Paul Thomas Johnson, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.

 STATE OF MINNESOTA
 IN COURT OF APPEALS
 C8-99-793

State of Minnesota,
Respondent,

vs.

Derek Allen Goode,
Appellant.

 Filed October 5, 1999
 Appeal dismissed
Crippen, Judge
Concurring in part, dissenting in part, Short, Judge

Ramsey County District Court
File No. K3962450

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

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, Suite 315, 50 Kellogg Boulevard West, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Crippen, Presiding Judge, Short, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

 CRIPPEN, Judge

Appellant challenges the trial court's determination that he is not eligible to receive jail credit for time served at Camp Ripley, asserting that a statute permitting this result violates the Equal Protection guarantees of both the United States and Minnesota Constitutions. Because appellant has waived his right to review of this contention and has presented no other issues, we dismiss the appeal.

 FACTS

Appellant Derek Goode was found guilty of possessing cocaine with intent to distribute, given a 26-month stayed sentence, and placed on probation for five years. Subsequently, after conditions of the stay were violated, the trial court judge continued appellant's probation but ordered that appellant serve 30 days in the workhouse and 60 days at Camp Ripley. At this hearing, the judge told appellant, "If you are unsuccessful with the Ripley program * * * you will go to the Commissioner of Corrections for the complete sentence to serve."

Due to disciplinary problems, appellant was discharged from Camp Ripley after serving only 30 days. At the conclusion of a contested probation violation hearing focusing on appellant's failure to serve 60 days at Camp Ripley, the trial court ordered execution of appellant's 26-month sentence. In addition to jail credit given to appellant for 199 days spent in custody, he requested credit for the time at Camp Ripley.

In response to this request to the trial court, the county attorney argued that credit could only be given for a "workhouse" or a "jail" under the "statutes and guidelines." Under the sentencing guidelines, credit for "time spent in confinement as a condition of a stayed sentence" covers time spent in "jails, workhouses, and regional correctional facilities." Minn. Sent. Guidelines III.C.3. The guidelines definition of confinement for which credit is given constitutes a limitation on the general rule of sentence imposition, which provides that inmates will receive credit for "time spent in custody as a condition of probation from a prior stay of imposition or execution of sentence." Minn. R. Crim. P. 27.03, subd. 4(B).

  The court denied appellant's motion, explaining merely that the time was served as a "condition of probation," by thus referring to the rule and guidelines on confinement as a "condition of a stayed sentence." The trial court evidently did not agree with appellant that time at Camp Ripley constituted time spent in a jail or workhouse. Counsel for appellant then made a record of his view that the Camp Ripley time was "similar to what the workhouse is," with loss of liberty away from home.

On appeal, appellant has not challenged the trial court's application of the sentencing guidelines provision on credit for time spent. Instead, he challenges the constitutionality of a statute, not discussed in trial court proceedings, that specifically prohibits jail credit for time served at Camp Ripley. Minn. Stat. § 241.277, subd. 5 (1998). On March 25, 1999, the Governor signed S.F. 2221, which repealed Minn. Stat. § 241.277, required that all offenders be transferred from Camp Ripley to local facilities by June 30, 1999, and closed the camp's adult work program.

 D E C I S I O N

Appellant claims that the trial court denied his request for jail credit "because credit for time served at Camp Ripley is prohibited under Minn. Stat. § 241.277, subd. 5." But it is evident in the record that the parties did not raise Minnesota Statute § 241.277, subd. 5 (1998), before the trial court, and appellant did not present an equal protection argument in the trial court proceedings. The trial court did not mention the statute and did not rule on its constitutionality.

At oral argument, appellant contended that the county attorney introduced Minn. Stat. § 241.277, subd. 5, by referring to "statutes and guidelines" mandating that jail credit be granted only for time spent in the workhouse and jail. To the contrary, as stated earlier, the prosecutor's remarks specifically address the jail-or-workhouse standard that is found only in Minnesota Sentencing Guidelines, III.C.3. Appellant has not argued, even on appeal, that the guidelines provision is unconstitutional.

Because appellant did not raise either Minn. Stat. § 241.277, subd. 5, or its constitutionality before the trial court, this court need not address appellant's argument on appeal; issues first raised on appeal and not presented to the trial court may not be considered on appeal. State v. Merrill, 274 N.W.2d 99, 109 (Minn. 1978). This is so even where constitutional issues are involved. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).

Were we to consider review of appellant's contentions in the interests of justice, under Minn. R. Civ. App. P. 103.04, his arguments could not be decided on the present record, which is a consequence of the fact that the statute was not raised or considered in the trial court proceedings. Any comparison of appellant's circumstances with those of other inmates, male or female, requires that we scrutinize the manner in which the substance of the statute relates to its objectives. See Craig v. Boren, 429 U.S. 190, 197, 97 S. Ct. 451, 457 (1976) (for quasi-suspect gender classification, requiring determination if differing treatment is "substantially related" to achievement of "important" government objectives); State v. Russell, 477 N.W.2d 886, 888-89 (Minn. 1991) (when no suspect class is involved, requiring rational basis test). Appellant has neither offered evidence suggesting an improper classification of inmates nor shown authority for shifting the burden in that regard to the state in circumstances where the state has been deprived of the opportunity to develop a record in the trial court. Westling v. County of Mille Lacs, 581 N.W.2d 815, 819 (Minn. 1998) (providing generally that appellant has the burden of establishing beyond a reasonable doubt that the statute violates a constitutional right); cf., Russell, 477 N.W.2d at 889 (demanding that state support for classification be more than "anecdotal").

 Appeal dismissed.

 SHORT, Judge (concurring in part, dissenting in part)

I concur that Goode waived his challenge to the Camp Ripley program as a gender-based classification by failing to raise the issue before the trial court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating issues not raised in trial court will not be decided on appeal). Moreover, because the program has been discontinued, the issue is moot.

I disagree, however, with the majority's conclusion that Goode also waived his challenge to the denial of jail credit for time spent at Camp Ripley. The issue of jail credit did not arise until the end of the trial court's pronouncement of its revocation of Goode's probation. At that time, the record showed defense counsel attempted to challenge the trial court's denial of jail credit by arguing Camp Ripley should not be treated differently from other types of incarceration. The issue also is not mooted by the discontinuance of the program because Goode continues to suffer the loss of jail credit. Accordingly, I would reach this issue and hold the denial of jail credit for time spent at Camp Ripley is a denial of equal protection under the state constitution.

For a classification to withstand scrutiny under the Minnesota Constitution, there must be

a reasonable connection between the actual, and not just the theoretical, effect of the challenged classification and the statutory goals.

State v. Russell, 477 N.W.2d 886, 889 (Minn. 1991). Under this standard, Minn. Stat. § 241.277, subd. 5 (1998), unreasonably classifies offenders sentenced to the Camp Ripley work program as "not considered incarcerated" for purposes of awarding good time or jail credit. See Minn. Sent. Guidelines cmt. III.C.04 (awarding jail credit for time spent "in custody" in local jail or workhouse as condition of probation).

There is little doubt that Goode was "in custody" at Camp Ripley. He was housed in a government facility with other offenders and, like prison inmates, needed an administrative furlough for family emergencies or serious medical needs. Minn. Stat. § 241.277, subd. 6a (1998); cf. Minn. Stat. § 244.07 (1998) (requiring prison inmate to receive furlough for family needs or health care). The program also required Goode to perform eight hours of assigned labor every day, to attend evening classes, and to obey disciplinary rules or face sanctions that included the extension of time in the program. Minn. Stat. § 241.277, subds. 3, 6, 8 (1998); cf. State v. Wilkinson, 539 N.W.2d 249, 252 (Minn. App. 1995) (holding offender on electronic home monitoring, allowed to reside in his own home and to do work of his own choice, was not "in custody" and not entitled to jail credit).

Despite his "in custody" status, Goode did not receive jail credit under Minn. Sent. Guidelines III.C. But the goal of the Camp Ripley Program apparently was to provide an alternative correctional program, with work and educational components, in the hope of reducing the recidivism rate for certain property offenders. Although the denial of jail credit may theoretically be connected to preventing repeat offenses, the classification's actual effect on the achievement of this goal is minimal or non-existent. See Russell, 477 N.W.2d at 889 (requiring reasonable connection between actual effect of classification and statutory goal). Instead, the program's structure and mission furthered this goal, and the statute's jail-credit classification merely created an inequity among offenders. See Wilkinson, 539 N.W.2d at 252 (noting that jail credit is allowed to prevent inequities in detention time among poor and racial minorities).

Because the denial of jail credit is not rationally related to the goal of providing a new, alternative correctional program to reduce recidivism, I would reverse the trial court's denial of jail credit and find that part of Minn. Stat. § 241.277, subd. 5, to be unconstitutional.