J.B., et al., Appellants, vs. Mounds Vista, Inc., d/b/a Mermaid Supper Club Banquet Center and Lanes, Respondent, Jerry D. Baker, Defendant.

This opinion will be unpublished and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

State of Minnesota,

Respondent,

vs.

James Robert Walker,

Appellant.

Filed October 17, 2000

Anoka County District Court

File No. K9936276

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

Robert M.A. Johnson, Anoka County Attorney, Douglas G. Peine, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303-2265 (for respondent)

Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm, Chartered, 800 Ceresota Building, 155 Fifth Avenue South, Minneapolis, MN 55401-2526 (for appellant)

            Considered and decided by Harten, Presiding Judge, Randall, Judge, and Halbrooks, Judge.

RANDALL, Judge

Appellant challenges his sentences, arguing that the district court erred in calculating his jail credit.  We affirm. 

In 1993, appellant James Robert Walker pleaded guilty to three counts of third-degree criminal sexual conduct for offenses committed in 1990-92.  The district court stayed imposition of the sentences and ordered restitution, community service, and probation for 15 years on the conditions that appellant (1) remain law-abiding and enter and successfully complete treatment for sexual offenders and (2) serve one year under Huber Law in the Anoka County jail.

In 1998, appellant was charged with several counts of indecent exposure.  The district court ordered him to enroll in a treatment program.  In January 1999, appellant enrolled himself in Alpha Human Services, a treatment program for sex offenders.  In January 2000, Alpha terminated appellant from its program because of inappropriate sexual behavior with women visitors. 

The state petitioned to revoke appellant's probation.  Because the district court found that appellant was not amenable to probation or treatment, it revoked his probation and executed his sentences, giving him 217 days of jail credit.  The district court refused appellant's request that he receive a one-day credit for each day served in custody under Huber Law and a one-day credit for each day spent in the Alpha Human Services program.  This appeal followed.  

D E C I S I O N

When imposing a sentence, the district court must assure that the record accurately reflects all time spent in custody related to the offense or behavioral incident for which the sentence is imposed.  Minn. R. Crim. P. 27.03, subd. 4(B).  "The granting of jail credit is not discretionary with the [district] court."  State v. Parr, 414 N.W.2d 776, 778 (Minn. App. 1987) (citation omitted), review denied (Minn. Jan. 15, 1988).  Appellant challenges the calculation of his jail credit on two separate grounds. 

I.          Huber Law

First, appellant contends that he is entitled to the sentencing rule in effect at the time of his sentencing rather than at the time of his offenses.  In 1990-92, when appellant committed the offenses for which he pleaded guilty in 1993, the sentencing guidelines provided that

[t]ime spent in confinement under Huber Law (Minn. Stat. § 631.425) shall be awarded at the rate of twelve hours for each 24 hour period. 

Minn. Sent. Guidelines III.C (1990 & 1991 & 1992).  In 2000, when appellant was sentenced, the sentencing guidelines provided that

[j]ail credit shall be awarded at the rate of one day for each day served for time spent in confinement under Huber Law (Minn. Stat. § 631.425). 

Minn. Sent. Guidelines III.C.4 (2000).  Modifications to the sentencing guidelines "‘will be applied to offenders whose date of offense is on or after the specified modification effective date.'"  State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995) (quoting Minn. Sent. Guidelines III.F), review denied (Minn. July 20, 1995).  Appellant argues that he is exempt from this rule because Minn. Sent. Guidelines III.F also provides:

Modifications to the Commentary that relate to clarifications of existing policy will be applied to offenders sentenced on or after the specified effective date.

Appellant relies on this provision to argue that the sentencing guidelines in effect at the time of his offenses should not apply to him.  But this change in the sentencing guidelines was neither a modification of the commentary nor a clarification of existing policy.  Accordingly, the district court did not err in using the guidelines in effect at the time of appellant's offense.

II.        Sex Offender Treatment Program

Second, appellant argues that he should have been given jail credit for the 372 days that he spent at the Alpha Human Services treatment program.  Minn. Sent. Guidelines cmt. III.C.04 provides:

Credit 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. 

            Appellant relies on State v. Weber, 470 N.W.2d 112 (Minn. 1991) to argue that the time he spent at the Alpha Human Services treatment program was not for treatment but for psychological evaluation.  But Weber is distinguishable because the evaluation there was "in anticipation of a possible revocation."  Id. at 114.    Here, appellant committed himself to the Alpha program because the district court told him:

You [have] got 30 days to get yourself into a treatment program that's acceptable not only to this Court but to the psychological evaluation that was done through Corrections.  If you haven't done it by then, we're going to proceed with a hearing as to whether or not you're amenable to treatment or not.

Although Alpha evaluated appellant, the evaluation was not conducted in anticipation of a possible revocation of appellant's probation but rather to determine whether Alpha would accept appellant into its program. 

The district court properly calculated appellant's jail credit. 

            Affirmed.