State of Minnesota, Respondent, vs. Richard Joseph Jacobson, Appellant.

State of Minnesota, Respondent, vs. Richard Joseph Jacobson, Appellant. A06-2003, Court of Appeals Unpublished Decision, November 27, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2003

 

State of Minnesota,
Respondent,
 
vs.
 
Richard Joseph Jacobson,
Appellant.

 

Filed November 27, 2007

Affirmed

Minge, Judge

 

Mille Lacs County District Court

File No. T2-04-3303

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Jan Kolb, Mille Lacs County Attorney, Mark J. Herzing, Assistant County Attorney, Courthouse Square, 525 Second Street Southeast, Milaca, MN 56353 (for respondent)

 

Randal D.B. Tigue, Randall Tigue Law Office, P.A., 3960 Minnehaha Avenue South, Minneapolis, MN 55408 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Willis, Judge; and Minge, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant claims that in revoking his probation for a DWI conviction, the district court improperly failed to give him credit for jail time served in Wisconsin for the Wisconsin DWI offense that constituted his probation violation.  Because the Minnesota and Wisconsin DWI's were separate offenses, and because Minnesota does not give credit for jail time served in other states for separate out-of-state offenses, we affirm.

FACTS

 

            Appellant Richard Jacobson was convicted of two DWI offenses: one in Minnesota, the second in Wisconsin.  The Minnesota offense occurred in October 2004.  Jacobson pleaded guilty, and on July 7, 2005, a Minnesota court imposed a 90-day stayed sentence with two years probation.  Jacobson's Wisconsin offense occurred on August 5, 2005, less than a month after he was placed on probation in Minnesota.  On March 30, 2006, a Wisconsin court sentenced Jacobson.  Pursuant to that sentence, he served approximately 90 days in jail in Wisconsin and was released in September 2006.

            Minnesota authorities were not ignorant of the Wisconsin offense.  On April 18, 2006, the Mille Lacs County district court issued a summons and warrant for appellant to appear at a probation-revocation hearing.  Although we are not given a reason for the delay, that Minnesota hearing was not held until October 11, 2006.  At the hearing, appellant admitted that he violated the terms of his Minnesota probation, but argued that, if probation were revoked, he was entitled to credit for time spent in jail in Wisconsin and should not face any additional jail time in Minnesota.  In the alternative, appellant contended that his Minnesota sentence should run concurrently with and retroactively to the already-completed Wisconsin sentence.  Finally, appellant cited injuries from which he was recovering and asked the district court to allow him to serve any executed sentence through home-monitoring. 

The Minnesota district court denied appellant credit for jail time served in Wisconsin and executed the stayed 90-day sentence.  The district court reserved the question of whether home-monitoring would be appropriate until incarceration commenced and the ability of the jail to accommodate appellant's injuries could be better determined.  This appeal follows.

D E C I S I O N

 

I.

            The first issue is whether the Minnesota district court erred in denying appellant jail credit for time served in Wisconsin.  Appellant contends that because the Wisconsin DWI triggered revocation of appellant's Minnesota probation, the Wisconsin offense should be considered part of the offense for which the Minnesota sentence was imposed.  Furthermore, appellant argues that this court's decision in State v. Fritzke, 521 N.W.2d 859 (Minn. App. 1994), supports his claim for jail credit.

Appellate courts generally uphold the sentencing determinations of district courts unless there is a clear abuse of discretion.  State v. Thomas, 590 N.W.2d 755, 759 (Minn. 1999).  Appellate courts review a sentence to determine whether it is "inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact . . . ."  Minn. Stat. § 244.11, subd. 2(b) (2006).  When a criminal sentence is imposed, the court must "assure that the record accurately reflects all time spent in custody in connection with the offense or behavioral incident for which the sentence is imposed."  Minn. R. Crim. P. 27.03, subd. 4(B).  A defendant has the burden of establishing entitlement to jail credit for any specific period of time.  State v. Willis, 376 N.W.2d 427, 429 n.2 (Minn. 1985).  When there are two or more crimes involved, broad consideration of the crimes, sentences, and jail time is required to determine what jail time is attributable to which offense or offenses.  See State v. Patricelli, 357 N.W.2d 89, 93-94 (Minn. 1984).  To the extent that credit for jail time is mandated by the criminal rules, granting credit is not discretionary with the district court.  State v. Parr, 414 N.W.2d 776, 778 (Minn. App. 1987).  The test for time spent in the custody of Minnesota jurisdictions focuses on principles of fairness and equity, examining whether the denial of credit would result in a de facto consecutive sentence or place too much control over the total time a defendant serves in the hands of prosecutors.  State v. Hagdu, 681 N.W.2d 30, 33 (Minn. App. 2004); State v. Arend, 648 N.W.2d 746, 748 (Minn. App. 2002).

A.      Time Served in Wisconsin

 

In determining credit for jail time served, we distinguish between confinement pursuant to a Minnesota sentence and time served in another state pursuant to a sentence imposed by the courts of that state.  Hagdu, 681 N.W.2d at 33.  In a multistate situation, Minnesota courts only give credit for the time the defendant was incarcerated "solely in connection" with a Minnesota offense.  State v. Akbar,419 N.W.2d 648, 650 (Minn. App. 1988).  If part of the time served in another state was in connection with an offense in that state, the defendant is not entitled to credit for that time.  State v. Brown, 348 N.W.2d 743, 748 (Minn. 1984); State v. Bentley, 329 N.W.2d 39, 40 (Minn. 1983). 

Appellant Jacobson was arrested for the Wisconsin offense ten months after his arrest for the Minnesota violation and nearly one month after his Minnesota sentencing.  Jacobson cites no legal basis for his contention that the Wisconsin DWI should be considered "part of the offense or behavioral incident" for which the Minnesota sentence was imposed.  Just because the Wisconsin DWI triggers the Minnesota probation violation, the two offenses are not joined. 

To receive credit, Jacobson must show that any time served in Wisconsin was solely in connection with the Minnesota DWI offense.  Because there is no such showing in this record, we conclude that Jacobson has not met that burden and is not entitled to credit for the Wisconsin time.  

B.      Prosecutorial Manipulation

Jacobson contends that to prevent prosecutorial manipulation, he is entitled to jail credit for any time spent in custody in Wisconsin after his August 5, 2005, Wisconsin arrest.  He emphasizes that the Minnesota district court acquired probable cause to revoke his probation at the time of that Wisconsin arrest or, in the alternative, by April 18, 2006, the date on which the Minnesota district court issued a summons and warrant for him to appear at his revocation hearing.  Jacobson claims that the timing of Minnesota's probation-revocation process was scheduled after completion of the Wisconsin process to extend the time he is incarcerated in Minnesota. 

The award of jail credit should not turn on events subject to manipulation by the prosecutor.  State v. Goar, 453 N.W.2d 28, 30 (Minn. 1990).  See also Fritzke, 521 N.W.2d at 861.  In Fritzke, the defendant claimed jail credit for time served in Ramsey County before a Dakota County complaint was filed.  Id. at 860-61.  Although we noted in Fritzke that prosecutors have wide discretion in determining when to file a complaint, we concluded that the accused must be given jail credit for time spent in custody following arrest beginning on the date that the prosecution acquires probable cause to charge the defendant with the offense for which he or she was arrested.  Id. at 861-62.

Jacobson is correct that the Minnesota and Wisconsin prosecutors had the opportunity to decide when to bring charges, when to seek an arrest warrant, and at least to influence the setting of dates for the sentencing hearing and commencement of jail service.  However, regardless of when a Minnesota prosecutor chooses to file a complaint, moves to revoke probation, or places a "hold" on a defendant incarcerated in another state, a defendant is not entitled to jail credit in Minnesota for any time served in the other state related to an offense in that state.  Brown, 348 N.W.2d at 748.  Thus, assuming that Mille Lacs County had probable cause to revoke Jacobson's probation while he was incarcerated in Wisconsin and that the county attorney delayed in requesting hearings, Jacobson would still have to show that part of the time served in Wisconsin was "solely in connection" with the Minnesota offense in order to receive credit.  Akbar,419 N.W.2d at 650.   

Because Jacobson did not allege that any of his Wisconsin sentence was served solely in connection with the Minnesota offense, he did not meet his burden of showing entitlement to jail credit for any specific period of time served in Wisconsin, and the problem of prosecutorial manipulation addressed in Fritzke is not relevant. 

II.

The second issue is whether appellant Jacobson was entitled to have the formerly stayed Minnesota sentence, which was executed as a result of the Wisconsin offense, run retroactively and concurrently with the already-completed Wisconsin sentence.  Jacobson cites State v. Klang, 320 N.W.2d 718 (Minn. 1982) (applying Minn. Stat. § 609.14, subd. 3(2)), for this contention.  That statute continues to provide:  "If any of such grounds [for revocation of a stayed sentence] are found to exist the court may . . . if sentence was previously imposed and execution thereof stayed, continue such stay and place the defendant on probation or . . . order execution of the sentence previously imposed."  Minn. Stat. § 609.14, subd. 3(2) (2006).  In Klang, the Minnesota Supreme Court held that in revoking probation and executing the sentence, the district court had no authority to make the sentence run consecutively; it had to run concurrently.  Klang, 320 N.W.2d at 719.

Unlike the situation presented in Klang, the district court in this case did not order a previously stayed sentence for a prior offense to run consecutively to a newly imposed sentence for a later offense in violation of the statute.  Here, the Minnesota district court was dealing with only one sentence.  By the date of the revocation hearing, Jacobson had finished serving a Wisconsin sentence for a separate Wisconsin DWI.  At the hearing, Jacobson admitted to violating the terms of his Minnesota probation; this gave the district court a clear basis for revocation.  In this setting, we determine that the district court did not abuse its discretion in executing the previously stayed sentence.  In any event, we note that Jacobson's claim for a retroactive, concurrent sentence is simply a restated request for jail credit for time served in Wisconsin as a result of a Wisconsin offense an argument we have already rejected.

III.

            Appellant contends that there is no rational basis for distinguishing between time served in foreign jurisdictions versus jail time served in Minnesota and, as a result, appellant argues that his equal-protection rights have been violated.  This argument was not made to the district court and is raised only in skeletal fashion in this appeal.  Because this court will generally not consider matters not argued and considered in the court below, we decline to reach appellant's equal-protection argument in this appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

            Affirmed.

 

Dated: