                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1965

                             Simeon Leon Brooks, petitioner,
                                      Appellant,

                                           vs.

                                   State of Minnesota,
                                      Respondent.

                                  Filed August 1, 2016
                                        Affirmed
                                    Connolly, Judge

                             Hennepin County District Court
                               File No. 27-CR-10-44377


Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)



         Considered and decided by Kirk, Presiding Judge; Connolly, Judge; and Larkin,

Judge.
                         UNPUBLISHED OPINION

CONNOLLY, Judge

       On appeal from the district court’s order denying his request for an award of

additional custody credit, appellant argues that because the court ordered that appellant

serve his Minnesota sentence concurrent with the Iowa sentence, he is entitled to custody

credit for his incarceration in Iowa prior to the execution of his Minnesota stayed sentence.

We affirm.

                                           FACTS

       On September 22, 2010, appellant Simeon Leon Brooks was charged with two

counts of felony driving while intoxicated (DWI), stemming from an early morning

incident occurring on September 5, 2010. On October 20, 2010, appellant pleaded guilty

to one count as part of a plea agreement. On November 19, 2010, appellant was sentenced

to 48 months in prison, stayed for a period of five years, under the conditions that appellant:

(1) serve 365 days at the workhouse with credit for 63 days; (2) not use any alcohol or

illegal or nonprescribed drugs while on probation; (3) submit himself to random testing at

the discretion of probation; and (4) submit himself to a chemical-health assessment and

follow the specific recommendations of the assessment.

       On October 2, 2013, appellant was convicted of consumption of alcohol in a public

place and on February 3, 2014, appellant was convicted in Iowa for operating a vehicle

while intoxicated and driving while barred. Appellant was sentenced to five years in an

Iowa prison. On November 5, 2014, appellant appeared remotely via ITV at his Minnesota

probation-revocation hearing requesting the sentence of 48 months, imposed at the


                                              2
November 19, 2010 hearing, be executed and that appellant receive custody credit for the

242 days accrued while appellant was in prison in Minnesota prior to his sentencing in

2010. The district court granted appellant’s request to execute the sentence with a credit

of 242 days spent in custody. The district court said, “[o]bviously you’re in custody now

in Iowa so the time will . . . be eaten up with all the time you’re doing in Iowa.” Following

the hearing, the court issued an order stating that appellant is to be committed to the

St. Cloud Correctional Facility for 48 months with 242 days credit for time served. The

order also said the sentence is to be served “[c]oncurrent with case number Clay County,

Iowa Case Number 03211 OWCR016600.”

       On September 29, 2015, appellant made a motion under Minn. R. Crim. P. 27.03,

subd. 9, to correct his sentence to request additional credit of 276 days. Appellant argued

that he should be given credit for the time served in custody in Iowa prior to the execution

of his Minnesota sentence because the district court ordered the sentence to run concurrent

with his Iowa sentence. The district court denied the motion stating:

                      In running the Minnesota sentence concurrent with the
              Iowa sentence, the [c]ourt did not intend to retroactively apply
              [appellant’s] Iowa credit to the Minnesota sentence. In fact,
              based on the language of the [Minn. R. Crim. P.] concerning
              jail credit, the [c]ourt could not have awarded those days of
              credit even if it had wanted to. The [c]ourt lacks discretion to
              award days of credit a defendant has not earned. Under a plain
              reading of the law, [appellant] did not earn the requested 276
              additional days of credit towards his Minnesota sentence
              because the time served in Iowa was not in connection with the
              Minnesota offense.




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                                       DECISION

       “Awards of jail credit are governed by principles of fairness and equity and must be

determined on a case-by-case basis. A defendant has the burden of establishing that he is

entitled to jail credit for a specific period of time.” State v. Arend, 648 N.W.2d 746, 748

(Minn. App. 2002) (quotation omitted). “The decision whether to award credit is a mixed

question of fact and law.” State v. Clarkin, 817 N.W.2d 678, 687 (Minn. 2012) (quotation

omitted).   We review the district court’s factual findings concerning the credit the

defendant seeks custody for under the clearly erroneous standard and then apply the rules

of law to those circumstances under the de novo standard. Id.

       “The granting of jail credit is not discretionary with the [district] court.” State v.

Parr, 414 N.W.2d 776, 778 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988).

When a criminal sentence is imposed, the trial court shall “[s]tate the number of days spent

in custody in connection with the offense or behavioral incident being sentenced. That

credit must be deducted from the sentence and term of imprisonment and must include time

spent in custody from a prior stay of imposition or execution of sentence.” Minn. R. Crim.

P. 27.03, subd. 4(B). Jail credit is allowed for time spent in another state only when the

Minnesota offense was the “sole reason” for incarceration in the foreign jurisdiction. Parr,

414 N.W.2d at 779. “If part of the time appellant spent in the out-of-state jail was in

connection with the out-of-state charge, he [is not] entitled to jail credit for that time.” Id.

       Appellant argues that failing to credit time spent in custody for the Iowa offense,

prior to the request for execution of his Minnesota sentence, creates a de facto consecutive

sentence rather than a concurrent sentence. We conclude that this argument fails for two


                                               4
reasons: (1) appellant’s request is merely a request for jail credit for time spent in a foreign

jurisdiction and the Minnesota offense is not the sole reason for his incarceration in Iowa;

and (2) it is not a de facto consecutive sentence.

       Appellant’s claim for additional custody credit is merely a request for time served

in a foreign jurisdiction as a result of a foreign offense. Appellant does not argue that the

sole reason he was incarcerated in Iowa was due to his Minnesota offense. He was

imprisoned in Iowa as a result of crimes committed in Iowa, three years after his conviction

in Minnesota. Appellant is incorrect in stating that “[t]here is no rule that prohibits the

court from exercising its discretion to order that a Minnesota offense be served concurrent

with a foreign sentence, even where the defendant would not otherwise be entitled.” There

is a very clear rule to the contrary: “The granting of jail credit is not discretionary with the

[district] court.” Id. at 778; see also State v. Bentley, 329 N.W.2d 39, 40 (Minn. 1983)

(stating that “defendant is not entitled to credit for time spent in prison in North Dakota

before he was paroled to Minnesota authorities”). The district court does not have

discretion to award jail credit for time spent in prison for an offense that is not solely

connected to the Minnesota offense.

       Appellant also argues that, despite ordering the Minnesota sentence to run

concurrently with the Iowa sentence, the district court’s refusal to credit the time served in

Iowa prison prior to executing the Minnesota sentence results in a de facto consecutive

sentence. See State v. Johnson, 744 N.W.2d 376, 379 (Minn. 2008) (discussing the

potential concern of de facto conversion of a concurrent sentence into a consecutive

sentence as relevant in coming to a decision about custody credit). “[A]nytime a defendant


                                               5
on probation . . . commits a felony and receives a sentence equivalent to or longer than the

previously imposed stayed sentence, the defendant will exercise his right to insist on

execution of the first sentence, thereby insuring that both sentences run concurrently.”

State v. Weber, 470 N.W.2d 112, 115 (Minn. 1991). As soon as appellant received his

sentence that was equivalent to or longer than the imposed stayed Minnesota sentence, he

should have insisted on the execution of his first sentence. Appellant failed to do so for

276 days and fails to provide any reason for the delay. Appellant does not provide evidence

that a delay in scheduling a probation-revocation hearing resulted in a de facto consecutive

sentence as was required in State v. Compton, 340 N.W.2d 358, 360 (Minn. App. 1983)

(awarding 189 days jail credit where a delay in scheduling a probation-revocation hearing

resulted in a de facto consecutive sentence); nor does appellant point to any evidence that

there was an unfair and unjustifiable delay in criminal proceedings as was required by this

court in State v. Bauman, 388 N.W.2d 795, 797 (Minn. App. 1986) (holding that an unfair

and unjustifiable delay in criminal proceedings warranted jail credit for time spent in prison

while waiting for the probation-revocation hearing).

       Because appellant’s Minnesota conviction was not the sole reason for his

imprisonment in Iowa and because there is no de facto consecutive sentence, appellant is

not entitled to any additional credit.

       Affirmed.




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