This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Wakinyan Waken McArthur,

Filed September 28, 1999
Davies, Judge

Hennepin County District Court
File No. 95035646

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Melissa Sheridan, Bradford Colbert, Assistant State Public Defenders, 875 Summit Ave., Room 254, St. Paul, MN 55105 (for appellant)

Considered and decided by Davies, Presiding Judge, Willis, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the trial court's revocation of his probation, arguing that the state did not prove by clear and convincing evidence that he violated the conditions of probation. Appellant also argues that he is entitled to credit for time spent in a secure treatment facility. We affirm.


In April 1995, appellant Wakinyan Waken McArthur, then a juvenile, pleaded guilty to second-degree felony murder.[1] The juvenile court adjudicated appellant delinquent, sentenced him to 150 months, stayed execution of the sentence, and placed him on probation for 15 years. As part of the plea negotiation, appellant agreed to a referral to the Rebound Juvenile Offender Program in Colorado.

Appellant completed 14 months at the Rebound Program. Following that, the court placed him at Anthony Lewis House for chemical dependency treatment and then at Second Chance Ranch. In July 1997, appellant violated probation by returning late to Second Chance Ranch. A revocation hearing was held, and appellant admitted the violation. The district court continued the probation, terminated juvenile court jurisdiction (appellant was now 18), and ordered appellant to serve 90 days in the adult workhouse.

In April 1998, appellant was charged with murder in the second degree. The victim was Jerome Peake. In October 1998, a jury acquitted appellant of the Peake murder. The next month, an arrest and detention order was issued charging appellant with violating probation by possessing a firearm. Appellant denied the violation, and a revocation hearing was held. After finding that appellant had intentionally violated his probation by possessing a firearm, the trial court executed appellant's 150-month sentence. The court also concluded that appellant was not entitled to credit for his 14 months at the Rebound Program. This appeal followed.


I. Probation Revocation

The trial court has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.

State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).

If a court finds that clear and convincing evidence shows a defendant has violated any condition of probation, the court may continue a previous stay of execution and place the defendant on probation, order intermediate sanctions, or order execution of the previously imposed sentence. Minn. Stat. § 609.14, subd. 3(2) (1998); Minn. R. Crim. P. 27.04, subd. 3(3). Clear and convincing evidence is "more than a preponderance of the evidence but less than proof beyond a reasonable doubt." Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978). The standard is met "where the truth of the facts asserted is `highly probable.'" Id.

Here, the evidence before the trial court was the testimony of Marsha Friday who testified at the revocation hearing that appellant had given her an assault rifle to protect her family. Appellant argues that this testimony is not clear and convincing evidence because Friday had, in connection with the Peake murder investigation, given contradictory statements.

At the revocation hearing, Friday admitted she had previously lied to the police about the rifle. She gave as a reason for lying, first, that the police had told her the child protection agency was interested in the fact that she had a weapon in her home (causing concern about whether her custody of her children might be terminated) and, second, that her husband and appellant were members of the same gang and there were serious physical consequences for persons who "snitched" on gang members. These are believable reasons for Friday having lied to the police at an earlier date.

The revocation court found credible Friday's testimony at the probation-revocation hearing, and we see no reason to reverse the court's finding. See State v. Miller, 573 N.W.2d 661, 670 (Minn. 1998) (stating appellate court reviews factual findings for clear error). The district court did not abuse its discretion in revoking appellant's probation.

II. Jail Credit

"The granting of jail credit is not discretionary with the trial court." State v. Parr, 414 N.W.2d 776, 778 (Minn. App. 1987) (citation omitted), review denied (Minn. Jan. 15, 1988). But the burden is on the defendant to prove entitlement to jail credit. State v. Willis, 376 N.W.2d 427, 428 n.1 (Minn. 1985).

Appellant spent 14 months at the Rebound Juvenile Offender Program in Colorado. The state contends, and appellant does not dispute, that the Rebound Program is a treatment facility and that appellant received treatment there as a condition of his probation. But appellant argues that he should receive credit for this time because Rebound is a locked and secure facility and, thus, more like a correctional facility than a treatment facility.

An offender is, however, not entitled to jail credit for time spent in a treatment facility as a condition of probation. State v. Peterson, 359 N.W.2d 708, 709-10 (Minn. App. 1984), review denied (Minn. Mar. 13, 1985); see also Minn. Sent. Guidelines III.C.3 (credit for confinement as condition of stayed sentence "is limited to time spent in jails, workhouses, and regional correctional facilities"); Minn. Sent. Guidelines cmt. III.C.04 (credit should not be given for time spent in residential treatment facility as condition of stay of execution).

Likewise, the fact that the treatment center is a locked and secure facility does not change the outcome. See Peterson, 359 N.W.2d at 710 (security of institution "irrelevant" in determining whether defendant is entitled to credit for time spent in treatment facility). In Peterson, this court declined to give the defendant credit for time spent in a treatment facility, even though the facility was "a physically secure structure similar to many correctional institutions." Id.

Appellant cites a recent unpublished opinion of this court, State v. Bowman, No. C7-98-1892, 1999 WL 153788 (Minn. App. Mar. 23, 1999), as support for his argument. Bowman is distinguishable. In Bowman, an extended juvenile jurisdiction offender's sentence was stayed, conditioned on successful completion of the Prepare Program at Red Wing. Bowman, 1997 WL 153788 at *1. After 43 days at Red Wing, Bowman requested that his sentence be executed. Id. On appeal, this court determined that Bowman was entitled to credit for his time at Red Wing because he had been "committed to the care and custody of the Commissioner of Corrections," and Red Wing was, by statutory definition, a "correctional facility." Id.

In his brief, appellant asserts that there is no discernable difference between the Prepare Program at Red Wing and the Rebound Program in Colorado. But it is undisputed that Rebound is a treatment facility and not a correctional facility. Under both Peterson and the sentencing guidelines, an offender does not get credit for time spent in a treatment facility. The trial court did not err in concluding that appellant was not entitled to credit for time spent at the Rebound Program.

We deny appellant's pro se motion for dismissal of this appeal so that he can file a postconviction petition. Appellant is represented by counsel, and his counsel's motion to stay the appeal for the same purpose has already been denied. Moreover, it is counsel's decision what motions to file. A pro se supplemental brief is intended to supplement counsel's arguments on appeal. See Case v. State, (364 N.W.2d 797, 800 (Minn. 1985) (appellant may submit supplemental brief stating divergent opinions as to issues that should be raised on appeal).


[1] The state had moved for adult certification. As part of the plea agreement, appellant waived certification and a complaint was filed in adult court. Both the state and appellant agreed to "dual jurisdiction" of juvenile and adult court (the offense occurred one day before the EJJ statute took effect).