This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Michael Gerald Gamboa, petitioner,





State of Minnesota,




Filed May 16, 2006


Lansing, Judge


Polk County District Court

File No. K7-96-795


Michael Gerald Gamboa, Inmate Number 06940-059, U.S. Penitentiary - Florence, P.O Box 7000, Florence, CO 81226 (pro se appellant)


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)


            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Crippen, Judge.*


U N P U B L I S H E D   O P I N I O N


In this postconviction appeal, Michael Gamboa raises three issues on which he contends that the district court abused its discretion by summarily denying relief:  the denial of right to counsel on his request to execute his stayed sentence, the breach of his plea agreement because of insufficient jail credit, and the improper calculation of jail credit.  Because his request to execute his sentence is not a critical-stage proceeding in which he has a right to counsel, his plea agreement did not include any terms relating to jail credit, and he is not entitled to jail credit for his incarceration outside Minnesota, we affirm the district court’s summary denial.


Michael Gamboa pleaded guilty in August 1996 to charges of first-degree conspiracy to commit a controlled-substance crime and fifth-degree controlled-substance crime.  Under the terms of the plea agreement, the state agreed to recommend a thirty-year stay of the presumptive eighty-six-month executed sentence for the first-degree offense in exchange for Gamboa’s providing information about his codefendants, accomplices, and coconspirators.  For the fifth-degree offense, the plea agreement provided that the state would recommend that Gamboa serve thirty-six months.  In addition, the plea agreement provided that any further violations of law would result in executing the stayed sentence.  At the hearing on the entry of the plea, the state listed the terms of the plea agreement and confirmed on the record that these terms stated the entire plea agreement.  Gamboa also confirmed the terms of the plea agreement on the record and stated that no additional promises had been made to him.

The district court accepted the plea agreement and the recommendations for sentencing.  At the time of the state court sentencing, Gamboa had been sentenced on three unrelated federal charges and was awaiting sentencing on a North Dakota state offense.  The district court ordered that Gamboa’s thirty-six-month sentence be concurrent with his federal and North Dakota sentences and that any time remaining after the completion of these sentences be served by transferring Gamboa to a Minnesota prison.

Following his release from prison on these convictions, Gamboa was arrested on new drug-related charges.  In January 2003 a federal jury convicted Gamboa of eight federal charges involving drug-related activity.  A federal district court sentenced him to two consecutive life sentences, which he is currently serving in a federal prison in Colorado.

Gamboa filed a petition for postconviction relief in March 2003, seeking to withdraw his 1996 guilty plea.  The district court summarily denied his petition.  In May 2004 Gamboa petitioned the district court to execute the stayed sentence on his first-degree controlled-substance conviction.  The district court executed his sentence and granted him 217 days of jail credit for time served in Minnesota.

            In January 2005 Gamboa filed a second petition for postconviction relief, asserting that he was denied effective assistance of counsel because he was unrepresented on his 2004 request to execute his sentence, that failure to credit him for time he served in prison in North Dakota violated his 1996 plea agreement, and that the district court erred in its calculation of jail credit.  The district court denied Gamboa’s postconviction petition without a hearing, and he appeals.


In a postconviction proceeding, the petitioner has the burden of proving, by a fair preponderance of the evidence, facts that warrant relief.  Minn. Stat. § 590.04, subd. 3 (2004).  We review a summary denial of a postconviction petition under an abuse-of-discretion standard.  Powers v. State,695 N.W.2d 371, 374 (Minn. 2005).  If a postconviction petition alleges insufficient grounds to warrant relief, we will affirm the district court’s summary denial of relief.  Minn. Stat. § 590.04, subds. 1, 3 (2004).


The United States and the Minnesota Constitutions ensure that a criminal defendant has the right to counsel.  U.S. Const. amend VI; Minn. Const. art. 1, § 6.  Absent a competent waiver, this right extends to all “critical stages” of a criminal proceeding.  State v. Kouba, 709 N.W.2d 299, 304 (Minn. App. 2006).  To determine what constitutes a critical stage, we evaluate whether constitutional rights are at risk and “whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.”  Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct. 1999, 2002 (1970) (quotation omitted).

Gamboa analogizes his sentence-execution request to a probation revocation.  At a probation-revocation hearing, a defendant has both a constitutional and a statutory right to counsel.  Kouba, 709 N.W.2d at 304; see also Minn. Stat. § 609.14, subd. 2 (2004) (stating that defendant is entitled to be represented by counsel at probation-revocation hearing); Minn. R. Crim. P. 27.04, subd. 2(1)a (requiring defendant in probation-revocation proceeding be advised of right to counsel).

Although we recognize that a petition to execute a sentence effectively revokes a defendant’s probation, we are not persuaded that a sentence-execution request equates to a probation-revocation proceeding.  Unlike a probation-revocation proceeding, a defendant initiates a petition to execute his sentence.  And, if granted, the execution of his sentence operates to the defendant’s benefit by allowing him to complete his sentence simultaneously with his incarceration on a separate offense.  Additionally, consideration of a sentence-execution request is not adversarial in nature because, unlike a probation-revocation hearing, the state ordinarily does not oppose a defendant’s request.  Finally, a defendant’s request to execute a sentence is limited to the single issue of whether to grant the request and differs from a probation-revocation hearing, which characteristically addresses both the grounds for revocation and whether to execute the sentence.

Although Minnesota caselaw does not directly address whether consideration of a defendant’s request to execute his sentence implicates a constitutional right to counsel, the federal courts have determined that it does not.  See Jackson v. Miller, 260 F.3d 769, 776-77 (7th Cir. 2001) (holding that, unlike hearing to impose sentence or consider deferred sentence, defendant does not have right to counsel at hearing on request to execute sentence).  In Jackson, the court reasoned that a hearing on the requested execution of a previously imposed sentence is not a critical-stage proceeding because the defendant is not “in danger of losing any rights by appearing without counsel.”  Id. at 777-78.

The reasoning in Jacksonapplies equally to Gamboa’s claim of a constitutional right to counsel.  Gamboa was not at risk of losing any rights in the consideration of his request to execute his sentence.  The single issue of whether to grant the request inured to Gamboa’s benefit.  Because the request was not a critical-stage adversarial proceeding and did not implicate a constitutional right, the postconviction court did not abuse its discretion by summarily denying Gamboa’s request for relief on this ground.


            Gamboa’s second contention is that the postconviction court abused its discretion by summarily denying relief on his allegation that the jail-credit determination resulted in a breach of his plea agreement.

            To determine whether a plea agreement has been breached, we examine what the parties to the agreement reasonably understood as its terms.  State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).  Although “the government must be held to the promises it made, it will not be bound to those it did not make.”  Id. (quotation omitted).  A dispute on the substance of the plea agreement raises an issue of fact for the district court’s resolution, but the interpretation and enforcement of the agreement are issues of law subject to de novo review.  Id.

            Gamboa essentially argues that the sentencing court’s failure to credit him for a specific amount of jail time constitutes a breach of the plea agreement.  The record provides no support for his claim that the plea agreement contemplated a specified amount of jail credit.  The plea agreement, stated on the record at the plea hearing, contains no agreement on jail credit, and the transcript of the entire hearing is devoid of a reference to a specific amount of jail credit that Gamboa would receive in the event his sentence was executed.  Gamboa specifically acknowledged the accuracy of the agreement stated on the record at the plea hearing and confirmed that the state had made no other promises.  The postconviction court did not abuse its discretion by summarily denying Gamboa’s allegation that the determination of jail credit resulted in a breach of his plea agreement.


A defendant is entitled to jail credit for all time spent in custody following arrest, including time spent in custody on other charges, beginning when the prosecution has probable cause to charge the defendant with the current offense.  State v. Fritzke, 521 N.W.2d 859, 862 (Minn. App. 1994); see also Minn. R. Crim. P. 27.03, subd. 4(B) (requiring that “record accurately reflects all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed”).  The defendant has the burden of establishing that he is entitled to jail credit.  State v. Willis, 376 N.W.2d 427, 428 n.1 (Minn. 1985).  Credit for jail time is mandated under the criminal rules and is not subject to discretionary application.  Minn. R. Crim. P. 27.03, subd. 4(B); State v. Parr, 414 N.W.2d 776, 778 (Minn. App. 1987), review denied (Minn. Jan. 15, 1998).

When calculating jail credit for time served in another state, the district court is required to credit only that amount of time for which the defendant was incarcerated “solely in connection” with a Minnesota offense.  State v. Akbar, 419 N.W.2d 648, 650 (Minn. App. 1988).  If any part of the time the defendant served in another jurisdiction was in connection with a charge in that jurisdiction, the defendant is not entitled to credit for that time.  State v. Brown, 348 N.W.2d 743, 748 (Minn. 1984); State v. Bentley, 329 N.W.2d 39, 40 (Minn. 1983). 

            Gamboa’s incarceration in North Dakota related to his federal charges and his North Dakota charge; it was not solely in connection with a Minnesota offense.  Consequently, he is not entitled to jail credit for the time served outside Minnesota.  The district court properly credited him 217 days for the portion of his thirty-six-month executed sentence that he served in Minnesota.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.