This opinion will be unpublished and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

A16-0159

State of Minnesota,

Respondent,

vs.

Kamal Elyas Maqadin,

Appellant.

Filed October 3, 2016

Affirmed

Smith, John, Judge*

Hennepin County District Court

File No. 27-CR-14-6551

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

Michael O. Freeman, Hennepin County Attorney, Minneapolis, Minnesota (for 

respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public 

Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Johnson, Judge; and Smith, 

John, Judge. 

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

Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N

SMITH, JOHN, Judge

We affirm the district court’s order revoking appellant’s probation because the 

district court made a sufficient finding that the policies favoring probation no longer 

outweighed the need for confinement and because the district court’s finding is supported 

by the evidence in the record.

FACTS

On March 9, 2014, appellant Kamal Elyas Maqadin and his cousin, Dalal Idd, went 

to the Lifetime Fitness in Eden Prairie. In the locker room, Maqadin watched while Idd 

assaulted a gym member, J.C., repeatedly punching J.C. in the face. J.C. suffered a number 

of injuries as a result of the assault, including a broken nose, facial lacerations and bruising, 

and lasting difficulties with long-term memory. Idd took J.C.’s phone and wallet, which 

contained about $200, and gave the money to Maqadin. Maqadin drove himself and Idd 

away from the gym. Police later located and arrested both Idd and Maqadin. Idd was 

carrying J.C.’s wallet, which contained J.C.’s driver’s license and credit cards but no 

money, and Maqadin had concealed about $280 in his sock. 

On March 11, 2014, respondent State of Minnesota charged Maqadin with aiding 

and abetting first-degree aggravated robbery. Maqadin waived his right to a jury trial, and 

the case proceeded to a bench trial on July 30, 2014. The district court found Maqadin 

guilty as charged. The court granted Maqadin a downward dispositional departure by 

sentencing him to 57 months’ imprisonment, staying execution of the sentence for five 

years, and placing him on supervised probation. The court based its decision to grant a 
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departure on Maqadin’s “passive or limited role . . . in the overall incident.” The court 

placed a number of conditions on Maqadin’s probation, including that he have no use of 

alcohol or controlled substances and complete treatment at Minnesota Teen Challenge 

(Teen Challenge). 

Maqadin entered the inpatient treatment program at Teen Challenge on or about 

April 22, 2015, and completed the program on or about July 7. On July 30, Maqadin’s 

probation officer filed a probation-violation report, alleging that, on July 29, Maqadin was 

arrested by Eden Prairie police for driving while impaired (DWI) with an alcohol 

concentration of 0.17. At Maqadin’s request, the district court ordered a chemicaldependency assessment be performed on Maqadin, which recommended that Maqadin be 

placed in an intensive, outpatient treatment program. At a probation-violation hearing on 

October 28, Maqadin waived his right to require the state to prove his probation violations 

and admitted that he had been arrested and cited for DWI and that he had failed to abstain 

from alcohol. The court revoked Maqadin’s probation and executed his sentence of 57 

months’ imprisonment. 

This appeal follows.

D E C I S I O N

“A 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. Modtland, 695 N.W.2d 602, 605 (Minn. 2005) (quoting State v. Austin, 295 

N.W.2d 246, 249–50 (Minn. 1980)). “Before revoking a probationary sentence, a district 

court must: (1) specifically identify the condition or conditions violated; (2) find that the 
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violation was intentional or inexcusable; and (3) find that the policies favoring probation 

no longer outweigh the need for confinement.” State v. Osborne, 732 N.W.2d 249, 253 

(Minn. 2007) (citing Austin, 295 N.W.2d at 250). “[W]hether a lower court has made the 

findings required under Austin presents a question of law, which is subject to de novo 

review.” Modtland, 695 N.W.2d at 605. 

At the probation-violation hearing, Maqadin admitted that he had consumed alcohol 

and had been arrested and cited for DWI. Maqadin admitted that he did not have an excuse 

for his consumption of alcohol but explained: “I just relapsed. My—my cousin just got 

killed the other day and, you know, I was feeling miserable. And—and I know I’m a human 

being, I make mistakes . . . .” The district court found that Maqadin violated a condition of 

his probation by consuming alcohol and that the violation was intentional and inexcusable. 

Maqadin does not challenge the court’s findings on the first and second Austin factors on 

appeal. He instead argues that the court abused its discretion by revoking his probation 

because “the court did not articulate sufficient findings on the third Austin factor” and 

because “revocation was not warranted under the circumstances.” 

When considering the third Austin factor, “district courts must bear in mind that 

policy considerations may require that probation not be revoked even though the facts may 

allow it and that the purpose of probation is rehabilitation and revocation should be used 

only as a last resort when treatment has failed.” Id. at 606 (quotations omitted). “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 just their will.” Id. at 606–07 (quotations 
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omitted). “The decision to revoke probation cannot be a reflexive reaction to an 

accumulation of technical violations but requires a showing that the offender’s behavior 

demonstrates that he or she cannot be counted on to avoid antisocial activity.” Osborne, 

732 N.W.2d at 253 (quotation omitted). The supreme court has instructed that, when 

making findings on the third Austin factor, district courts should consider whether: 

“(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 

(iii) it would unduly depreciate the seriousness of the 

violation if probation were not revoked.”

Modtland, 695 N.W.2d at 607 (quoting Austin, 295 N.W.2d at 251). 

Maqadin argues that the district court failed to make a sufficient finding on the third 

Austin factor. The supreme court has emphasized that, “in making the three Austin findings, 

courts are not charged with merely conforming to procedural requirements” and that 

“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. “[R]ather, courts must 

seek to convey their substantive reasons for revocation and the evidence relied upon.” Id.

At the probation-violation hearing, the district court heard arguments from the state 

and Maqadin and a recommendation in favor of revocation from Maqadin’s probation 

officer. The court explained its decision to revoke Maqadin’s probation as follows: 

[I]t’s a tough case. A few things, as I look back on the case, 

when I heard you originally and now that I’ve heard more of it 

stand out. First one, is from where we started from, back when 

you were sentenced, and that was that this is—was a very 

serious case. I know that you weren’t the person that was the 

aggressor but you were working with that person and your 
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action was not to help the person that was lying unconscious 

and bleeding on the floor. But it was to run away carrying his 

wallet without taking any step to make sure that he was safe. 

That was why I gave you 57 months of prison time that was 

stayed because your role was minimal but it was in an 

occurrence that was extremely severe.

The second thing that was significant, was what you 

said yourself, and that your behavior was very much influenced 

by your chemical use. I’ve actually reviewed the sentencing 

transcript where you told me how your judgment, is impaired 

and you make very poor choices when you’ve been using 

chemicals, and that you and your attorney both expressed to 

me your strong commitment and your strong desire. Which I 

thought were sincere, that’s why I departed in the first place, 

um, to get a control over your chemical dependency, so you 

wouldn’t use, so you wouldn’t be in a position to make um the 

same types of bad choices that left [J.C.] unconscious at the 

Eden Prairie Lifetime Fitness.

You know the conclusion that I came to and I think you 

did as well, at the time, is when you use you’re dangerous. Not 

only to yourself but to others whether it’s making choices like 

with [J.C.] or even if you weren’t driving [for the charged DWI 

offense]—and I haven’t heard evidence that you were driving 

so I’m not basing this on a conclusion that you were driving 

while you were at a .17—but you were in an environment that 

whether or not the driver was sober or not affected by alcohol, 

it’s an environment where bad things can happen.

You took steps to try and get a hold of your chemical 

dependency, you went to Teen Challenge which 

most . . . recognize is one of the most rigorous programs that 

are available. With that being on the horizon and with your 

commitment to permanently addressing your chemical 

dependency, I was willing to depart. But once you get released 

from Teen Challenge, um, so quickly relapse and whether or 

not it’s as [the state] suggests that you’re not taking your 

sobriety seriously, or whether or not it’s a function of the level 

of chemical dependency that exists. The end result is the same 

that you very quickly used. You’re very susceptible to using 

when you’re not in a completely structured environment.
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Such that even though in a normal case, uh, if someone 

uses, they relapse because of you know chemical use, it’s very 

rare to revoke someone completely. I think this is that type of 

case where a revocation base[d] on a single violation of a no 

use provision is appropriate. Given what happens to your 

behavior when you do use, and how quickly you seem to 

relapse and use, when the opportunity in the community 

presents itself. 

So what I am going to do on the third Austin factor is 

find that it is necessary to revoke the stay and send you to 

prison for 57 months. Both to protect the public, cause I don’t 

have confidence that outside—in the outside community that 

you would be able to remain sober and make good choices. 

And also because you do succeed in a more structured 

environment, it seems like, that’s what Teen Challenge was 

like. And that’s where prison can provide the correctional 

treatment, I think, that may not be a[s] successful as in the 

outside world. So I am going to revoke the stay of 

execution . . . . 

Although the district court did not expressly find that the policies favoring probation 

no longer outweighed the need for confinement, the court based its decision to revoke 

Maqadin’s probation on two of the subfactors considered when determining whether the 

need for confinement outweighs the policies favoring probation—specifically, whether 

confinement is necessary to protect the public and whether the offender is in need of 

treatment that can most effectively be provided in confinement. Id. at 607. And the court 

discussed at length the factual basis for its decision to revoke Maqadin’s probation. We 

conclude that the district court made a sufficient finding on the third Austin factor. Cf. State 

v. Rottelo, 798 N.W.2d 92, 94 (Minn. App. 2011) (stating that “[t]he district court made 

the appropriate [Austin] findings” where district court found on the third Austin factor that 

“confinement is necessary, because not to execute the sentence would unduly depreciate 
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the seriousness of the violation if probation were not revoked” and that “the only way [the 

court] can be assured that [defendant] does have treatment is to have it take place in a 

correctional facility because he has not kept in contact with Probation” (quotations 

omitted)), review denied (Minn. July 19, 2011).

Maqadin also challenges the evidentiary support for the district court’s findings that 

revocation was necessary to protect the public and that Maqadin was in need of treatment 

that could most effectively be provided in confinement. Maqadin argues that he “had not 

committed any new crimes” and “did not present any threat to public safety” because he 

did not participate in the violence of the underlying offense and because there was no 

indication that he becomes violent when intoxicated. And Maqadin argues that treatment 

had not failed him because he “responded well to treatment [at Teen Challenge] and there 

[wa]s no reason to believe he would not build on that success while in the intensive 

outpatient program recommended by the [chemical-dependency assessor].” 

The district court partially based its decision to revoke Maqadin’s probation on the 

impact of Maqadin’s chemical use on his involvement in the aggravated robbery and his 

relapse soon after completing Teen Challenge. In the presentence investigation report, 

Maqadin indicated that he regularly smoked marijuana and consumed alcohol to the point 

of intoxication and that, on the day of the aggravated robbery, he smoked marijuana before 

and after the robbery. At the sentencing hearing, Maqadin’s attorney argued that Maqadin’s 

chemical use “at least indirectly created the situation that he is in.” And Maqadin told the 

court that he made the “crucial mistake of being impaired and unable to think properly on 

the day of the [aggravated robbery].” Maqadin stated: “My judgment on the day of the 
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[aggravated robbery] had a lot to do with me being impaired and not making the right 

decision. If I were in a better condition I would not have reacted like that on the day of 

the [robbery].” Although Maqadin completed inpatient treatment at Teen Challenge in 

early July 2015, he was arrested on July 29 for DWI and had an alcohol concentration of 

0.17. And in his chemical-dependency assessment, Maqadin reported that he “continued to 

use marijuana despite recently completing a treatment program.” 

The district court also based its decision to revoke Maqadin’s probation on the 

serious nature of his aggravated-robbery conviction. District courts may properly consider 

the severity of an underlying offense when making findings on the third Austin factor. See 

Modtland, 695 N.W.2d at 607 (directing district courts to consider ABA standards that 

courts should not revoke probation unless courts find one of three conditions is satisfied 

“‘on the basis of the original offense and the intervening conduct of the offender’” (quoting 

Austin, 295 N.W.2d at 251)); cf. Osborne, 732 N.W.2d at 253 (stating that “[d]espite the . . . 

ABA [s]tandards’ direction to consider only the offense and intervening conduct, 

determining the threat to the public and the need for confinement will, on occasion, require 

analysis of a defendant’s juvenile record”). And the supreme court has concluded that a 

defendant who committed a “severe” underlying offense was “entitled to less judicial 

forbearance.” Osborne, 732 N.W.2d at 254 (quotations omitted). In reaching its conclusion, 

the supreme court relied on the Minnesota Sentencing Guidelines, which stated:

“Great restraint should be exercised in imprisoning 

those violating conditions of a stayed sentence who were 

convicted originally of low severity offenses or who have short 

prior criminal histories. . . . Less judicial forbearance is urged 

for persons violating conditions of a stayed sentence who were 
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convicted of a more severe offense or who had a longer 

criminal history. Even in these cases, however, imprisonment 

upon a technical violation of the conditions of a stayed 

sentence should not be reflexive.”

Id. (emphasis added) (quoting Minn. Sent. Guidelines III.B). 

Here, Maqadin was convicted of aiding and abetting first-degree aggravated 

robbery, which is a severity-level 8 offense and carries a minimum presumptive executed 

sentence of 48 months’ imprisonment. Minn. Sent. Guidelines 2.C, 4.A, 5.A (Supp. 2013). 

Maqadin was thus entitled to less judicial forbearance than a person convicted of a lesssevere offense. Cf. Osborne, 732 N.W.2d at 254 (concluding defendant was entitled to “less 

judicial forbearance” based on commission of severity-level IX offense (quotation 

omitted)). 

Maqadin also argues that the district court erroneously failed to consider any 

community-based treatment programs as alternatives to revoking his probation. But the 

record reflects that the court here determined that a community-based treatment program 

would be insufficient to rehabilitate Maqadin. While the chemical-dependency assessment 

recommended Maqadin be placed in an intensive, outpatient treatment program, the court 

stated that Maqadin “quickly relapse[d]” after completing the inpatient treatment program 

at Teen Challenge, which the court noted “is one of the most rigorous programs that are 

available.” The court stated that Maqadin is “very susceptible to using when [he is] not in 

a completely structured environment”; that it did not “have confidence that . . . in the 

outside community [Maqadin] would be able to remain sober and make good choices”; and 
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that “[Maqadin] d[id] succeed in a more structured environment,” so it believed that prison 

could provide the treatment necessary for Maqadin to be successful. 

Based on the impact of chemical use on Maqadin’s commission of aiding and 

abetting aggravated robbery, his continued consumption of alcohol and marijuana after 

completing inpatient treatment at Teen Challenge, and the serious nature of the aggravatedrobbery offense, the record supports the district court’s findings on the third Austin factor. 

Cf. id. at 254–56 (concluding that district court did not abuse its discretion by revoking 

defendant’s probation based in part on defendant’s “minor” violation of marijuana use 

because defendant’s underlying offense was “severe,” his criminal history was “lengthy,” 

and decision to revoke probation was not “reflexive” as the court “took pains to consider 

all relevant facts and details and issued a thorough explanation of its decision” (quotations 

omitted)); State v. Losh, 694 N.W.2d 98, 102 (Minn. App. 2005) (concluding that district 

court did not abuse its discretion by revoking defendant’s probation based on single 

incident of drug use where underlying offense “was the result of the abuse of drugs and 

alcohol and poor choices” and “allow[ing defendant] to again use or be involved with 

people who use chemicals in violation of the conditions of probation would not serve the 

public interest” (quotations omitted)), aff’d, 721 N.W.2d 886 (Minn. 2006); State v. Ehmke, 

400 N.W.2d 839, 840–41 (Minn. App. 1987) (affirming revocation of probation where 

defendant was intoxicated at time of underlying offense and defendant violated probation 

by receiving multiple DWI convictions). We conclude that the district court did not abuse 

its discretion by revoking Maqadin’s probation.

Affirmed.