This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Steven S. Nelson,



Filed March 1, 2005


Dietzen, Judge


Redwood County District Court

District Court File No. KX-03-135


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Michelle A. Dietrich, Redwood County Attorney, Michael G. Moesenthin, Assistant County Attorney, P.O. Box 130, Redwood Falls, MN 56283 (for respondent)


John M. Stuart, State Public Defender, Ngoc L. Nguyen, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant Steven Nelson challenges the district court’s revocation of his probation, arguing that (1) he had no prior probation violations; (2) the violations were technical; and (3) a sanction short of imprisonment was reasonable.  Because we hold that the district court did not abuse its discretion by revoking Nelson’s probation, we affirm. 


In September 2003, a jury found Nelson guilty of terroristic threats, interference with a 911 call, domestic assault, and obstructing legal process, stemming from an incident at his estranged wife’s home.  The district court found aggravating sentencing factors and sentenced Nelson to 45 months in prison, which was a triple upward departure from the presumptive sentence of 15 months.  The district court stayed execution of the prison sentence and placed Nelson on probation, specifically prohibiting him from having contact with the victim. 

            In February 2004, Nelson’s probation officer filed a violation report alleging that Nelson placed telephone calls to the victim’s residence and lied about the calls when asked by the probation officer.  At the probation-revocation hearing, the probation officer testified that he told Nelson not to call the victim’s home because the victim could answer the phone.  Nelson wanted to contact his daughters, so the probation officer allowed him to call the daughters’ cell phones.  In his testimony, Nelson admitted making calls to the victim’s home, but maintained that his probation officer allowed it so long as he hung up the phone if the victim answered. 

            The district court found that the calls violated the no-contact order, because even if the victim did not answer the phone, Nelson’s number would appear on the phone’s caller-identification system, which could intimidate the victim.  The district court also found that Nelson lied about making the calls, which was a further violation of his probation.  The district court revoked Nelson’s probation and sentenced him to 30 months in prison, which was a double upward departure from the presumptive sentence.  After he filed his notice of appeal, Nelson moved to stay the appeal and remand to the district court for resentencing pursuant to Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004).  On September 14, 2004, we denied the motion for the stay and stated that Nelson could raise the Blakely issue either in his brief or in a postconviction petition.       


Nelson argues that the district court improperly revoked his probation because it was his first violation and the violations were technical, making imprisonment unwarranted.  Nelson claims that there was no contact when he called the victim’s residence or, in the alternative, that he misunderstood his probation officer’s instructions not to call the residence.  The state contends that Nelson’s calls struck at the heart of his probationary condition to not contact the victim. 

            “The trial 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).  District courts must follow a three-part test before probation may be revoked: (1) identify the probationary condition(s) that were violated; (2) find that any violations were “intentional or inexcusable”; and (3) balance the need for confinement with policies favoring probation.  Id. at 250.  But a decision to revoke probation cannot be a reflexive judgment that punishes mere technical violations.  Id. at 251.  Additionally, a court should not revoke probation without weighing necessary factors, such as whether the seriousness of the original crime would be depreciated if probation was not revoked.  Id

            Applying the Austin test, the district court found that Nelson violated his probation when he telephoned the victim’s residence and when he lied about the calls to his probation officer.  The district court specifically found that Nelson “inexcusably” violated his probation and that confinement was “necessary to protect the public from further criminal activity[.]”  The district court rejected Nelson’s arguments that the phone calls were not contact because the victim did not pick up the phone, using the analogy that one could be charged with harassing phone calls “simply for the act of phoning[.]”  Finally, the district court added that reinstating Nelson’s probation would “unduly deprecate the seriousness of the violation[s].”       

            Given the evidence in the record, the district court did not abuse discretion by revoking Nelson’s probation.  The district court properly evaluated the probation-revocation factors under the Austin standard, and we defer to that evaluation.

            Finally, a footnote in Nelson’s brief indicates his intent to challenge the district court’s double upward departure in a postconviction proceeding: “The departure is unconstitutional under Blakely v. Washington.  Because the district court has not addressed the issue, appellant is challenging it by post-conviction as the court suggested in its order September 14, 2004.”  Because Nelson has elected not to raise the Blakely issue for appellate review, but rather wishes to advance the claim in a postconviction petition, we decline to address the issue.