This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Fithi Chernet Asfaha,






State of Minnesota,




Filed August 6, 2002


Anderson, Judge


Olmsted County District Court

File No. K0961282


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Raymond F. Schmitz, Olmsted County Attorney, James E. Haase, Assistant County Attorney, Government Center, 151 Fourth Street SE, Rochester, MN  55904 (for appellant)


John Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for respondent)


            Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

U N P U B L I S H E D  O P I N I O N


            On revocation of a stayed sentence, the district court granted respondent Fithi Chernet Asfaha jail credit for the days he served in the Bar None intensive-treatment program as a condition of his probation.  Because we conclude that the district court erred by granting respondent jail credit for the time he served in a residential treatment facility, we reverse. 


            On May 7, 1996, respondent, then 16 years old, waived an adult-certification hearing and pleaded guilty to first-degree assault under Minn. Stat. § 609.221 (1994).  At the time of the incident, respondent was on probation for several juvenile offenses. 

            Pursuant to a plea agreement, the state, appellant here, agreed to recommend a stay of execution of the presumptive prison sentence, on the condition that respondent successfully complete the probationary requirements of his pre-existing juvenile offenses and similar requirements associated with the plea agreement.

            On June 13, 1996, pursuant to his probation requirements, respondent entered the Bar None treatment program in Anoka.  Respondent was placed in the secure Lakeview facility, the location of Bar None’s intensive-treatment program, which addresses severe behavioral disorders.  On December 3, 1997, while respondent was still in the Bar None intensive-treatment program, the district court stayed execution of respondent’s 98-month presumptive sentence for the first-degree assault offense, on the condition that respondent successfully complete the Bar None program.  Respondent remained in Bar None’s program until March 28, 1997, serving 288 days at the secure Lakeview facility.

            Later in 1997, after he successfully completed the Bar None program, respondent committed the first of several probation violations.  On September 12, 2001, the district court revoked the stay and executed respondent’s 98-month sentence.  Respondent requested jail credit for the time he served in the Bar None program (288 days). 

            On February 8, 2002, the district court, over appellant’s objection, granted respondent 288 days of jail credit, concluding that the Bar None program was the functional equivalent of a state-run correctional facility.  This appeal followed.


            Appellant argues that the district court erred by awarding credit, in part because private treatment programs are not accountable to the Commissioner of Corrections and consistent security standards cannot, therefore, be assured.  Appellant also contends that the district court’s ruling would disrupt equity in sentencing.  Finally, appellant contends that this court has repeatedly “affirmed a strict construction of the sentencing guidelines regarding jail credit for residential treatment facilities.”

            “The granting of jail credit is not discretionary with the trial court.”  State v. Parr, 414 N.W.2d 776, 778 (Minn. App. 1987) (citation omitted), review denied (Minn. Jan. 15, 1988); see also State v. Fritzke, 521 N.W.2d 859, 861 (Minn. App. 1994).  “Awards of jail credit are governed by principles of fairness and equity and must be determined on a case-by-case basis.”  State v. Bradley, 629 N.W.2d 462, 464 (Minn. App. 2001) (citation omitted), review denied (Minn. Aug. 15, 2001).  “The offender has the burden to establish entitlement to specific jail credit.”  State v. Wilkinson,539 N.W.2d 249, 252 (Minn. App. 1995) (citation omitted). 

            Jail credit is automatically deducted from a sentence for “all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed.”  Minn. R. Crim. P. 27.03, subd. 4(B).  An offender is not entitled to jail credit, however, “for time spent in residential treatment facilities” as a condition of probation:

            Credit for time spent in custody as a condition of a stay of imposition or stay of execution is limited to time spent in jails, workhouses, and regional correctional facilities.  Credit should not be extended for time spent in residential treatment facilities or on electronic monitoring as a condition of a stay of imposition or stay of execution.


Minn. Sent. Guidelines cmt. III.C.04; see also Bradley, 629 N.W.2d at 464-65. 

           The district court found that respondent established his entitlement to credit for the 288 days he served in Bar None’s program.  The court acknowledged that Bar None is a “residential treatment facility.”  But the court concluded, after examining photographs and descriptions of the Bar None secure Lakeview facility and intensive-treatment program, that the program had a “punitive impact” resulting from “living behind a fence and locked and barred doors and windows.”  Consequently, the district court concluded that the program was indistinguishable from Minnesota correctional facilities.  The court concluded that respondent would be denied equal protection under the United States Constitution if he were not granted jail credit for time served in the program.

           Appellant primarily relies on two cases to support its argument.  See Bradley, 629 N.W.2d at 462; State v. Peterson, 359 N.W.2d 708 (Minn. App. 1984), review denied (Minn. Mar. 13, 1985).  The Bradley court determined that the sentencing-guidelines provision denying jail credit for attendance at residential treatment centers did not violate equal protection for three reasons: (1) residential treatment centers are alternatives to punishment for the offense committed; (2) offenders who spend probationary time in a treatment facility would ultimately incur less punishment than those who would spend the same time in state custody; and (3) “awarding jail credit for time spent in a treatment program would tend to diminish the incentive to succeed in treatment” and “failure should not be rewarded.”  Bradley, 629 N.W.2d at 466-67. 

           The Peterson court determined that, although the treatment facility in question was a “physically secure structure similar to many correctional institutions,” granting jail credit for attendance there would be “counter to the express provisions of the Sentencing Guidelines.”  Peterson, 359 N.W.2d at 710.

           Here, the district court distinguished Peterson by noting that there was little, if any, analysis of the equal-protection issue by the Peterson court.  Furthermore, the district court distinguished Bradley by stating that the degree of restraint in Bradley was largely unknown; but here the district court opined, “we do know the degree of restraint of personal liberty involved; and it is substantial.”  The district court determined that, although the facility is administrated by a private entity, and “putting aside whatever the legislature, corrections officials, program providers, or judges say about the purposes of these facilities, incarceration in a locked unit for 288 days is punishment for a 16-17 year old.”

            Despite the court’s acknowledgement that Bar None is a “residential treatment facility,” the district court concentrated on the level of security and the punitive impact of the program.  The sentencing guidelines and case law, however, do not support the district court’s conclusion.  Although “fairness and equity” are important in the determination of awarding jail credit, the sentencing guidelines expressly deny jail credit for time served in “residential treatment facilities.”  Minn. Sent. Guidelines cmt. III.C.04.[1]           

We conclude that the district court erred by granting respondent 288 days of jail credit for the time he served in the Bar None intensive-treatment program, and we therefore reverse.


[1] There seems little doubt that the level of security at the Bar None intensive-treatment program meets or exceeds the security level at some Minnesota correctional facilities and we are not unsympathetic to the district court’s observations on this point.  But precedent and the sentencing guidelines simply do not permit jail credit under these facts.