State of Minnesota, Respondent, vs. Steven Brent Jacobson, 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This opinion will be unpublished and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
C5-99-220

State of Minnesota,
Respondent,

vs.

Jerry Randall Granmo,
Appellant.

Filed July 13, 1999
Affirmed
Lansing, Judge

Clay County District Court
File No. K0-98-1097

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Lisa N. Borgen, Clay County Attorney, Christopher C. Myers, Assistant County Attorney, Clay County Courthouse, 807 11th Street North, Moorhead, MN 56561-0280 (for respondent)

Jose J. Monsivais, Vogel, Weir, Bye, Hunke & McCormick, Ltd., 502 First Avenue North, Fargo, ND 58102 (for appellant)

Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Huspeni, Judge.[*]

 

U N P U B L I S H E D   O P I N I O N

LANSING,

Judge

In an appeal from entry of an amended jail-commitment order, Jerry Granmo asserts the district court impermissibly increased his sentence. The judge did not amend Granmo's sentence but, rather, amended the written jail-commitment order to conform to the oral pronouncement at sentencing, and we therefore affirm.

 

FACTS

Jerry Granmo pleaded guilty to the charge of terroristic threats in violation of Minn. Stat. § 609.173, subd. 1 (1998). The plea to a reduced charge was entered as part of a plea agreement with the state. Under the agreement, Granmo agreed to plead guilty and accept an upward durational departure that included serving a one-year sentence in the Clay County jail with Huber privileges and without any "good time."

Granmo entered his plea on November 5, 1998. The prosecutor outlined the plea agreement, specifically stating that the defendant "would serve one year in the Clay County Jail with no good time." The court asked Granmo if that was his understanding, and he responded, "It is." The court then personally conducted a plea inquiry that included specifically asking Granmo if he understood that he would be sentenced to one year in the Clay County jail with no time off for good behavior. Granmo again responded, "Yes." The court informed Granmo that if the plea of guilty was not accepted, he would stand trial on the original charge. The court continued the sentencing until December 7 to allow for preparation of a presentence investigation.

At the December 7 sentencing hearing, the prosecutor, the defense attorney, and the court repeatedly referred to the general requirements of the plea agreement. When a question arose over whether the plea agreement called for a stay of execution or a stay of imposition, the judge conferred with the county attorney and the defense attorney, who both indicated the plea agreement called for a stay of execution. The judge conformed the sentence precisely to the plea agreement.

In pronouncing Granmo's jail term the court stated, "you shall serve one full year" in jail. The written jail-commitment order, however, did not expressly state "without good time." Granmo began serving his jail term on December 9, 1998. On January 25, 1999, the court on its own motion held a second hearing on Granmo's sentence. At the hearing the court amended its earlier written jail-commitment order to expressly state that Granmo's one-year jail term was without provision for early release for "good time." Granmo appeals, contending that the district court's amendment to his jail-commitment order impermissibly increased his sentence.

 

D E C I S I O N

The oral sentence pronounced by the judge at a sentencing hearing constitutes the judgment of the court. Johnson v. Mabry, 602 F.2d 167, 170 (8th Cir. 1979); see Hill v. United States, 298 U.S. 460, 464, 56 S. Ct. 760, 762 (1936) (judgment pronounced is the sentence imposed); see also United States v. Bergmann, 836 F.2d 1220, 1221 (9th Cir. 1988) (the "actual oral pronouncement in the presence of the defendant" is the defendant's sentence) (citation omitted); State v. Rasinski, 527 N.W.2d 593, 595 (Minn. App. 1995) (oral pronouncement rather than written commitment order determines sentence imposed). The district court, in pronouncing sentence, is to "state the precise terms of the sentence." Minn. R. Crim. P. 27.03, subd. 4(A). Minnesota's Rules of Criminal Procedure permit a district court to amend a written commitment order to correct a clerical error.

Clerical mistakes in judgments, orders, or other parts of the record or errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.

Minn. R. Crim. P. 27.03, subd. 8; see Fed. R. Crim. P. 36 (same).

In pronouncing Granmo's sentence at the sentencing hearing, the judge stated:

[Y]ou shall serve one full year in the Clay County Jail with credit for time previously served in connection with this matter.

(Emphasis added). The phrase "one full year" reflects the provision in Granmo's plea agreement that he serve one year in the county jail, without good time, as a condition of his probation.

In convening the January 1999 hearing and amending the jail-commitment order, the district court made a clerical correction to conform the jail-commitment order to the pronounced sentence. See Johnson, 602 F.2d at 170 ("it was manifestly proper for the state trial court to correct the clerical order in the initial [written] commitment order so that it was consistent with the judgment of the court"); State v. Wallace, 782 P.2d 53, 54-55 (Idaho Ct. App. 1989) (affirming imposition of sentence that conformed to oral pronouncement, when written commitment order omitted condition of sentence imposed in the judge's oral pronouncement). Read together, the plea proceedings and the sentencing proceedings twice explicitly and once implicitly established that the sentence was to be served without good time, but the court, in an exercise of caution, added the phrase "without good time" to the jail-commitment order.

The state argues that Granmo's sentence is ambiguous. We do not find the sentence ambiguous, but even if it were ambiguous we would reach the same conclusion. When the oral pronouncement of a defendant's sentence is ambiguous, "then, in an attempt to discern the intent of the district court at the time it imposed sentence, the reviewing court may consider extrinsic evidence." United States v. Khoury, 901 F.2d 975, 977 (11th Cir. 1990) (citation omitted). The transcript of the sentencing hearing, whether intrinsic or extrinsic, demonstrates the judge intended to sentence Granmo to a year in jail without good time.

Granmo asserts that by amending the written commitment order to reflect the without-good-time provision, the court violated Minn. R. Crim. P. 27.03, subd. 9, by increasing the length of time Granmo will serve from eight months to twelve months. But Granmo's argument overlooks the court's ability to amend a written order to reflect the court's oral pronouncement under Minn. R. Crim. P. 27.03, subd. 8. The court did not increase or change Granmo's sentence; it only amended his written jail-commitment order to reflect the "one full year" sentence imposed on Granmo at his sentencing hearing. The district court did not err or violate rule 27.03, subd. 9, in amending Granmo's written commitment order under rule 27.03, subd. 8, to conform the written jail-commitment order to the oral pronouncement at sentencing.

 

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.