Mr. Ohlenberg is currently handling an appeal to the Minnesota Court of Appeals of a probation violation case where the defendant’s sentence was executed and defendant was sent to prison to serve the balance of his sentence for failing to successfully complete sex offender treatment. This is a situation where the defendant did not re-offend but, instead, his violation was that he did not get along well with his counselors at the treatment program who thought he was not progressing at a rapid enough pace through the treatment process.

• As with most cases that go up to the court of appeals, the law in this area is complex and requires that the court find that:the defendant was given notice of the alleged violation,

• the violation was intentional or inexcusable, and
• factors favoring confining in prison outweigh policies favoring continuing the person on probation.

These 3 factors are called the Austin factors which were first stated in a case titled, State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).

A district court judge decided to send the probationer back to prison and Mr. Ohlenberg believes that the judge committed “plain error” in making this decision. Specifically, the defendant should have been allowed to see if he could re-enter the treatment program from which he had been discharged, or, alternatively, been allowed to attempt to find another similar program. This is particularly true in this day and age when defendants who are out on probation can be monitored with GPS(global positioning and monitoring bracelets) while they remain out of custody, and seek to reintegrate into society. It is Mr. Ohlenberg’s belief that sending a person back to prison on a probation violation should be a last resort which only is ordered when all other options have been tried and have failed and the public safety could be endangered.