This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).




Michael Joseph Ponicki,


State of Minnesota,


Filed October 30, 2007


Lansing, Judge


Hennepin County District Court

File No. 03030502


John Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)


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


Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)



            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


The district court denied Michael Ponicki’s postconviction motion to modify a 2003 sentence for third-degree criminal sexual conduct.  Ponicki argues that the district court erred in denying him 290 days of jail credit for time spent in a residential sex-offender treatment facility.  Because the record fails to establish that the level of confinement and limitations imposed at the sex-offender treatment residence made it the functional equivalent of a jail, workhouse, or regional correctional facility, we affirm.


Michael Ponicki pleaded guilty, on July 9, 2003, to one count of third-degree criminal sexual conduct.  The district court sentenced Ponicki to a stayed term of sixty months and placed him on probation for ten years.  As a condition of his probation, Ponicki was required to undergo sex-offender treatment.

            In October 2005, Ponicki was discharged from Alpha House, Alpha Human Service’s residential sex-offender treatment program, prompting the court’s issuance of an arrest-and-detention order.  On January 27, 2006, after a probation-violation hearing, the court revoked Ponicki’s probation, executed his sixty-month sentence, and denied his request for jail credit for the 290 days he spent at Alpha House.

            On July 6, 2006, Ponicki filed a motion to correct his sentence, renewing his request for jail credit for the time he spent at Alpha House.  The district court denied Ponicki’s motion to correct his sentence on September 26, 2006.  This appeal follows.


            “[T]he defendant carries the burden of establishing that he is entitled to jail credit . . . .”  State v. Willis, 376 N.W.2d 427, 428 n.1 (Minn. 1985).  A reviewing court applies a clear-error standard to factual findings underlying jail-credit determinations.  See Asfaha v. State, 665 N.W.2d 523, 528 (Minn. 2003) (applying clear-error standard to district court’s findings on “functional equivalency”).  Questions of law, however, are subject to de novo review.  See Asfaha, 665 N.W.2d at 525-28 (reviewing de novo legal question of whether to grant jail credit for confinement in juvenile facility).

A defendant is entitled to jail 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).  Additionally, the Minnesota Supreme Court has held that fairness and equity require that jail credit be granted when “the level of confinement and limitations imposed are the functional equivalent of those imposed at a jail, workhouse, or regional correctional facility.”  Asfaha, 665 N.W.2d at 528.

The Minnesota Supreme Court has not specifically identified the level of confinement necessary to meet the “functional equivalency” requirement, but the caselaw provides guidance.  In Asfaha, the supreme court upheld a grant of jail credit for time the defendant spent in a treatment facility for juveniles with “severe conduct disorder.”  665 N.W.2d at 524-25.  The court noted various elements of security at the facility, including the existence of a central booth operator to control entrance and exit, the presence of bars on the outside windows, the installation of surveillance cameras throughout the building, and the use of mechanical restraints to transport residents to medical appointments and court hearings.  Id. at 527 (quoting letter from facility’s coordinator of intake and clinical services). 

In denying Ponicki’s request for jail credit for confinement in the structured, residential treatment program at Alpha House, the district court relied on an unpublished opinion of this court, State v. Walker, No. C3-00-1017, 2000 WL 1528662 (Minn. App. Oct. 17, 2000).  The district court’s reliance was based on the fact that Walker “discussed the very treatment program that Mr. Ponicki is seeking credit for attending.”  See id., at *1 (noting that “appellant enrolled himself in Alpha Human Services, a treatment program for sex offenders”).  Although not precedential, we agree that a previous functional-equivalency determination on the identical facility could have persuasive value if the law and the facility are unchanged.  See Andrew L. Youngquist, Inc. v. Cincinnati Ins. Co., 625 N.W.2d 178, 184 (Minn. App. 2001) (noting that unpublished decisions are not precedential but they may have persuasive value). 

The date of the Walker decision, however, significantly limits its instructive value for this case.  Decided before Asfaha, Walker relies on comment III.C.04 of the Minnesota Sentencing Guidelines, which states, “Credit should not be extended for time spent in residential treatment facilities . . . as a condition of a stay of imposition or a stay of execution.”  Asfaha interpreted the guidelines’ provision as requiring that courts must conduct further analysis on “the level of confinement and limitations imposed” at the residential facility.  665 N.W.2d at 528.  A more instructive unpublished opinion is State v. Murray, No. A05-2027, 2006 WL 2405154 (Minn. App. Aug. 22, 2006), decided after Asfaha.  Similar to Ponicki, the appellant in Murray was seeking jail credit for time spent at Alpha House as a condition of probation.  The appellant in Murray conceded that “Alpha House does not have bars on its windows and that participants can physically leave if they choose to do so.”  Id., at *4.  On these facts we concluded in Murray that the record supported the district court’s finding that Alpha House is not like the facility addressed in Asfaha and affirmed the district court’s denial of jail credit.  Id.

As a consequence of relying on the Walker rationale, the district court did not make fact findings on the level of confinement and the limitations imposed at Alpha House.  The district court expressed its belief that Alpha House restricts the liberty of program participants as much as the Hennepin County Workhouse restricts the liberty of inmates.  The court suggested that the Hennepin County Workhouse releases inmates daily for work and permits weekend-long furloughs while Alpha House “doesn’t let you out for long, long periods of time, and even when they do, it’s escorted by somebody else.”  The record, however, contains no evidence to support these assertions.  But cf. State v. Fields, 679 N.W.2d 341, 349 (Minn. 2004) (affirming denial of jail credit when district court relied merely on its familiarity with facility to determine that it was not functionally equivalent to jail, workhouse, or regional correctional facility).

Despite the sparse factual record, the district court nonetheless reached the correct conclusion.  The record does not provide a basis to conclude that Alpha House is functionally equivalent to a jail, workhouse, or regional correctional facility.  Nothing in the record indicates that Ponicki was physically constrained during his stay at Alpha House, and Ponicki concedes that “Alpha House does not have bars and the participants there can physically leave.”

Ponicki argues that, although he was physically free to leave Alpha House, he was not actually free to leave because of the “probationary sanctions” that were placed on him.  But when addressing the issue of “functional equivalency” in cases where the appellant’s confinement was a condition of probation, appellate courts have consistently focused on the level of physical constraint rather than legal constraint.  See Asfaha, 665 N.W.2d at 528 (focusing on level of physical constraint when treatment at residential facility was condition of probation); State v. Razmyslowski, 668 N.W.2d 681, 682-84 (Minn. App. 2003) (focusing on level of physical constraint when treatment at security hospital was condition of probation); Murray, 2006 WL 2405154, at *4 (noting that “appellant’s argument that the threat of probation revocation confined him to the facility is not consistent with the supreme court’s focus on physical restrictions and confinement in Asfaha”). 

A letter referred to in the state’s district court brief provides indirect support for the district court’s decision.  The state attached to its brief a letter from the clinical and executive directors at Alpha House.  The state submitted the letter to demonstrate that Alpha House is distinctly different from a jail or correctional facility.  In response, Ponicki requested an evidentiary hearing in the event that the letter would be included in the record.  In its final order, the district court stated that it would not take the letter into consideration.  We recognize that the district court’s evidentiary ruling precludes us from relying on the contents of the letter.  But the procedural effect is that the only factual information offered that would shed light on the functional equivalency weighed against a finding of functional equivalency, and Ponicki provided no affirmative evidence to show that the level of confinement or the limitations imposed on him at Alpha House would support a different finding.

In summary, because the burden was on the defendant to establish that he is entitled to jail credit and nothing in the record demonstrates that Alpha House is the functional equivalent of a jail, workhouse, or regional correctional facility, the district court did not err by denying Ponicki’s motion for jail credit for the 290 days he spent at Alpha House as a condition of his probation.