This opinion is nonprecedential except as provided by Minn.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 A23-1106
State of Minnesota, Respondent,
vs.
Jordan Gregory Richardson, Appellant.
Filed April 29, 2024 Affirmed Larson, Judge
Lincoln County District Court File No. 41-CR-21-181
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Glen Alan Petersen, Lincoln County Attorney, Tyler, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Eva F. Wailes, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larson, Presiding Judge; Reyes, Judge; and Ede, Judge.
NONPRECEDENTIAL OPINION
LARSON, Judge
Appellant Jordan Gregory Richardson appeals from a district court order revoking
his probation. Because we conclude the district court did not abuse its discretion when it
revoked Richardson’s probation, we affirm. FACTS
In November 2021, respondent State of Minnesota charged Richardson with
multiple counts related to the possession of controlled substances and controlled-substance
paraphernalia. The state and Richardson entered into a plea agreement whereby
Richardson agreed to plead guilty to second-degree possession of a controlled substance
pursuant to Minn. Stat. § 152.022, subd. 2(a)(1) (2020), and in return the state would
dismiss the remaining charges and support Richardson’s request for a downward
dispositional departure—a stayed prison sentence and probation for five years.
Richardson pleaded guilty on August 18, 2022. Prior to sentencing, Richardson
voluntarily enrolled in the Southwest Community Adult Treatment Court Program (the
program) and entered inpatient treatment. The district court held a sentencing hearing on
September 29, 2022, and granted Richardson’s motion for a downward dispositional
departure. The district court sentenced Richardson to a stayed 68-month prison term and
placed him on probation for five years. The district court imposed several probation
conditions, including that Richardson complete the program, abstain from alcohol and
controlled substances, submit to random testing, and remain law abiding.
In early October 2022, Richardson transitioned from inpatient to outpatient
treatment. He continued to attend the program. During this time, the treatment court
repeatedly sanctioned Richardson for failure to comply with the program rules.
Richardson’s sanctions included verbal warnings, community work service, and jail time.
In late March 2023, Richardson was arrested for violating the program rules when
he stayed out past curfew and consumed several alcoholic beverages. The treatment court
2 sanctioned Richardson by imposing jail time, requiring additional in-person meetings with
program staff, revoking a travel request, and resetting Richardson’s progress in the
program.
Just over a week later, Richardson appeared in treatment court to discuss a second
arrest. This arrest resulted from a law-enforcement investigation that revealed text
messages between a woman and Richardson regarding the sale of controlled substances to
others. The treatment court informed Richardson that: (1) program staff had recommended
that the treatment court terminate Richardson from the program; (2) he had a right to an
attorney; and (3) he had a right to a hearing regarding his termination from the program.
Richardson asked to speak with an attorney, and the treatment court set a termination
hearing for two days later.
At the termination hearing, Richardson accepted that there was sufficient evidence
for termination, but asked the treatment court for another opportunity to complete the
program. The treatment court was unconvinced, observing that it had sanctioned
Richardson nearly every week, but the sanctions had been ineffective. The treatment court
also stated that Richardson had been dishonest with the treatment court virtually the entire
time he had been in the program. For these reasons, the treatment court terminated
Richardson from the program.
The next day, Richardson’s probation officer filed a probation-violation report with
the district court, alleging Richardson violated his probation when he failed to complete
the program. The report recommended the district court execute Richardson’s 68-month
prison term.
3 The district court held a probation-revocation hearing on May 2, 2023, where
Richardson admitted to the alleged violation. At the hearing, the prosecutor agreed with
the probation officer’s recommendation. The district court revoked Richardson’s
probation and issued a written order on May 11, 2023.
Richardson appeals. 1
DECISION
Richardson challenges the district court’s decision to revoke his probation.
“[R]evocation should be used only as a last resort when treatment has failed.” State v.
Austin, 295 N.W.2d 246, 250 (Minn. 1980). District courts have “broad discretion in
determining if there is sufficient evidence to revoke probation and should be reversed only
if there is a clear abuse of discretion.” Id. at 249-50. We review de novo whether the
district court made the required findings to revoke probation. State v. Modtland, 695
N.W.2d 602, 605 (Minn. 2005).
A district court must analyze three factors before it revokes probation (the Austin
factors). Id. at 606. The district court must: (1) “designate the specific [probation]
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.” Austin, 295 N.W.2d at 250. When analyzing the Austin factors, a district court
is “not charged with merely conforming to procedural requirements; rather, [it] must seek
1 The state did not file a brief in this case. Pursuant to Minn. R. Civ. P. 142.03, “the case shall be determined on the merits.”
4 to convey [its] substantive reasons for revocation and the evidence relied upon.” Modtland,
695 N.W.2d at 608.
Here, Richardson only challenges the district court’s application of the third Austin
factor. When determining the third Austin factor, district courts should consider three
subfactors (the Modtland subfactors): (1) whether “confinement is necessary to protect the
public from further criminal activity”; (2) if “the offender is in need of correctional
treatment which can most effectively be provided if he is confined”; or (3) whether “it
would unduly depreciate the seriousness of the violation if probation were not revoked.”
Id. at 607 (quoting Austin, 295 N.W.2d at 251). “Only one Modtland subfactor is necessary
to support revocation.” State v. Smith, 994 N.W.2d 317, 320 (Minn. App. 2023), rev.
denied (Minn. Sept. 27, 2023).
Richardson first argues the district court failed to make adequate findings under the
third Austin factor because it “failed to provide any justification or substantive analysis as
to why the ‘need for confinement outweighs the policies favoring probation.’” We
disagree.
In its written order, the district court applied the third Modtland subfactor and found
“[t]hat it would unduly depreciate the seriousness” of Richardson’s probation violation if
the district court did not revoke probation because: (1) Richardson was on probation for a
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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 A23-1106
State of Minnesota, Respondent,
vs.
Jordan Gregory Richardson, Appellant.
Filed April 29, 2024 Affirmed Larson, Judge
Lincoln County District Court File No. 41-CR-21-181
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Glen Alan Petersen, Lincoln County Attorney, Tyler, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Eva F. Wailes, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larson, Presiding Judge; Reyes, Judge; and Ede, Judge.
NONPRECEDENTIAL OPINION
LARSON, Judge
Appellant Jordan Gregory Richardson appeals from a district court order revoking
his probation. Because we conclude the district court did not abuse its discretion when it
revoked Richardson’s probation, we affirm. FACTS
In November 2021, respondent State of Minnesota charged Richardson with
multiple counts related to the possession of controlled substances and controlled-substance
paraphernalia. The state and Richardson entered into a plea agreement whereby
Richardson agreed to plead guilty to second-degree possession of a controlled substance
pursuant to Minn. Stat. § 152.022, subd. 2(a)(1) (2020), and in return the state would
dismiss the remaining charges and support Richardson’s request for a downward
dispositional departure—a stayed prison sentence and probation for five years.
Richardson pleaded guilty on August 18, 2022. Prior to sentencing, Richardson
voluntarily enrolled in the Southwest Community Adult Treatment Court Program (the
program) and entered inpatient treatment. The district court held a sentencing hearing on
September 29, 2022, and granted Richardson’s motion for a downward dispositional
departure. The district court sentenced Richardson to a stayed 68-month prison term and
placed him on probation for five years. The district court imposed several probation
conditions, including that Richardson complete the program, abstain from alcohol and
controlled substances, submit to random testing, and remain law abiding.
In early October 2022, Richardson transitioned from inpatient to outpatient
treatment. He continued to attend the program. During this time, the treatment court
repeatedly sanctioned Richardson for failure to comply with the program rules.
Richardson’s sanctions included verbal warnings, community work service, and jail time.
In late March 2023, Richardson was arrested for violating the program rules when
he stayed out past curfew and consumed several alcoholic beverages. The treatment court
2 sanctioned Richardson by imposing jail time, requiring additional in-person meetings with
program staff, revoking a travel request, and resetting Richardson’s progress in the
program.
Just over a week later, Richardson appeared in treatment court to discuss a second
arrest. This arrest resulted from a law-enforcement investigation that revealed text
messages between a woman and Richardson regarding the sale of controlled substances to
others. The treatment court informed Richardson that: (1) program staff had recommended
that the treatment court terminate Richardson from the program; (2) he had a right to an
attorney; and (3) he had a right to a hearing regarding his termination from the program.
Richardson asked to speak with an attorney, and the treatment court set a termination
hearing for two days later.
At the termination hearing, Richardson accepted that there was sufficient evidence
for termination, but asked the treatment court for another opportunity to complete the
program. The treatment court was unconvinced, observing that it had sanctioned
Richardson nearly every week, but the sanctions had been ineffective. The treatment court
also stated that Richardson had been dishonest with the treatment court virtually the entire
time he had been in the program. For these reasons, the treatment court terminated
Richardson from the program.
The next day, Richardson’s probation officer filed a probation-violation report with
the district court, alleging Richardson violated his probation when he failed to complete
the program. The report recommended the district court execute Richardson’s 68-month
prison term.
3 The district court held a probation-revocation hearing on May 2, 2023, where
Richardson admitted to the alleged violation. At the hearing, the prosecutor agreed with
the probation officer’s recommendation. The district court revoked Richardson’s
probation and issued a written order on May 11, 2023.
Richardson appeals. 1
DECISION
Richardson challenges the district court’s decision to revoke his probation.
“[R]evocation should be used only as a last resort when treatment has failed.” State v.
Austin, 295 N.W.2d 246, 250 (Minn. 1980). District courts have “broad discretion in
determining if there is sufficient evidence to revoke probation and should be reversed only
if there is a clear abuse of discretion.” Id. at 249-50. We review de novo whether the
district court made the required findings to revoke probation. State v. Modtland, 695
N.W.2d 602, 605 (Minn. 2005).
A district court must analyze three factors before it revokes probation (the Austin
factors). Id. at 606. The district court must: (1) “designate the specific [probation]
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.” Austin, 295 N.W.2d at 250. When analyzing the Austin factors, a district court
is “not charged with merely conforming to procedural requirements; rather, [it] must seek
1 The state did not file a brief in this case. Pursuant to Minn. R. Civ. P. 142.03, “the case shall be determined on the merits.”
4 to convey [its] substantive reasons for revocation and the evidence relied upon.” Modtland,
695 N.W.2d at 608.
Here, Richardson only challenges the district court’s application of the third Austin
factor. When determining the third Austin factor, district courts should consider three
subfactors (the Modtland subfactors): (1) whether “confinement is necessary to protect the
public from further criminal activity”; (2) if “the offender is in need of correctional
treatment which can most effectively be provided if he is confined”; or (3) whether “it
would unduly depreciate the seriousness of the violation if probation were not revoked.”
Id. at 607 (quoting Austin, 295 N.W.2d at 251). “Only one Modtland subfactor is necessary
to support revocation.” State v. Smith, 994 N.W.2d 317, 320 (Minn. App. 2023), rev.
denied (Minn. Sept. 27, 2023).
Richardson first argues the district court failed to make adequate findings under the
third Austin factor because it “failed to provide any justification or substantive analysis as
to why the ‘need for confinement outweighs the policies favoring probation.’” We
disagree.
In its written order, the district court applied the third Modtland subfactor and found
“[t]hat it would unduly depreciate the seriousness” of Richardson’s probation violation if
the district court did not revoke probation because: (1) Richardson was on probation for a
controlled-substance crime; (2) Richardson “was given a downward dispositional
departure”; (3) Richardson knew he needed to comply with his probation conditions;
(4) the treatment court sanctioned Richardson 12 times for failing to comply with the
program rules; (5) the treatment court imposed intermediate sanctions that failed to bring
5 Richardson into compliance; and (6) Richardson’s violations of the program rules included
selling controlled substances and consuming alcohol. Based on these findings, the district
court determined that the need for Richardson’s confinement outweighed the policies
favoring probation. We conclude the district court made adequate findings with respect to
the third Austin factor, and we discern no abuse of discretion in its decision that the third
Austin factor supported revoking probation.
Richardson alternatively argues that, even if the district court properly articulated
its reasoning, the district court still abused its discretion when it revoked probation because
other intermediate sanctions were available to the district court. We are not persuaded.
The district court placed Richardson on probation and allowed him to enter the
program after the state brought significant controlled-substances related charges against
him. The treatment court subsequently terminated Richardson from the program after
imposing numerous intermediate sanctions to try to bring Richardson into compliance. The
record indicates that Richardson continually failed to comply with the program rules
despite the treatment court’s repeated attempts to impress upon him the importance of
compliance. Given this record, we conclude the district court did not abuse its discretion
when it revoked probation rather than impose an intermediate sanction.
Affirmed.