                        This opinion will be unpublished and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
                                   A14-0068

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                 Michael John Mahle,
                                     Appellant.

                               Filed January 12, 2015
                          Affirmed in part and remanded
                                  Schellhas, Judge

                             Anoka County District Court
                              File No. 02-CR-12-5912

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

Anthony C. Palumbo, Anoka County Attorney, Lisa B. Jones, Brianne Jo Buccicone,
Assistant County Attorneys, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Sharon E. Jacks,
Assistant Public Defenders, St. Paul, Minnesota (for appellant)

      Considered and decided by Schellhas, Presiding Judge; Johnson, Judge; and

Stoneburner, Judge.*




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                        UNPUBLISHED OPINION

SCHELLHAS, Judge

      Appellant argues that the district court erred by imposing a gross misdemeanor

sentence consecutive to a felony sentence and by not announcing jail credit at the time of

sentencing. We affirm in part and remand.

                                        FACTS

      On August 10, 2012, respondent State of Minnesota filed a criminal complaint

against appellant Michael Mahle, who was then in custody in Anoka County, alleging

one count of felony stalking (second or subsequent violations) and one count of felony

stalking (pattern of conduct). On August 12 or 13, 2012, Mahle was released on bond. On

July 30, 2013, while serving an unrelated prison sentence for fourth-degree assault (peace

officer), Mahle filed a detainer regarding the Anoka County charges and subsequently

reached an agreement with the state to resolve the charges.1 The parties agreed to the

following terms: Mahle would plead guilty to an amended count of gross-misdemeanor

stalking; the remaining felony count would be dismissed; and the district court would

sentence Mahle consecutively to the felony sentence he already was serving and would

order two years of probation.



1
  Mahle was serving a 17-month prison sentence imposed on July 15, 2013, in Ramsey
County District Court, as a result of Mahle’s guilty plea to fourth-degree assault of a
peace officer on March 13, 2013. Mahle’s supervised release date was June 9, 2014, and
the expiration date of his sentence was November 28, 2014. At the time of sentencing for
the fourth-degree assault conviction, the district court granted Mahle 16 days of jail
credit.


                                            2
       On September 16, 2013, Mahle pleaded guilty to an amended charge of gross-

misdemeanor stalking, and on October 15, the district court imposed a stayed, one-year

sentence, plus “probation for a period of two years.” The court stated that “[b]oth the

sentence and the probation are to run consecutive to the time that . . . Mahle is currently

serving” and that the sentence and probation would commence on November 29, 2014,

the day following the expiration of Mahle’s felony sentence. Noting that it was staying

“all of [Mahle’s] sentence,” the court declined to announce Mahle’s jail credit and stated

that it would address jail credit if Mahle’s sentence was executed.

       This appeal follows.

                                      DECISION

Consecutive sentencing

       Mahle argues that the district court erred by imposing his gross-misdemeanor

stalking sentence consecutive to his felony assault sentence. He argues that if he had been

convicted of felony stalking, rather than gross-misdemeanor stalking, “his sentence

would have been concurrent with the sentence he was already serving for assault.”

       This court has “express statutory authority to ‘review [a] sentence . . . to determine

whether the sentence is inconsistent with statutory requirements, unreasonable,

inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact

issued by the district court.’” State v. Soto, 855 N.W.2d 303, 312 (Minn. 2014) (quoting

Minn. Stat. § 244.11, subd. 2(b) (2012)). “When reviewing a sentence imposed or stayed

by a district court, [appellate courts] do so under an abuse of discretion standard.” State v.

Franklin, 604 N.W.2d 79, 82 (Minn. 2000). A district court abuses its discretion by


                                              3
imposing a sentence that “is disproportionate to the offense or unfairly exaggerates the

criminality of the defendant’s conduct.” State v. McLaughlin, 725 N.W.2d 703, 715

(Minn. 2007) (quotations omitted). When a sentencing challenge is based on a legal issue,

an appellate court’s review is de novo. State v. DeRosier, 719 N.W.2d 900, 903 (Minn.

2006).

          “The Minnesota Sentencing Guidelines state at the outset that they apply only to

felonies.” State v. Campbell, 814 N.W.2d 1, 5 (Minn. 2012). “[G]ross misdemeanor

sentences are indeterminate with limits set by statute.” Id. at 6 (citing Minn. Stat.

§ 609.02, subds. 3–4 (2010)). “A district court sentencing . . . gross misdemeanor

offenses may impose a sentence anywhere within the statutory range.” Id. Additionally,

                [w]hen a court imposes sentence for a misdemeanor or gross
                misdemeanor offense and specifies that the sentence shall run
                consecutively to any other sentence, the court may order the
                defendant to serve time in custody for the consecutive
                sentence in addition to any time in custody the defendant may
                be serving for any other offense.

Minn. Stat. § 609.15, subd. 1(b) (2012).

          Mahle argues that “a long line of cases from Minnesota’s appellate courts have

indicated that a defendant cannot receive a consecutive non-felony sentence when he

could not have received a consecutive felony sentence, as this exaggerates the criminality

of the offense.” Mahle cites State v. Dulski, a jail-credit case in which the supreme court

stated:

                We believe that it would be unfair to hold, in effect, that a
                defendant who is convicted of a gross misdemeanor may, by
                virtue of the technical nonapplicability of the Sentencing
                Guidelines, have to serve more total time in confinement in a


                                             4
             case such as this than he would have to serve if he were
             convicted of a felony.

363 N.W.2d 307, 310 (Minn. 1985) (emphasis added); see also Dockin v. State, 399

N.W.2d 104, 106–07 (Minn. App. 1987) (determining that when defendant was “subject

to and under” felony sentence at the time she was sentenced for multiple misdemeanor

offenses that could have been aggregated into fewer felony offenses, resulting in no

additional time served, consecutive sentencing for misdemeanor offenses unfairly

exaggerated the criminality of defendant’s conduct and was unfair).

      Mahle also cites State v. Perkins, in which the supreme court cited Dulski and

reversed a 30-month total sentence, which consisted of concurrent 13- and 18-month

felony sentences plus a consecutive 12-month gross-misdemeanor sentence. 554 N.W.2d

80, 80 (Minn. 1996). The supreme court noted that had the defendant been sentenced for

three felonies, his sentence would have been 21 months, and concluded that “it [wa]s

unfair to require [the defendant] to spend more time in custody than he would have to

spend in custody if he had been convicted of a felony rather than a gross misdemeanor.”

Id. But in Perkins, the defendant apparently pleaded guilty to two felonies and one gross

misdemeanor simultaneously without agreeing to consecutive sentencing. The

circumstances surrounding Perkins’s sentences are distinguishable from those

surrounding Mahle’s sentences.

      Mahle also cites State v. Weber, another jail-credit case in which the supreme

court recognized that a defendant whose second offense is less serious than his first

offense, e.g., a gross misdemeanor following a felony, “will often serve more total time



                                           5
than the defendant whose second offense is more serious.” 470 N.W.2d 112, 115 (Minn.

1991). The supreme court stated in dicta, “Imposition of a shorter sentence for the second

offense, then, may result, illogically it seems to us, in the defendant serving more total

time than he would have served had his second offense been more serious and the

sentence for that offense longer.” Id. at 115–16. But the supreme court did not hold that a

district court is not permitted to impose a gross-misdemeanor sentence consecutive to a

felony sentence.

       Despite Mahle’s lack of authority to support his consecutive-sentencing argument,

we address whether the district court’s imposition of a consecutive gross-misdemeanor

sentence to Mahle’s previously imposed felony sentence unfairly exaggerates the

criminality of his offense of stalking J.E.K. We do so by asking whether Mahle would

have been subject to less incarceration if he had been sentenced for felony stalking

instead of gross-misdemeanor stalking. Based on our analysis below, we conclude that, if

Mahle had been sentenced for felony stalking, he would have been subject to a longer

period of incarceration.

       A district court may order permissive consecutive sentences when “the

presumptive disposition for the current offense(s) is commitment,” the “prior felony

sentence . . . has not expired or been discharged,” and both felony convictions are for

crimes listed in Minn. Sent. Guidelines 6 (2012). Minn. Sent. Guidelines 2.F.2.a.(1)

(2012). Stalking (second or subsequent violations), stalking (pattern of conduct), and

fourth-degree assault are listed in Minn. Sent. Guidelines 6. Mahle argues that both

counts of felony stalking “call for a presumptive stayed sentence under the Guidelines


                                            6
when using a criminal history score . . . of zero.” Mahle’s argument is based on the

incorrect premise that we apply a criminal-history score of zero to determine the

presumptive disposition of his sentence. “[A] criminal history score should be reduced

only for purposes of determining the presumptive duration of the consecutive sentence.”

State v. Holmes, 719 N.W.2d 904, 908 n.8 (Minn. 2006). Mahle’s criminal-history score

should be used to determine the presumptive disposition of the sentence. See State v.

Rannow, 703 N.W.2d 575, 578–79 & n.3 (Minn. App. 2005) (applying defendant’s

criminal-history score to determine presumptive disposition of sentences and whether

consecutive sentencing was permissive).

       Based on a footnote in Mahle’s reply brief, we assume that Mahle’s criminal-

history score was five at the time he committed the stalking offense. Felony stalking in

violation of Minn. Stat. § 609.749, subdivision 4(a) (2012) (second or subsequent

violations) is a severity-level-four offense. Minn. Sent. Guidelines 5.B (2012). With a

criminal-history score of five and a severity level of four, the presumptive disposition for

Mahle’s hypothetical felony stalking sentence is commitment. See Minn. Sent.

Guidelines 4.A (2012). Accordingly, Mahle’s sentence, had he pleaded guilty to felony

stalking, would have been permissively consecutive. See Minn. Sent. Guidelines

2.F.2.a.(1). If Mahle had been sentenced for felony stalking consecutive to his felony

assault sentence, the sentencing court would have been required to use a criminal-history

score of zero, resulting in a presumptive sentence of 12 months and 1 day executed. See

Minn. Sent. Guidelines 2.F.2.a (2012) (“For each felony offense sentenced consecutively

to another felony offense(s), the court must use a Criminal History Score of 0 . . . .”),


                                             7
4.A; see also State v. Watkins, 650 N.W.2d 738, 742 (Minn. App. 2002) (“[T]he

presumptive disposition for a permissive consecutive sentence is always an executed

sentence.”). Adding a 12-month-and-1-day felony stalking sentence to Mahle’s 17-month

felony assault sentence would result in a total sentence of 29 months and 1 day. Mahle’s

sentence therefore would have been one day longer had he been sentenced for felony

stalking instead of gross-misdemeanor stalking.

      And had the district court chosen to sentence Mahle concurrently for felony

stalking, using a criminal-history score of five and a severity level of four, his

presumptive guidelines sentence would have been commitment for 23 to 32 months.2 See

Minn. Sent. Guidelines 4.A. A concurrent sentence for felony stalking therefore could

have extended beyond the combined 29 months of his current sentence. See State v.

Petersen, 305 Minn. 478, 481, 235 N.W.2d 801, 803 (Minn. 1975) (“Under two or more

concurrent sentences, the terms are served simultaneously and a prisoner is entitled to

discharge at the expiration of the longest term specified.” (emphasis added)). We

conclude that the district court did not err by sentencing Mahle under the plea agreement

to a term of one year for gross-misdemeanor stalking consecutive to his felony sentence.




2
  We note that our hypothetical consecutive and concurrent sentencing scenarios for
felony stalking only assume a sentence under section 609.749, subdivision 4(a), which is
a severity-level-four offense. Minn. Sent. Guidelines 5.B. But Mahle was also charged
under Minn. Stat. § 609.749, subdivision 5(a) (2012) (pattern of conduct), which is a
severity-level-five offense. Minn. Sent. Guidelines 5.B. If Mahle were sentenced under
that subdivision, our hypotheticals would be all the more consistent with our conclusion.

                                            8
Delayed commencement of consecutive gross-misdemeanor sentence

       The district court specifically delayed the commencement of Mahle’s gross-

misdemeanor sentence to November 29, 2014, the day after the expiration of Mahle’s

felony assault sentence. Citing Minn. Sent. Guidelines cmt. 2.F.02 for the proposition that

a defendant will begin to serve his second sentence at the end of the “incarceration

period” of his first sentence, Mahle argues that the “district court should not be able to

delay the start date of [his] gross misdemeanor sentence when it would have been unable

to do so if both sentences had been felonies.” He argues that this is “a[n] additional and

logical extension of the Dulski and Perkins line of cases” and maintains that “[his] gross

misdemeanor sentence must start running no later than the date he was released from

prison [on his felony assault sentence], on June 9, 2014.” We disagree.

       The sentencing guidelines do not apply to gross misdemeanors. See Campbell, 814

N.W.2d at 5. Moreover, comments to the sentencing guidelines, to which Mahle cites,

“are advisory and are not binding on the courts.” State v. Jones, 848 N.W.2d 528, 537

(Minn. 2014). And even if the sentencing guidelines were applicable to gross-

misdemeanor sentences, the guidelines provide, “When the court orders sentences to be

‘consecutive,’ the court is ordering that multiple sentences be served one after the other.”

Minn. Sent. Guidelines 1.B.3 (2012) (emphasis added). “A consecutive sentence is one

which does not begin to run until the expiration of the term of the prior sentence.” Jones,

848 N.W.2d at 537 n.5 (quotation omitted). An “‘[e]xecuted sentence’ means the total

period of time for which an inmate is committed to the custody of the commissioner of

corrections.” Minn. Stat. § 244.01, subd. 9 (2012). The sentence “includes both the term


                                             9
of imprisonment and the term of supervised release.” State ex. rel. Peterson v. Fabian,

784 N.W.2d 843, 846 (Minn. App. 2010); see also Minn. Stat. § 244.101, subd. 1 (2012)

(describing components of executed sentence).

       We reject Mahle’s assertion that his argument is supported by a “logical extension

of the Dulski and Perkins line of cases.” Dulski and Perkins only support the proposition

that Mahle’s consecutive gross-misdemeanor sentence would have been unfair if it had

subjected him to a longer period of confinement than a felony sentence. See Perkins, 554

N.W.2d at 80; Dulski, 363 N.W.2d at 310. Here, the commencement date for Mahle’s

consecutive gross-misdemeanor sentence did not subject Mahle to a longer period of

confinement than he could have served had the court sentenced him for felony stalking.

We conclude that the district court did not abuse its discretion by imposing Mahle’s

gross-misdemeanor stalking sentence consecutive to his felony assault sentence and

ordering that it commence at the expiration of his felony sentence.

Jail credit

       In connection with his jail credit, Mahle asked the district court during his

sentencing hearing, “What if I want to execute that sentence . . . ? I mean, I don’t know

what I’m executing.” The district court declined to announce Mahle’s jail credit, stating

that it would address jail credit if Mahle’s sentence was executed. Mahle seeks a remand

to the district court with an order that the court announce his jail credit so that he can

make a decision about whether to execute his stayed gross-misdemeanor sentence.

       “The [district] court does not have discretion in awarding jail credit.” State v.

Clarkin, 817 N.W.2d 678, 687 (Minn. 2012). “A district court’s decision whether to


                                            10
award credit is a mixed question of fact and law; the court must determine the

circumstances of the custody the defendant seeks credit for, and then apply the rules to

those circumstances.” State v. Johnson, 744 N.W.2d 376, 379 (Minn. 2008). “We review

the factual findings underlying jail-credit determinations for clear error, but we review

questions of law de novo.” Clarkin, 817 N.W.2d at 687. “The interpretation of a

procedural rule is subject to de novo review.” Johnson v. State, 801 N.W.2d 173, 176

(Minn. 2011).

       “[A] defendant is entitled to a credit from his term of imprisonment for the number

of days spent in custody in connection with the offense or behavioral incident being

sentenced.” Townsend v. State, 834 N.W.2d 736, 740 (Minn. 2013) (quotation omitted).

Furthermore,

               [w]hen pronouncing sentence the court must . . . [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. “‘Must’ is mandatory.” Greene v. Comm’r of Minn.

Dep’t of Human Servs., 755 N.W.2d 713, 721 (Minn. 2008) (quotation omitted); see also

Minn. Stat. § 645.44, subd. 15a (2014). The district court therefore was required to

announce Mahle’s jail credit and deduct that time from his sentence and erred by

declining to do so.

       Citing Minn. Stat. § 609.145, subd. 3, the state argues that the district court was

not required to announce jail credit because the court did not commit Mahle to the



                                           11
commissioner and that “[d]istrict courts only need to announce jail credit when they are

imposing a term of imprisonment.” Minnesota Statutes section 609.145, subdivision 3

(2012), provides:

              When a person is to be committed to the commissioner, the
              person’s probation officer must provide to the court, prior to
              the sentencing hearing, the amount of time the person has in
              credit for prior imprisonment. The court must pronounce
              credit for prior imprisonment at the time of sentencing.

Although the mandate of section 609.145, subdivision 3, may be limited, the state’s

argument is unpersuasive. The mandate of rule 27.03, subdivision 4, is clear and broad.

The rule requires that the court announce jail credit “[w]hen pronouncing sentence” in all

cases. See Minn. R. Crim. P. 27.03, subd. 4.

       We agree that Mahle has the right to know the jail credit that he will be given to

enable him to decide whether to execute his sentence. The state makes arguments, as does

Mahle, regarding the amount of jail credit to which Mahle may be entitled. We decline to

address those arguments, leaving the matter to be determined by the district court.

       Affirmed in part and remanded.




                                            12
