State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0460

State of Minnesota,
Respondent,

vs.

Susan Marie Erickson,
Appellant.

Filed November 13, 2018
Affirmed
Johnson, Judge

Renville County District Court
File No. 65-CR-12-382

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

David Torgelson, Renville County Attorney, Laurence Stratton, Assistant County
Attorney, Olivia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Connolly, Judge; and Johnson,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Susan Marie Erickson was detained for five -and-one-half months between the
issuance of a probation-violation report and the district court’s revocation of her probation.

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The district court awarded her custody credit for the entire time she was detained. On
appeal, Erickson argues that this court should reverse the revocation of her probation and
reinstate her probation on the ground that the dist rict court did not hold a probation-
violation hearing in a timely manner . We conclude that, regardless whether the district
court erred, Erick son is not entitled to reversal and reinstatement because she received
custody credit for the entire time she was detained. Therefore, we affirm.
FACTS
In 2014, Erickson pleaded guilty in Renville County to a charge of first -degree
controlled-substance cr ime. T he district court imposed a sentence of 132 months of
imprisonment but stayed the execution of the sentence and placed her on probation for
seven years.
On July 3, 2017, a corrections agent issued a probation-violation report in which he
alleged that Erickson committed three probation violations in June 2017. On July 5, 2017,
the district court issued a warrant for Erickson’s arrest and detention. On August 4, 2017,
Erickson personally wrote a letter to the assigned district court judge, informing him that
she was being detained in the Kandiyohi County jail. On August 8, 2017, the district court
scheduled a hearing for September 25, 2017.
Erickson appeared at the September 25, 2017 hearing and denied the alleged
violations. The district court scheduled a probation -violation hearing for November 2,
2017.

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At the November 2, 2017 hearing, the state requested a continuance on the ground
that one of it s witnesses was unavailable. The district court granted the request and
rescheduled the hearing for November 7, 2017.
At the November 7, 2017 hearing, the state presented the testimony of two witnesses
and rested its case. Erickson’s attorney requested that the hearing be continued so that he
could present the testimony of Erickson’s chemical -dependency counselor, who had been
subpoenaed but had not appeared due to the advice of counsel . The state did not object,
and the district court gr anted Erickson’s request. The district court noted that Erickson’s
jail term in Kandiyohi County was due to expire on November 13, 2017, and stated that
Erickson should be transferred to the Renville County jail after that date. The district court
issued an order stating that Erickson was informed of the reasons for the continuance and
was “agreeable” to it.
On November 22, 2017, Erickson personally wrote a letter to the assigned district
court judge in which she asked to be released in light of her right to a probation-violation
hearing within seven days. She stated that she was “still . . . waiting for the witnesses the
prosecution wanted.” On November 28, 2017, the district court judge responded in a letter
to Erickson, with copies to her attorney and the prosecutor, stating that “the delay of
rescheduling was at [her] request” and that if she ha d changed her mind and did not wish
to present the testimony of her treatment counselor, she should so inform her attorney, in
which case the district court wo uld set another hearing date. The district court judge
concluded the letter by stating that the court “will wait to hear from your attorney as to the
resolution of the legal challenge to the treatment counselor subpoena.”

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On December 1, 2017, the district court scheduled a probation-violation hearing for
December 14, 2017. At that hearing, Erickson presented the testimony of two chemical-
dependency treatment counselors. Erickson had planned to testify on her own behalf. But
at approximately 4:25 p.m., the district court stated that it would not be possible to complete
the hearing that day. Erickson objected to a continuance , but the district court continued
the hearing to December 19, 2017.
At the December 19, 2017 hearing, Erickson completed her presentation of evidence
by testifying on her own behalf. The district court made an oral finding that Erickson had
violated the terms of her probation. On December 20, 2017, the district court issued an
order in which it revoked Erickson’s proba tion and ex ecuted her prison sentence. In the
order, the district court stated that Erickson “shall receive all jail credit to date , which is
651 days through December 20, 2017. ” The district court file contains a memorandum
from Erickson’s probation officer to the district court with a calculation of Erickson’s
custody credit. The probation officer included all time Erickson spent in custody between
the July 3 , 2017 probation -violation report and the December 20, 2017 order , including
time spent both in Kandiyohi County and in Renville County. Erickson appeals.
D E C I S I O N
Erickson argues that the district court erred by not holding a probation -revocation
hearing within seven days , as required by rule 27.04, subdivision 2(4)(b), of the rules of
criminal procedure. She further argues that the appropriate remedy is a reversal of the
revocation of her probation and the reinstatement of her probation.

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The United States Supreme Court has held that a probationer has a constitutional
right, based on th e Due Process Clause of the Fourteenth Amendment, to a revocation
hearing within a reasonable time. Gagnon v. Scarpelli, 411 U.S. 778, 781-82, S. Ct. 1756,
1759-60 (1973); Morrissey v. Brewer , 408 U.S. 471 , 487 -88, 92 S. Ct. 2593, 2603 -04
(1972). In Minnesota, this constitutional right is embodied in the rule s of criminal
procedure, which state, “The revocation hearing must be held within a reasonable time.”
Minn. R. Crim. P. 27.04, subd. 2(4)(a). The rules further state, “If the probat ioner is in
custody because of the violation report, the hearing must be within 7 days.” Id., subd.
2(4)(b). If a district court does not hold a probation -violation hearing with in seven days
and later revokes probation, the former probationer is entitled to custody credit for the
excessive time spent in custody awaiting the probation -violation hearing . See State v.
Compton, 340 N.W.2d 358, 360 (Minn. App. 1983).
Erickson’s argument for reversal is based on the se cond rule quote d above. She
asserts that the seven-day period began to run when she arrived at the Renville County jail
on November 13, 2017. But she does not discuss whether a hearing must be completed
within seven days or whether continuances are permitted . She also does not spe cify
precisely when the district court committed error. She simply argues, “Where a probationer
is revoked after an unreasonable delay in holding a hearing, the only remedy is reversal for
reinstatement on probation.” For this proposition, she cites two precedential opinions of
this court: Compton and State v. Liebfried, 345 N.W.2d 281, 283 (Minn. App. 1984).
Erickson misreads Compton and Liebfried. Neither opinion authorizes the remedy
she seeks. In Compton, this court determined that there was a six-month delay in holding

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a probation-revocation hearing and, accordingly, concluded that the appellant was “entitled
to credit against the sentence for the time period between the issuance of the arrest and
detention order and the actual revocation and execution of sentence.” 340 N.W.2d at 360.
In Liebfried, this court de termined that the district court erred by detaining a
probationer for two months before holding a probation-revocation hearing. 345 N.W.2d at
282-83. We also determined that the district court erred by imposing a sentence that was
48 months longer than the presumptive sentence without stating reasons for a departure.
Id. at 283. We concluded by reversing the revocation of appellant’s probation, but that
remedy was necessary because the appellant already had served more prison time than
permitted by the presumptive guidelines sentence. Id. As such, t he reversal of the
revocation of Liebfried’s probation was not attributable to the district court’s failure to hold
a probation-violation hearing within seven days. See id.
Accordingly, we look to Compton for the appropriate remedy for a violation of rule
27.04, subdivision 2(4)(b). The Compton opinion demonstrates that the proper remedy is
an award of custody credit. 340 N.W.2d at 360. Erickson has not cited any other
precedential opinion for the proposition that she is entitled to reversal of the revocation of
her probation, and we are not aware of any such caselaw.
Erickson received custody credit for th e entire time between the July 3 , 2017
probation-violation report and the December 20, 2017 order revoking her probation. In
light of that fact, we need not decide whether the district court erred by not holding a
probation-revocation hearing within seven days, as required by rule 27.04, subdivision
2(4)(b). Assuming without deciding that such an error occurred, Erickson already has

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received the remedy to which she would be entitled. Thus, the district court did not err by
revoking her probation and executing her sentence instead of reinstating her probation.
Affirmed.