State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0479

State of Minnesota,
Respondent,

vs.

Tom Jr. Trass,
Appellant.

Filed December 9, 2019
Reversed and remanded
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-16-30723

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Nicole Cornale, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Pr esiding Judge; Smith, Tracy M., Judge; and
Kalitowski, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment 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, TRACY M., Judge
Pursuant to an agreement with the state in a probation-revocation proceeding based
on a new criminal charge, appellant Tom Tra ss demanded execution of his sentence in
exchange for dismissal of the new charge. Consistent with this agreement, the district court
executed Trass’s sentence although Trass had fewer than nine months to serve in prison.
Trass now appeals, arguing that the district court erred by honoring his request to
execute his sentence because Minn. Stat. § 6 09.135, subd. 7 (2016), prohibits it. In the
alternative, Trass argues that honoring hi s execution demand was prohibited because his
probation was not more onerous than prison. He also argues that the district court erred by
denying his request for substitute counsel. Because we conclude that Minn. Stat. § 609.135,
subd. 7, prohibited the district court from honoring Trass’s execution demand, we reverse
and remand to the district court for further probation-revocation proceedings.
FACTS
In January 2017, Trass was convicted, upon his guilty plea, of violating a domestic-
abuse no-contact order (DANCO) pursuant to Minn. Stat. 629.75, subd. 2(d)(1) (2016).
The district court sentenced Trass to 21 months’ imprisonment, stayed execution of the
sentence, and placed him on probation for three years. His conditions of probation included
serving 90 days in jail, with eligibility for electronic home monitoring after 30 days;
abiding by a probationary DANCO and ha ving no contact with the victim, C.H.;
maintaining contact with his probation officer; remaining law abiding; and following other
standard terms and conditions of probation.

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On October 1, 2018, the state charged Trass with a new DANCO violation, alleging
that Trass had been in contact with C.H. Probation filed a corresponding notice of violation
in the first case, alleging that that Trass had violated his probation conditions by failing to
remain law-abiding and by contacting C.H. The two cases tracked together before the
district court. At Trass’s first appearance fo r the new charge, the district court set bail on
that matter but ordered that Trass be held without bail on the probation-violation matter.1
At an omnibus hearing on October 31, 2018, Trass entered a speedy-trial demand in
the new case and denied the probation violation in the first case. Trial for the new case was
set for December 31, 2018. No additional pr oceedings were scheduled for the probation-
violation matter at that time.
The state later moved to continue the Dece mber 31 trial, and the parties appeared
before the district court on December 19, 20 18 to address the continuance motion. Over
Trass’s objection, the district court found g ood cause to continue the trial outside the
speedy-demand period and rescheduled the trial for February 19, 2019. The district court
offered, however, to schedule a contested probation-violation hearing (also known as a
“Morrissey hearing,” see Morrissey v. Brewer , 408 U.S. 471, 484, 92 S. Ct. 2593, 2602
(1972)) on Trass’s first DANCO case for the following week. Trass, through his counsel,
agreed to this arrangement, and the Morrissey hearing was scheduled for December 27,
2018. The district court informed Trass that the standard of proof at the Morrissey hearing
would be clear and convincing evidence, not proof beyond a reasonable doubt.

1 The alleged violation would be Trass’s third probation violation in this case.

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When the parties appeared on December 27 for the Morrissey hearing, Trass
immediately stated that he would not participate in the hearing and that he had “fired” his
public defender. Trass asserted that he did not know that the hearing was happening and
that his public defender had scheduled it without his “full knowledge.” Trass and the
district court then discussed Trass’s concerns about his public defender in more detail, and
Trass eventually agreed to speak with his public defender privately before making a
decision about how to proceed.
After speaking with his public defender, Trass informed the district court he would
continue with the public defender as his attorney. Trass then waived his right to a Morrissey
hearing and demanded execution of his sentence in the first DANCO case. In exchange for
Trass’s execution demand, the state had agre ed to dismiss the ne w DANCO charge. The
district court followed the agreement of the pa rties and executed the sentence in the first
DANCO case. Trass’s probation agent informed the court that Trass had 163 days of
custody credit to be applied to that sentence. Neither party objected to this number, and the
district court awarded Trass 163 days of custody credit. This meant that Trass would serve
about 8 months and 21 days in prison and be released September 16, 2019, absent
disciplinary infractions.
On March 25, 2019, Trass a ppealed to this court from the district court’s order
executing his sentence.
D E C I S I O N
Trass argues that the district court e rred by honoring his request to execute his
sentence because Minn. Stat. § 609.135, su bd. 7, prohibits his execution demand.

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Alternatively, he argues that his executio n demand was prohibited because his probation
was not more onerous than prison. Trass also argues that the district court erred by denying
his request for substitute counsel at the December 27, 2018 hearing. He argues that any one
of these three alleged errors is a basis for re versal of the order executing his sentence and
remand for a probation-violati on hearing. We begin with wh ether Minn. Stat. § 609.135,
subd. 7, prohibits Trass’s execution demand.
Whether the district court made the findings required for the revocation of probation
is a question of law, which appellate courts review de novo. State v. Modtland, 695 N.W.2d
602, 605 (Minn. 2005). Trass’s argument prim arily turns on the interpretation of Minn.
Stat. § 609.135, subd. 7, and statutory interpretation is also a question of law reviewed de
novo. Cocchiarella v. Driggs, 884 N.W.2d 621, 624 (Minn. 2016).
When sentencing a criminal defendant, a di strict court may stay execution of a
prison sentence and place the defendant on probation. Minn. Stat. § 609.135, subd. 1(a)(2)
(2016). Generally, if a defendant is accused of violating the terms of probation, a district
court needs to “1) designate the specific condition or conditions that were violated; 2) find
that the violation was intentio nal or inexcusable; and 3) fi nd that need for confinement
outweighs the policies favoring probation” befo re it may order execution of the stayed
sentence. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).
In 1982, though, the Minnesota Supreme Court held that a defendant with a stayed
sentence has the right to demand execution of that sentence “if the conditions of probation
make probation more onerous than prison.” State v. Randolph , 316 N.W.2d 508, 510
(Minn. 1982). In doing so, the court reasoned that,

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[w]hile a defendant may prefer to go to prison, society also has
an interest that may well include a period of incarceration of
the defendant followed by the thre at of prison as a means of
encouraging a defendant to accept treatment, make restitution,
change his lifestyle or other desirable ends.

Id.
In 1989, the legislature limited the execution-demand right announced in Randolph
as follows: “An offender may not demand execution of senten ce in lieu of a stay of
imposition or execution of sentence if the offender will serve less than nine months at the
state institution.” Minn. Stat. § 609.135, subd. 7; see also State v. Parson, 457 N.W.2d 261,
264 n.6 (Minn. App. 1990) (explaining that “[t]he supreme court established the right of a
criminal defendant to demand execution of a sentence” but “[t]he le gislature eliminated
this right when an offender would serve less than nine months in a state institution”), review
denied (Minn. July 31, 1990). In State v. Samarzia, 452 N.W.2d 727 (Minn. App. 1990),
review denied (Minn. Apr. 25, 1990), the appellant-def endant argued that he still had an
“absolute” right to demand execution of his sentence under Randolph. This court disagreed,
holding that Minn. Stat. § 609.135, subd. 7, negated his right and prevented him from
demanding execution because he would only serve approximate ly eight months and one
week in prison. Samarzia, 452 N.W.2d at 728.
Trass and the state agree that, pursuant to Minn. Stat. § 609.135, subd. 7, Trass had
no right to demand execution of his sentence if he would serve less than nine months in
prison. Trass asserts that, at the time he made his execution demand, he would serve only

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8 months and 21 days on his executed sentence, after accounting for good time2 and custody
credit.3 The state acknowledges that the district court awarded Trass 163 days of custody
credit and that, if this number is correct, Trass would serve less than nine months’
imprisonment.
The state argues, however, that the record is “unclear” as to how much custody
credit Trass was entitled to on his sentence when he dema nded its execution. The state
asserts that, from a review of “Minnesota Government Ac cess,” Trass may have been
entitled to only 134 days of credit. If this is true, Trass would have had over nine months’
imprisonment to serve, so the statute would not bar his execution demand.
Because the state did not raise the issue of the proper amount of custody credit in
the district court, and because it does not support its argument with evidence in the record,
we decline to consider this argument. An appellate court “generally will not decide issues
that were not raised before the district court.” Roby v. State, 547 N.W.2d 354, 357 (Minn.
1996). And “[t]he record on appeal consists of the documents filed in the district court, the
offered exhibits, and the transcript of the pr oceedings, if any.” Minn. R. Crim. P. 28.02,
subd. 8. The record before th is court is clear as to Tra ss’s custody credit; the alleged

2 An executed felony sentence presumptively consists of im prisonment for two-thirds of
the sentence followed by supervis ed release for the remaining third, absent disciplinary
infractions. Minn. Stat. § 244.101, subd. 1 (2016); see also Carrillo v. Fabian, 701 N.W.2d
763, 772 (Minn. 2005) (“[U]nder Minnesota’s current sentencing scheme, there is a
presumption . . . that the inmate will be rele ased from prison on a certain date—and that
presumption is overcome only if the inmate commits a disciplinary offense.”).

3 Defendants are entitled to have their term of imprisonment reduced by the number of days
“spent in custody in connection with the offe nse or behavioral incident.” Minn. R. Crim.
P. 27.03, subd. 4(B).

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ambiguity was not raised before the distri ct court and comes only from a source outside
the record.
Based on the record before this court, Trass had 163 days of custody credit when he
demanded execution of his sentence. The parties agree that, if this number is correct, Trass
had less than nine months to serve in a corre ctional facility. The plain language of Minn.
Stat. § 609.135, subd. 7, prohibits a defendant from “demand[ing] execution of sentence in
lieu of a stay of imposition or execution of sentence if the offender will serve less than nine
months at the state institution.” Thus, the di strict court was without authority to order
execution of Trass’s sentence based solely on Trass’s execution demand. In order to
permissibly execute his sentence, the district court needed to follow the process and make
the findings outlined in Austin, 295 N.W.2d at 250. We accordingly reverse the order
executing the sentence and remand for further probation-violation proceedings.
Because we conclude that Minn. Stat. § 609.135, subd. 7, prohibits Trass’s
execution demand, we need not reach Trass’s other two arguments for reversal of the
district court’s order and remand to the district court.
Reversed and remanded.