Unless There’s Foot Dragging, Award of Jail Credits Is Determined From Date on Which State Has Probable Cause and Sufficient Evidence to Potentially Convict a Defendant.

State v. Clarkinhttp://www.lawlibrary.state.mn.us/archive/supct/1208/OPA101286-0801.pdf, Minn.S.Ct., 8/1/2012.  This is the jail credits case from the court of appeals.  Read here.    Justice Paul Anderson affirms the court of appeals, but does so on different grounds.  The court also upends what was thought to be well settled precedent that says jail credits accrue from the date on which the state had probable cause to have charged out the offense.

In April 2008, Mr. Clarkin gets released from prison after serving a sentence for second degree assault against his former girlfriend.  One of his parole terms was to stay the hell away from girlfriend.  On July 8, 2008, girlfriend discovered that someone had spray painted her house, garage and a motorcycle parked in the driveway ;she believed that Mr. Clarkin was the artist.  On July 11, 2008, girlfriend’s daughter saw Mr. Clarkin in the backyard of girlfriend’s home.  On July 12, 2008, girlfriend’s Dad discovered that someone had spray painted his house, in a style nearly identical to the style of the July 8 spray painting; Dad also believed that Mr. Clarkin was the artist.

On July 13, 2008, police arrested Mr. Clarkin, but not for the spray painting.  Rather, they arrested him for violation of some other term of his parole having nothing to do with painting.  The police found two spray paint cans at the arrest location.  The police did ask him about the spray painting incidents, but Mr. Clarkin denied being the artist responsible for them.  Mr. Clarkin remained in custody through February 19, 2009.

During which the spray painting stopped.  It resumed, however, in April, and continued through November 6, 2009 at the homes of girlfriend, girlfriend’s dad, girlfriend’s brother, and girlfriend’s place of employment.  The police concluded that the spray painting in all of these places was nearly identical with each other and with the spray paintings from back in 2008.  Finally, in November, 2009, the state charged Mr. Clarkin with some of the spray paintings as harassment/stalking charges.  Eventually, the state charged him with all of the spray painting events as well as several OFP violations.  Mr. Clarkin entered a guilty plea to a single count as part of a deal under which he would receive a 35 month executed sentence.  At sentencing Mr. Clarkin said that he was entitled to the 231 days of jail credit from July 13, 2008 until February 19, 2009, because the state had probable cause to charge him then.  The state countered that these days were served for a parole violation, and that the state did not have probable cause to arrest him on the spray painting incidents until his arrest in December 2009.

The court of appeals had said that the sentence was presumptively consecutive so no jail credits regardless of the probable cause issue.  Justice Paul Anderson concludes that because a concurrent sentence would be longer than a consecutive one, a concurrent sentence is the presumptive sentence.  As a result, Mr. Clarkin is not, on this basis, ineligible for the jail credits that he was seeking.

He is, however, ineligible for those credits.  The court rejects adoption of a probable cause test to determine the award of jail credits.  The court is afraid that this will result in premature charging when the state lacks sufficient evidence to obtain a conviction.  Rather, the test is when did the investigation produce a sufficient amount of evidence to charge (probable cause)  and potentially convict a defendant?  Here’s the rule:

We conclude that an award of jail credit is appropriate for time spent in custody after the date when (1) the State has completed its investigation in a manner that does not suggest manipulation by the State, and (2) the State has probable cause and sufficient evidence to prosecute its case against the defendant with a reasonable likelihood of actually convicting the defendant of the offense for which he is charged.

Justices Meyer and G. Barry Anderson would have adopted the probable cause standard but concluded that Mr. Clarkin was not entitled to the jail credits under that standard either.