State of Minnesota, Respondent, v. Jeffrey Lynn Porter, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-99-1322

C5-99-1559

State of Minnesota,
Respondent,
 
vs.
 
Robin John Razmyslowski,
Appellant.

Filed April 4, 2000

Affirmed in part and reversed in part
Klaphake, Judge

Concurring specially, Shumaker, Judge

Polk County District Court

File Nos. K1-90-1282/K6-91-11/KX-98-1167

Mike Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, 525 Park St., Suite 500, St. Paul, MN  55103; and

Wayne Swanson, Polk County Attorney, 612 North Broadway, Ste. 301, Crookston, MN  56716 (for respondent)

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN  55414-3230 (for appellant)

            Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.

KLAPHAKE, Judge

            This consolidated appeal is from post-sentencing orders denying appellant Robin Razmyslowski's motions to correct his sentence and to award him custody credit for time spent at the Minnesota Security Hospital in St. Peter in a sex offender program as a condition of probation.  Because the law does not support an award of credit and the record does not establish that Razmyslowski's confinement was the equivalent of incarceration in a correctional facility, we affirm the denial of custody credit.  We reverse the denial of sentence correction because the original sentence was intended as a presumptive sentence and the trial court's retroactive attempt at departure was improper.

FACTS

            Razmyslowski pleaded guilty in 1991 to several counts of criminal sexual conduct.  The trial court imposed concurrent stayed sentences and ordered Razmyslowski to complete the Intensive Treatment Program for Sexual Aggressives (ITPSA) at the security hospital in St. Peter as a condition of probation.

            After Razmyslowski had spent more than four years in the ITPSA program, it closed in 1996.  In 1999, Razmyslowski pleaded guilty to two counts of criminal sexual conduct.  The district court revoked his probation, executed the previously stayed 122-month sentence from 1991, and sentenced him to 51 months on the new conviction, to be served consecutive to the 1991 sentence.  Razmyslowski requested custody credit for his time in the ITPSA program.  The court issued an order denying the request.

            Razmyslowski then moved for a correction of sentence, arguing that because the 1999 sentence was consecutive to the 1991 sentence, a criminal history score of zero should have been used to calculate the presumptive sentence at 39, not 51 months. Four days after this motion was filed, the district court filed a departure report, listing several aggravating factors.  Razmyslowski also filed a second motion for custody credit for the ITPSA program, which the district court denied.

I.

            Razmyslowski argues that the district court erred in maintaining the 51-month duration of the 1999 sentence by filing a post-sentencing departure report after Razmyslowski had pointed out that the sentence was calculated based on an incorrect criminal history score.  We agree.

            The state concedes that because the district court ordered the 1999 sentence to run consecutively, the court should have used a criminal history score of zero, making the correct presumptive sentence 39 months, not 51 months.  The district court attempted to justify the 51-month duration by filing a departure report, long after sentencing. 

            A departure must be supported by reasons stated on the record at the time of sentencing.  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).  A court intending to impose the presumptive sentence, but erroneously calculating that sentence, may not later "amend retroactively its reasons and depart from the guidelines."  State v. Thieman, 439 N.W.2d 1, 7 (Minn. 1989).  The district court therefore erred in maintaining the improperly calculated 51-month presumptive sentence by filing a retroactive departure report.  See State v. Hopkins, 486 N.W.2d 809, 812 (Minn. App. 1992).  We reverse the order denying Razmyslowski's motion to correct the sentence to 39 months.

II.

            Razmyslowski argues that the district court erred in denying his motion to correct his sentence by adding custody credit for time spent in the ITPSA treatment program at the security hospital in St. Peter as a condition of probation.

            The sentencing guidelines specify:

Credit should not be extended for time spent in residential treatment facilities * * * as a condition of a stay of imposition or stay of execution.

Minn. Sent. Guidelines III.C.04.  This court, accordingly, has affirmed the denial of custody credit for "time spent receiving therapy at St. Peter [Security Hospital] as a condition of probation."  State v. Peterson, 359 N.W.2d 708, 710 (Minn. App. 1984), review denied (Minn. Mar. 13, 1985).

            Razmyslowski argues that because the security hospital in St. Peter is as secure and confining as a correctional facility, he should be given credit.  We disagree.  Peterson acknowledged that St. Peter is "a physically secure structure similar to many correctional institutions."  Id.  Moreover, Razmyslowski has provided little, if any, evidence to support a finding that his confinement at St. Peter was equivalent to incarceration in a correctional facility.  The record shows only that his security rating was Level 4 (which is not explained) and that he had work assignments, including one on the grounds crew, that allowed him freedom of movement around the facility grounds.

            Razmyslowski argues that equal protection requires awarding credit.  But, as discussed above, he has not shown he was subject to a degree of confinement similar to that of others granted credit.  Moreover, his legal status as a probationer was different from that of a person subject to civil commitment.  Cf. State v. Bonafide, 457 N.W.2d 211, 214 (Minn. App. 1990) (holding that person held in St. Peter under civil commitment order during pendency of criminal proceedings was entitled to credit).  Accordingly, we affirm the denial of custody credit.

            Affirmed in part and reversed in part.

SHUMAKER, Judge (concurring specially)

I concur in the result and write separately only to suggest that courts should be guided by considerations of fundamental fairness and not by labels in dealing with custody credit issues.  If the incarceration is the functional equivalent of a placement in a jail, workhouse, or other correctional facility, custody credit ought to be allowed.

Because our workhouse and prisons also provide "residential treatment," fairness requires that we look beyond the label attached to a facility and inquire as to whether the facility operates basically as a jail.

I agree with the majority that, on this record, we are unable to determine whether or not the security hospital operated essentially as a correctional facility.