Jail Credits Denied, For Now, on Purported (But Not Really a) Consecutive Sentence.

State v. Clarkin, Minn.Ct.App., 10/3/2011, petition for further review, GRANTED, 12/21/12.  This is a jail credits appeal.  Mr. Clarkin did time in prison for a second degree assault conviction.  After his release he failed to comply with various of his parole conditions so in May 2008 a warrant issued for his arrest.  Authorities arrested him on the warrant on July 13, 2008.  Between May and July, Mr. Clarkin also allegedly spray painted graffiti on the outside of the homes of the assault victim and her father.  Mr. Clarkin denied the spray painting allegations; he was not charged but he did return to prison.

When he got out this second time, there were, curiously, eleven more similar graffiti incidents.  Police investigated and found an eye witness and a video of Mr. Clarkin spray painting.  The two groups of spray painting were the basis of a felony harassment/stalking charge, and a charge of violating an OFP.  Authorities arrested him in December, 2009.  Mr. Clarkin pleaded guilty to the harassment/stalking charge which was based on a July 5, 2008 graffiti incident.  He got a thirty-five month sentence, against which he received jail credits only from the December 2009 arrest.  By the time the trial court sentenced him, however, his assault conviction expired.

Mr. Clarkin thought he was entitled to jail credits back to July 13, 2008, arguing that authorities had probable cause to have charged him with the first two alleged graffiti incidents.  See State v. Fritzke, 521 N.W.2d 859 (Minn.Ct.App. 1994).  The trial court eventually held that the authorities did not have probable cause back in July 2008 and so Mr. Clarkin was not entitled to those jail credits.

The court of appeals saw this conundrum differently.  They could care less about probable cause.  Rather, they honed in on the Guidelines, which says that “Consecutive sentences are presumptive when the conviction is for a crime committed by . . . an offender on supervised release . . . .” Minn. Sent. Guidelines II.F.1 (2010).”  (Now, Mr. Clarkin had pointed out – something that the court of appeals not once mentions – that his assault conviction had expired so that this new sentence could be neither consecutive nor concurrent to that expired one.) The court of appeals said that because Mr. Clarkin was on supervised release when he engaged in the offense conduct (at least of conviction) – the July 8 spray painting – giving him jail credits while he was also serving (again) his assault sentence would be a de facto departure from the Guidelines.  He doesn’t get those jail credits.

The Supreme Court has granted further review.