This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
COURT OF APPEALS
CX-96-313

George Norman Martinson,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 16, 1996
Reversed
Huspeni, Judge

St. Louis County District Court
File No. K292301173

Mark D. Nyvold, Suite 654, 386 N. Wabasha, St. Paul, MN 55102 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Alan L. Mitchell, St. Louis County Attorney, Gordon P. Coldagelli, Asst. County Attorney, 1810 12th Ave. E., 107D Courthouse, Hibbing, MN 55746 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.*

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

Appellant claims that he was sentenced to a concurrent sentence, not a consecutive sentence, for the charge of burglary in the first degree. Because the district court failed to pronounce a consecutive sentence on the record at the time appellant was sentenced for the burglary charge, the burglary sentence must run concurrently with the gross misdemeanor sentences and appellant is entitled to 369 additional days of jail credit.

FACTS

On November 5, 1992, appellant George Norman Martinson, Jr. pleaded guilty to burglary in the first degree. Also on November 5, 1992, the district court sentenced appellant on three unrelated gross misdemeanor charges to two consecutive one-year sentences to be served in the Northeast Regional Correction Center (NERCC) (these sentences are not at issue on appeal).

On December 16, 1992, the district court sentenced appellant to 58 months commitment to the State Commissioner of Corrections for the burglary in the first degree charge, but stayed execution of that sentence and placed appellant on probation for seven years. The district court did not state whether the burglary sentence was concurrent with or consecutive to appellant's previously imposed gross misdemeanor sentences.

In February 1995, the district court (having found that appellant violated the conditions of probation), vacated the stay of execution for the burglary charge and executed the previously imposed 58-month sentence, giving appellant 261 days jail credit.

Appellant filed a postconviction petition seeking an additional 369 days of jail credit against his 58-month sentence for time served in the NERCC for his 1992 gross misdemeanor convictions (December 17, 1992, through December 20, 1993). He claimed that his burglary sentence was presumptively concurrent with his executed gross misdemeanor sentences because the district court did not specify that it was consecutive. The district court denied appellant's petition.

D E C I S I O N

Where multiple sentences are involved, Minnesota law provides:

[T]he court in the later sentences shall specify whether the sentences shall run concurrently or consecutively. If the court does not so specify, the sentences shall run concurrently.

Minn. Stat. ' 609.15, subd. 1 (1994) (emphasis added). See State v. Rasinski, 527 N.W.2d 593 (Minn. App. 1995) (holding the failure to pronounce a consecutive sentence on the record at sentencing makes defendant's sentence concurrent by statutory presumption). In addition, at the time the sentence is imposed, the trial court is required to "state the precise terms of the sentence." Minn. R. Crim. P. 27.03, subd. 4(A); see State v. Wakefield, 263 N.W.2d 76, 78 (Minn. 1978) ("precise terms of the sentence" includes whether multiple sentences are to run concurrently or consecutively).

The record indicates that at the November 5, 1992 hearing, the state noted that it had discussed a plea agreement with appellant that included a recommendation that the burglary sentence would run consecutively to the gross misdemeanor sentences. Later, at the same hearing, the district court stated:

[I]f you were to violate the probation you're looking at under the guidelines going to prison for another more than 4 year sentence.

At the December 16, 1992 sentencing for the burglary charge, however, the district court did not specify whether the sentence was concurrent with or consecutive to appellant's previously imposed misdemeanor sentences.

Appellant contends that because the district court did not state on the record at the burglary sentencing that his burglary sentence was consecutive to his gross misdemeanor sentences, the sentence must be treated as a concurrent sentence. We agree.

As further support for his argument, appellant notes that the district court stated at the burglary sentencing:

Although the time [appellant is] serving at the corrections center is not a condition of probation on this sentence, any violation of the rules of the corrections center * * * could result in a violation of probation on this sentence.

Appellant argues that a violation of the correction center's rules could not result in a probation revocation unless the probationary sentence ran concurrently with the misdemeanor sentences. We find merit in appellant's analysis.

In rejecting appellant's argument, the district court stated:

[T]his Court made clear its intention, by the language used in the sentencing transcripts from November 5, 1992, that [appellant] serve the 58 month Burglary sentence in addition to the 2 year sentence for the [three misdemeanor] charges * * *, if [appellant] violated the terms of his probation. It is clear that this Court had in mind a consecutive, not a concurrent, sentence.

While the district court's statement made at the time appellant pleaded guilty to the burglary charge may reflect its intent that the sentences run consecutively, the district court failed to state on the record at the sentencing hearing that the sentences are consecutive. The statute requires that the district court specify whether a consecutive or concurrent sentence is being imposed. Minn. Stat. ' 609.15, subd. 1. The statutory presumption cannot be circumvented by later modification. State v. Isaacson, 409 N.W.2d 291, 293 (Minn. App. 1987). "For purposes of Minn. Stat. ' 609.15, subd. 1, the court's formal on-the-record pronouncement of sentence is controlling." Rasinski, 527 N.W.2d at 595.

Because the district court failed to pronounce a consecutive sentence on the record at the time appellant was sentenced for the burglary charge, we conclude that appellant's sentence is concurrent by statutory presumption. Therefore, appellant is entitled to the 369 days of jail credit he requests and the Commissioner of Corrections shall modify appellant's sentence to reflect that credit.

Reversed.


Footnotes

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