoke probation and

execute a previously stayed sentence. 

, subds. 1, 3 (2022); see also

Minn. R. Crim. P. 27.04, subd. 3(2)(b)(iv)-(v). Prior to revoking probation, a district court

must follow the three-factor analysis identified in Austin by (1) “designat[ing] the specific

condition or conditions that were violated,” (2) “find[ing] that the violation was intentional

or inexcusable,” and (3) “find[ing] that need for confinement outweighs the policies

favoring probation.” Austin, 

. Because Tran’s argument focuses on the

third Austin factor, our analysis is focused on whether the district court erred in finding that

factor was satisfied.

       The third Austin factor requires the district court to “balance the probationer’s

interest in freedom and the state’s interest in insuring his rehabilitation and the public

safety, and base [its] decisions on sound judgment and not just [its] will.” Modtland, 

 (quotation omitted). This factor is satisfied only if the district court finds

“on the basis of the original offense and the intervening conduct of the offender” that:

                     (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



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                      (iii) it would unduly depreciate the seriousness of the
              violation if probation were not revoked.

 at 607 (quoting Austin, 

).

       District courts “should not assume that they have satisfied Austin by reciting the

three factors and offering general, non-specific reasons for revocation.” Id. at 608. And a

district court must be mindful that the purpose of probation is rehabilitation, and revocation

should be a last resort. Id. at 606. Therefore, district courts must make “thorough, fact-

specific records” and “seek to convey their substantive reasons for revocation and the

evidence relied upon.” Id. at 608.

       Tran contends that the district court abused its discretion because the district court’s

findings do not show its reasons for determining that treatment would be best provided to

Tran in confinement as opposed to community treatment options. Tran argues that the

district court abused its discretion because it made no findings about why Tran could not

pursue chemical treatment in the community and that Tran would be more likely to receive

effective chemical treatment in prison. Because the record supports that the district court

considered Tran’s previous treatment in the community, we disagree.

       The district court explained its reasoning at the probation-revocation hearing:

                     There’s no doubt, Mr. Tran, that you need treatment,
              and you’ve had three years to try to get treatment. . . . [Y]ou
              have not made any effort to avail yourself of the resources that
              had been provided to you over the past three years. . . .[T]he
              probation officer’s report . . . demonstrates a pattern over the
              past six months, which . . . [has] been going on for much
              longer than six months, but this is just an outline of . . . your
              attempts to avoid Probation and also avoid detection of
              chemical use that you’ve had clearly throughout your
              probation . . . .


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              [W]hat’s clear to the Court in this pattern is that—for example,
              with respect to your testing, you were called to report . . . [y]ou
              didn’t report then, but three weeks later you did and you were
              negative. You were called to report [again]. You didn’t report
              then, but you did roughly three weeks later and you were
              negative. And what that shows me is that you’re waiting until
              the substance is out of your system, you’re showing up when
              you want to, and you’re testing when you believe you’re going
              to be negative. And that’s further evidenced by the fact that
              when you do come in on the time when you’re not sure if
              you’re not going to be negative or if you’re clean, you bring
              something to avoid detection.

                     So it shows me that there is this ongoing pattern of your
              use, ducking from Probation, avoiding contact with them,
              showing up when you think it’s going to satisfy Probation,
              you’re going to be negative, and then you go right back to your
              old ways, all the while not using any of the resources that the
              Court has provided to you through probation including the
              requirement that you get a chemical use assessment and you
              follow all those recommendations.

                      You haven’t done anything to demonstrate to the Court
              that the decision that I made years ago to depart was the right
              one. . . . You have done nothing over the past three years
              when . . . I gave you every opportunity to show that you were
              serious about your sobriety, that you were serious about
              remaining law abiding, and that you were serious about making
              a change in your life that was going to keep you out of custody
              instead of sending you to prison . . . .

       In response to Tran’s argument that probation should be continued because he

successfully completed treatment in 2020, the district court reiterated that it had been a

long time since his treatment and that Tran had resumed his former patterns following

treatment. The district court stated:

              [T]he need for confinement in this case outweighs the policies
              that do favor probation. Namely, because confinement is
              necessary first to protect the public from further criminal


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              activity; second, because you are in need of correctional
              treatment which can be—is only really going to be provided
              during confinement, because we’ve tried any kind of treatment
              while you’ve been on probation, and not sending you to prison,
              remaining on probation would unduly depreciate the
              seriousness of the violation of your probation . . . I am
              committing you to the Commissioner of Corrections for a
              period of 60 months.

       The Minnesota Supreme Court has reasoned that it is not unreasonable to conclude

treatment has failed when a probation offender failed to take advantage of treatment

opportunities or “show a commitment to rehabilitation.” Austin, 

. And

this court’s decisions in State v. Fleming, 

 (Minn. App. 2015),

aff’d, 

 (Minn. 2016), and State v. Fortner, 

, 376 (Minn.

App. 2023), are instructive.

       In Fleming, we concluded that the district court did not abuse its discretion by

determining that treatment would be best provided in confinement when a probation officer

testified that the probationer had already participated in the programming of which the

officer was aware. 

. In Fortner, we affirmed revocation of probation,

concluding that the district court adequately explained and supported its decision that the

probationer needed treatment in a confined setting. 

 at 377. The district

court found that the community-treatment program available to the probationer was the

same program available when he was sentenced and reasoned that because the defendant

had ultimately left that program and resumed the same pattern of substance use, he needed

treatment in a confined setting. 

.




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       As in Fleming and Fortner, the district court here considered that while Tran had

previously completed community treatment, he did not maintain his sobriety or seek any

additional treatment in the preceding three years. Based on this record, we conclude that

the district court did not abuse its discretion by finding that Tran is in need of treatment

that can only be provided in the context of confinement. See Austin, 

-

50 (stating that 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”).

       Affirmed.




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