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.

The State’s Circumstantial Evidence Sufficiently Proved Premeditated Murder

State v. Palmer, Minn.S.Ct., 9/28/2011.  The trial court, sitting without a jury, found Mr. Palmer guilty of premeditated first degree murder, second degree intentional murder, and possession of a firearm by an ineligible person in the shooting death of Ernest Moss.  The court sentenced Mr. Palmer to life without possibility of release on the premeditated murder conviction.

Mr. Palmer’s brother, Da’Leino, fronted some crack cocaine to Mr. Moss, who promised to pay for the drugs within the week.  Da’Leino, meanwhile, owed money to his supplier.  Mr. Moss didn’t pay; Da’Leino got agitated. After a few days  Da’Leino and Mr. Palmer went over to Mr. Moss’s place and waited for him.  When Mr. Moss showed up the three argued.  When Mr. Moss threatened to call the police, Da’Leino pulled out a gun and pointed it at Mr. Moss.  Mr. Palmer then grabbed the gun from Da’Leino and shot Mr. Moss five times, firing two to three shots, pausing a couple of seconds, then firing the remaining shots.

On appeal, Mr. Palmer’s attorney argued that the evidence was not sufficient to support premeditated murder.  The supreme court underwent its Anderson circumstantial evidence routine, described thusly:

First, we must identify the circumstances proved, giving deference “to the jury’s acceptance of the proof of these circumstances and rejection of evidence in the record that conflicted with the circumstances proved by the State.” Second, we independently examine “the reasonableness of all inferences that might be drawn from the circumstances proved,” including inferences consistent with a hypothesis other than guilt.

State v. Anderson, 789 N.W.2d 227, 241-42 (Minn. 2010) (quoting State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010)).  For the evidence to be sufficient to convict of first-degree premeditated murder, a defendant must have formed the intent to kill, and then must have had “some appreciable time” in order to “consider, plan or prepare for, or determine to commit” the killing. Minn. Stat. § 609.18; State v. Moore, 481 N.W.2d 355, 361 (Minn. 1992).  The court found sufficient proof of premeditation by examining evidence of planning, motive and the “nature of the killing.”  The court then examined whether the circumstances that the state proved supported a reasonable inference other than guilt.  The court rejected Mr. Palmer’s assertion that the shooting was but a “rash impulse” rather than premeditated.  The evidence thus supported the premeditated murder conviction.  Justices Meyer, Page and Paul Anderson dissented from this conclusion.

The court rejected, on plain error analysis, Mr. Palmer’s pro se argument that the evidence more closely fit manslaughter offenses.  The court also rejected a couple other pro se arguments.

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.