This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
State of Minnesota,
Damon D. Halliburton,
Ramsey County District Court
File No. K70687
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Ramsey County Government Center West, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
John M. Stuart, Minnesota Public Defender, Philip Marron, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
††††††††††† Considered and decided by Worke, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.
††††††††††† Appellant challenges the district courtís award of jail credit from the date of a 2005 test that confirmed a match between his DNA and a DNA sample obtained from a 1992 rape victim.† Appellant argues that he should be given jail credit from the date that the state first obtained his DNA sample or, alternatively, from the date when random testing first matched his DNA to the sample taken from the victim.† Because appellant has not shown that the state had probable cause to charge him with the offense before the confirmatory test, we affirm.
††††††††††† A.M.B. was raped in October 1992 by
an unknown assailant.† A DNA sample taken
from her vagina was sent to the Bureau of Criminal Apprehension (BCA)
laboratory for testing.† A sample of appellant
Damon Halliburtonís DNA was taken on August 5, 2002, as part of his processing
as a convicted offender in an unrelated matter.†
On October 19, 2004, the BCA laboratory reported that, during random
testing, a match had been made between the sample taken from A.M.B. and the
sample taken from Halliburton.† The
reported match was used to obtain a search warrant for a second sample of
Halliburtonís DNA, which was obtained on June 2, 2005, while Halliburton was in
††††††††††† Halliburton did not remember the events of 1992, but based on the DNA evidence, he entered an Alford plea of guilty to the charge under a plea agreement.† Jail credit was not mentioned in the plea agreement.
††††††††††† At sentencing, Halliburton, who has been in custody intermittently since October 1992, moved for an award of jail credit from the date that the BCA first obtained his DNA sample or, alternatively, when the first match with the sample from A.M.B. was made in 2004.† Halliburton argues that prompt testing after the BCA obtained a sample of his DNA would have established probable cause for the charge to have been brought against him at that time.† The state argued that because probable cause to charge Halliburton for the crime did not exist until the confirmatory test on July 18, 2005, Halliburtonís jail credit should run from that date.† The district court agreed and awarded jail credit for all time served from July 18, 2005, the date of the confirmatory test.† This appeal followed.
††††††††††† The determination of jail credit is
not discretionary with the district court.†
State v. Parr, 414 N.W.2d 776,
778 (Minn. App. 1988), review denied
(Minn. Jan. 15, 1998).† Credit for time
spent in custody is governed by principles of fairness and equity and must be
determined on a case-by-case basis.† State v. Dulski, 363 N.W.2d 307, 310 (
††††††††††† Minn. R. Crim. P. 27.03, subd. 4(B),
provides that a defendant is entitled to jail credit for ďall time spent in
custody in connection with the offense or behavioral incident for which
sentence is imposed.Ē† But the Minnesota Supreme
Court has moved the focus away from whether time in jail was served in
connection with the offense for which jail credit is sought, to insuring that
denial of jail credit does ďnot convert a presumptively concurrent sentence
into a de facto consecutive sentence
and that the total time a defendant serves does not turn on irrelevancies or on
things subject to manipulation by the prosecutor.Ē †State v.
Goar, 453 N.W.2d 28, 29 (
††††††††††† On appeal, Halliburton argues that probable cause to charge him existed at the time the BCA possessed the matching samples or at least as of the date of the first match.† Halliburtonís argument is based on his assertion that the timing of DNA testing is an irrelevant factor, over which he had no control, that cannot fairly and equitably be used to determine jail credit.† Halliburton asserts that probable cause would have been established in 2002.† If the BCA had immediately tested his DNA sample against all of the victim samples it possessed. †He argues alternatively that probable cause to charge him existed at the time of the first match, or that if the state required a confirmatory test to establish probable cause, the state should have immediately obtained the confirmatory test, and the delay between the tests, from October 19, 2004, to July 18, 2005, should not be a factor used to extend his time served.††
††††††††††† Halliburton concedes that there is
no evidence of actual manipulation by the state to delay testing in this case,
but relies on the supreme courtís statement that ď[e]ven where there is no
manipulation of the charging process . . . but the result is the same as if the
prosecutor deliberately attempted to manipulate the process, jail credit should
be determined favorably to the defendant.Ē†
State v. Morales,532 N.W.2d 268, 269 (
††††††††††† Halliburtonís most persuasive argument is that jail credit should run from the date of the first match of the samples, but on the minimal record before us we are not able to conclude that the confirmatory test was unnecessary to establish probable cause or that the prosecutor had the ability to obtain a second sample from him at an earlier date such that BCAís processing of the second sample would have occurred earlier.† Because Halliburton has failed to establish that probable cause to charge him existed prior to the date of the confirmatory test, we affirm the district courtís award of jail credit from that date.