State of Minnesota, Respondent, vs. Daniel R. Spencer, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

STATE OF MINNESOTA

IN COURT OF APPEALS

State of Minnesota,

Respondent,

vs.

Daniel R. Spencer,

Appellant.

Filed June 19, 2001

Hennepin County District Court

File No. 99060691

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, Betsy Clink (certified student attorney), 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)

            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant argues that he is entitled to jail credit for the time he spent at the Hennepin County Home School as a condition of his extended-jurisdiction juvenile (EJJ) probation.  Because the Hennepin County Home School is a treatment facility rather than a correctional facility, we affirm.

In November 1996, appellant Daniel R. Spencer was adjudicated delinquent as an EJJ after admitting his involvement in two burglaries.  Spencer was committed for 14 months to the Adolescent Male Treatment Program at the Hennepin County Home School (HCHS).  The court also sentenced Spencer to consecutive prison terms of 26 months and 18 months, respectively, for the two burglaries but stayed commitment to the Commissioner of Corrections until Spencer's 21st birthday on the condition that he not violate the terms of his probation. 

            In July 2000, the court found that Spencer had willfully violated his probation by using alcohol and marijuana.  The court vacated the stay of the prison sentences.  It gave Spencer credit for 184 days served at the Hennepin County Juvenile Detention Center and the Hennepin County Workhouse.  On appeal, Spencer argues that the district court erred by not also giving him credit for the 14 months he spent at HCHS.

The transcript of the probation-revocation hearing shows that Spencer did not raise the issue of jail credit.  Appellate courts generally will not review an issue if it was not raised in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  But we have authority to consider this issue in the interests of justice, and we choose to do so here.  Minn. R. Civ. App. P. 103.04.

The decision to grant jail credit is not discretionary with the district court.  State v. Fritzke, 521 N.W.2d 859, 861 (Minn. App. 1994); see also Minn. R. Crim. P. 27.03, subd. 4(B) (providing that time spent in custody "shall be automatically deducted from the sentence" and term of imprisonment).  The Minnesota Sentencing Guidelines commentary provides:

[C]redit for time spent in custody as a condition of a stay of imposition or stay of execution is limited to time spent in jails, workhouses, and regional correctional facilities.  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 cmt. III.C.04. 

The burden is on Spencer to show that HCHS is a jail, workhouse, or regional correctional facility.  See State v. Wilkinson, 539 N.W.2d 249, 252 (Minn. App. 1995) (holding that offender has burden to establish entitlement to specific  jail credit).  Spencer cites State v. Bowman, an unpublished opinion of this court, in arguing that HCHS is a regional correctional facility.  State v. Bowman, No. C7-98-1892, 1999 WL 153788 (Minn. App. Mar. 23, 1999); but see Minn. Stat. § 480 A. 08, subd. 3 (2000) (providing that "[u]npublished opinions of the court of appeals are not precedential").  In that case, Bowman's sentence was stayed on the condition that he successfully complete a treatment program at the Minnesota Correctional Facility at Red Wing, but he subsequently asked that his sentence be executed.  Bowman, 1999 WL 153788, at *1.  This court held that Bowman was entitled to jail credit for time spent at Red Wing because (1) he had been committed to the "care and custody of the Commissioner of Corrections" and (2) Red Wing is defined, by statute, as a "correctional facility."  Id. 

Spencer reasons that because HCHS "is under the general management and control" of the Hennepin County Corrections Department, HCHS is the functional equivalent of Red Wing, and he is therefore, under Bowman, entitled to jail credit for the time he spent there.  He also argues that to deny him jail credit for the time he spent at HCHS is a violation of his constitutional right to equal protection.

The issue before this court is whether HCHS is a correctional facility or a residential treatment facility.  While at HCHS, Spencer was in the "Adolescent Male Treatment Program" (AMTP).  During his 14-month stay, Spencer (1) received chemical-dependency treatment, (2) took part in individual and group-therapy sessions, (3) regularly met with social workers and a psychiatrist, and (4) took part in family therapy with his mother.  Additionally, in Spencer's discharge report, the AMTP's program director refers to HCHS as a "treatment program," and she reported that Spencer had "complied with the basic expectations of the program and completed his treatment goals."  The record therefore supports a conclusion that HCHS is a residential treatment facility rather than a correctional facility.

Even where a residential treatment facility is a physically secure structure similar to a correctional facility, a defendant is not entitled to jail credit.  State v. Peterson, 359 N.W.2d 708, 710 (Minn. App. 1984), review denied (Minn. Mar. 13, 1985). Moreover, Bowman is distinguishable because Red Wing is defined by statute as a correctional facility, while HCHS is not.  See Minn. Stat. § 242.41 (2000). 

Spencer has not met his burden of showing that, for the purpose of calculating jail credit, HCHS is a jail, workhouse, or regional correctional facility.  Therefore, the district court did not err by not granting Spencer jail credit for the time he spent at HCHS.  Further, the issue of an equal-protection violation was not raised before the district court and is thus not properly before this court.[1]  Roby, 547 N.W.2d at 357.

            Affirmed.

[1] Even if we were to review this issue, there is nothing in the record that would allow us to determine whether Spencer and Bowman were in fact similarly situated as a result of their commitments to HCHS and Red Wing, respectively.  Moreover, this court recently held that an offender's equal-protection rights are not violated when a district court denies jail credit for time spent in a residential treatment facility.  State v. Bradley, ___ N.W.2d ___, ___, 2001 WL 605053, at *5-*6 (Minn. App. June 5, 2001).