This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Akram Muhammad, petitioner,
State of Minnesota,
Filed May 18, 2004
Hennepin County District Court
File No. 00117441
John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge, and Peterson, Judge.
Appellant challenges the postconviction court’s order denying his petition for modification of his 1998 adult sentence for second-degree assault and first-degree aiding an offender, imposed as part of an EJJ disposition and executed in 2002. Appellant argues that because there was no evidence that the court intended an upward departure or that appellant knowingly, voluntarily, and intelligently waived his right to be sentenced under the guidelines, his sentence should have been modified. Appellant also argues that he is entitled to jail credit for time he spent in the Bar None treatment program. Because we conclude that appellant’s sentence was in accordance with the guidelines and that the 2000 amendment to Minn. Stat. § 260B.130, subd. 5 (1998), bars appellant from receiving jail credit, we affirm.
On July 3, 1998, appellant Akram Muhammadattended a party at 6048 Ewing Avenue North in Brooklyn Center, where he got into a confrontation with M.A.L. Appellant had a gun with him during the argument and admitted that he wanted M.A.L. to be afraid of him. The following evening, appellant attended another party at the same residence with three of his friends, including S.B. According to witnesses, appellant and his friends began arguing with M.A.L. and went outside to fight. Once outside, someone struck M.A.L. in the head with an object, causing him to fall to the ground. Appellant then handed a gun to S.B. and told him to “shoot [M.A.L.] in the head.” S.B. shot M.A.L. in the chest. Police responded to the scene at approximately 1:00 a.m. on July 5, 1998, and found M.A.L. lying on the ground with a gunshot wound to the chest.
Appellant agreed to hide the gun used to shoot M.A.L. at his home. Appellant admitted he made this decision knowing the gun was used in the shooting, that M.A.L. had sustained a life-threatening injury that resulted in paralysis, and that S.B. had been arrested for the crime. Police executed a search warrant at appellant’s residence and recovered the gun. Appellant maintained that he was not involved in the shooting, but nonetheless took responsibility for having a gun at the party and for assisting in concealing the gun after the shooting.
Appellant reached a plea agreement with the state. In exchange for dismissal of the more serious charges, appellant pleaded guilty to second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (1998), and first-degree aiding an offender known to have committed the crime of assault, in violation of Minn. Stat. § 609.495, subd. 3 (1998). The state agreed that appellant could be designated an extended jurisdiction juvenile (EJJ), rather than being certified as an adult. The district court adjudicated appellant as delinquent and imposed a stayed sentence of 79 months, comprised of 36 months for the assault crime and a consecutive term of 43 months for the aiding-an-offender crime. The court placed appellant on EJJ probation and committed him to the Bar None locked unit treatment program.
As part of his EJJ probation, appellant was required to abstain from drug and alcohol use and to become gainfully employed. On December 8, 2000, appellant waived the right to a hearing and admitted that he tested positive for marijuana and had not held a job since his release from a group home six months earlier. Consequently, the court revoked appellant’s EJJ probation. The court imposed appellant’s 79-month adult sentence, but stayed execution for ten years on the condition that appellant spend 12 months in the workhouse, participate in chemical dependency counseling, and remain employed and law-abiding upon release.
On September 7, 2001, appellant was charged with minor consumption and disorderly conduct and was subsequently sentenced to 30 days in the workhouse. Appellant’s 79-month sentence was not executed at that time. On February 15, 2002, appellant was again charged with violating his probation after testing positive for marijuana and cocaine and committing a new criminal offense in Illinois. Following appellant’s contested disposition hearing on June 3, 2002, the district court revoked appellant’s stay and executed his 79-month prison term.
Appellant filed a petition for postconviction relief, arguing that his sentence should be modified under State v. Misquadace, 644 N.W.2d 65 (Minn. 2002), because his consecutive sentence was a departure under the guidelines and because his plea agreement, standing alone, did not provide substantial and compelling reasons justifying the sentence. Appellant also argued that he was entitled to jail credit for the time he spent in various jails between the date probable cause was established and the date his sentence was executed, as well as for time spent in the Bar None program.
The postconviction court denied appellant’s modification request, finding that appellant’s reliance on Misquadace was erroneous and that a consecutive sentence was proper because the underlying conduct of the aiding-an-offender crime made it a crime against persons. The court granted appellant’s request for four days of jail credit for time spent in jail prior to execution of his sentence, but denied jail credit for the time he spent in the Bar None program pursuant to Asfaha v. State, No. C6-02-691, 2002 WL 1803827 (Minn. App. Aug. 6, 2002), rev’d, 665 N.W.2d 523 (Minn. 2003). This appeal follows.
A postconviction court’s rulings are reviewed under an abuse-of-discretion standard. State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). On factual issues, we determine whether the evidence is sufficient to sustain the postconviction court’s findings. Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003). We “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.” Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). But on legal issues, we exercise de novo review. Butala, 664 N.W.2d at 338.
Appellant argues that the postconviction court abused its discretion in denying his petition to modify his sentence. Appellant contends that although the parties believed that a 79-month sentence was presumptive, it was actually a departure because aiding an offender is not a “crime against persons,” and consequently, a consecutive sentence is not permissible under the guidelines. See Minn. Sent. Guidelines II.F.2. Appellant argues that because there was no evidence that the court intended an upward departure or that appellant knowingly, voluntarily, and intelligently waived his right to be sentenced under the guidelines, his sentence should have been modified.
While we agree with respondent that appellant’s petition for postconviction relief was untimely and should not have been considered, see Minn. Stat. § 244.11, subd. 3(b), (c) (1998), we nonetheless address the merits of this appeal. The sentencing guidelines provide that “[m]ultiple current felony convictions for crimes against persons may be sentenced consecutively to each other” without constituting a departure from the guidelines. Minn. Sent. Guidelines II.F.2. Furthermore, “[c]onsecutive sentencing is permissive . . . even when the offenses involve a single victim involving a single course of conduct.” Minn. Sent. Guidelines cmt. II.F.04. Although the sentencing guidelines do not define what constitutes a crime against persons, Minnesota caselaw makes clear that this determination depends on the nature of the underlying conduct, not on how the crime is nominally classified. See State v. Myers, 627 N.W.2d 58, 62-63 (Minn. 2001) (holding that consecutive sentence for obstructing legal process is crime against persons if underlying conduct in committing crime posed special danger to human life); State v. Notch, 446 N.W.2d 383, 385 (Minn. 1989) (holding that burglary may qualify as offense against a person if “as committed” it is in fact a crime against persons); State v. Henderson, 394 N.W.2d 561, 563-64 (Minn. App. 1986) (affirming consecutive sentence for burglary even though burglary is listed as “property offense” in the statutes), review denied (Minn. Dec. 17, 1986).
Here, we conclude that the record amply supports the postconviction court’s finding that
[t]he culpability of [appellant] in committing both [the assault and aiding-an-offender] crimes is high and the severity of the crimes is also high. [Appellant] threatened another person with a gun and then hid the gun that was used to shoot this same person at a later date. The victim of these matters was almost killed by the injuries sustained from the shooting and is now currently paralyzed. The underlying conduct in the Aiding an Offender charge is such that this Court considers it to be a crime against a person.
Because the aiding-an-offender crime constitutes a crime against persons under these circumstances, appellant’s sentence is not a departure from the guidelines and we need not address appellant’s argument that he did not knowingly, voluntarily, and intelligently waive his right to be sentenced under the guidelines. Therefore, we conclude that the postconviction court did not abuse its discretion by denying appellant’s petition to modify.
Appellant also argues that the district court erred in denying his request for jail credit for time spent in the Bar None treatment program. “The decision to grant jail credit is not discretionary with the district court.” State v. Fritzke, 521 N.W.2d 859, 861 (Minn. App. 1994). Generally, a defendant is entitled to credit 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). But while “an offender may receive treatment either as part of confinement in a state correctional facility or as part of a residential treatment program, the sentencing guidelines only permit jail credit for the correctional facility treatment.” State v. Serena, 673 N.W.2d 182, 185 (Minn. App. 2003), review granted (Minn. Feb. 17, 2004); see also Minn. Sent. Guidelines III.C.3 (jail credit “is limited to time spent in jails, workhouses, and regional correctional facilities”).
In denying appellant’s request for jail credit, the postconviction court relied on this court’s decision in Asfaha v. State, No. C6-02-691, 2002 WL 1803827 (Minn. App. Aug. 6, 2002), rev’d, 665 N.W.2d 523 (Minn. 2003), which held that time spent in juvenile custody could not be calculated as jail credit. But the Minnesota Supreme Court has since reversed Asfaha, holding that certified juveniles are entitled to jail credit for time spent in juvenile custody. Asfaha, 655 N.W.2d at 528.
Appellant argues that under Asfaha, he is entitled to jail credit. But effective August 1, 2000, the Minnesota Legislature amended Minn. Stat. § 260B.130, subd. 5 (1998), “to prevent extended jurisdiction juvenile (EJJ) offenders from receiving jail credit for time served in juvenile facility custody if, after a summary hearing, the district court determines that the EJJ offender has violated the conditions of the stayed adult sentence and reasons exist to revoke the stay of execution of the adult sentence.” Serena, 673 N.W.2d at 186; see 2000 Minn. Laws ch. 255, § 1. As we recognized in Serena, the “[l]egislative history regarding the 2000 amendment reflects a clear intent to restrict jail credit for any time spent in juvenile facility custody as an EJJ offender.” Serena, 673 N.W.2d at 186 (emphasis removed); see also State v. Garcia, 670 N.W.2d 297, 299-300 (Minn. App. 2003) (recognizing that Minn. Stat. § 260B.130, subd. 5, prohibits courts from awarding EJJ offenders jail credit for time spent in a juvenile facility against a subsequently revoked stayed adult sentence and that Asfaha did not compel a different result), review granted (Minn. Dec. 23, 2003).
Nonetheless, appellant argues that because he spent his time in Bar None before August 1, 2000, the amendment to Minn. Stat. § 260B.130, subd. 5, does not bar him from receiving jail credit. We disagree. We addressed a nearly identical issue in Serena, where the appellant argued that because Minn. Stat. § 260B.130, subd. 5, did not place any restrictions on jail credit at the time he committed the offenses, application of the 2000 amendment to the EJJ statute changed the legal consequences of acts he committed before the jail-credit prohibition was enacted. Serena, 673 N.W.2d at 188. We held that “[b]ecause application of the 2000 amendment to the EJJ statute was triggered by acts [the appellant] committed after the amendment’s effective date, such application does not violate the prohibition against ex post facto laws.” Id.
Here, application of the 2000 amendment was triggered by acts appellant committed after the amendment’s effective date. Appellant’s EJJ designation was revoked in December 2000 and his adult sentence was executed in June 2002, after another parole violation in February 2002. As in Serena, “at the time of the violation, [appellant] had fair warning that jail credit would not be awarded if the district court revoked his stayed adult sentence.” Id. Therefore, we conclude that the postconviction court did not err in denying jail credit for the time appellant spent in the Bar None program.
 Initially, appellant also asserted that his 43-month aiding-an-offender sentence was a departure because it was calculated in contravention of the guidelines. But as appellant recognizes in his reply brief, the presumptive sentence for this offense in 1998 was 44 to 48 months.