This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-963

 

State of Minnesota,

Respondent,

 

vs.

 

Randall Wallace Hancock,

Appellant.

 

Filed June 13, 2006

Affirmed

Shumaker, Judge

 

Ramsey County District Court

File No. K3-04-3743

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Rosita Severin, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for respondent)

 

John M. Stuart, State Public Defender, Ngoc Nguyen, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant Randall Wallace Hancock contends that the district court denied custody credit to which he was entitled when he was sentenced for first-degree criminal sexual conduct because the court computed the credit from the day the state actually knew of probable cause for an arrest rather than the day probable cause arose.  The district court properly applied the law, and we affirm.

FACTS

            Appellant Randall Wallace Hancock had nonconsensual sexual intercourse on multiple occasions with his former girlfriend’s daughter, S.I.H., from the time she was 13 years old until she was 16.

            S.I.H. became pregnant at age 14 and then told her mother about Hancock’s sexual abuse.  Her mother did not believe her, and the abuse was not reported to law-enforcement authorities.  From that pregnancy, S.I.H. gave birth to a son.  She had a second child, a daughter, when she was 16.

            When S.I.H. was 18, she reported Hancock’s abuse to the police.  An officer investigated the report on January 26, 2004, and learned the identity of Hancock.  In February 2004, the police asked Hancock to submit to DNA testing.  He agreed.  Samples were collected and, on June 28, 2004, the Bureau of Criminal Apprehension reported that 99.9979% of the population, but not Hancock, could be excluded as the biological father of S.I.H.’s son, and 99.9995% of the population, but not Hancock, could be excluded as the biological father of her daughter.

            Hancock ultimately pleaded guilty to first-degree criminal sexual conduct, and the district court sentenced him in accordance with a plea agreement to a prison term of 134 months.  The court reduced that sentence by 213 days because Hancock had been in custody at various times during the investigation of the offenses against S.I.H.  The court computed the custody credit from January 26, 2004, the day on which the police obtained S.I.H.’s report of Hancock’s sexual offenses.

            Hancock appeals only the custody credit, claiming that he is entitled to 1,054 days, calculated from the date on which S.I.H. told her mother of her first pregnancy.

D E C I S I O N

            Awards of jail credit are not discretionary with the district court.  State v. Arend, 648 N.W.2d 746, 748 (Minn. App. 2002).  The calculation of jail credit is governed by the “principles of fairness and equity” and is determined “on a case-by-case basis.”  Id.(citing State v. Bradley, 629 N.W.2d 462, 464 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001)).

“[A] defendant is entitled to credit for all time spent in custody following arrest, including time spent in custody on other charges, beginning on the date the prosecution acquires probable cause to charge defendant with the offense for which he or she was arrested.”  State v. Fritzke, 521 N.W.2d 859, 862 (Minn. App. 1994).  Probable cause exists when police “reasonably could have believed that a crime had been committed by the person to be [charged or] arrested.”  State v. Morales, 532 N.W.2d 268, 270 (Minn. App. 1995) (quoting State v. Olson, 436 N.W.2d 92, 94 (Minn. 1989)).

Hancock contends that he is entitled to jail credit for the time served before the complaint was filed based on the plea agreement and the fact that probable cause existed as of the date S.I.H. first became pregnant and told her mother of the offenses, for a total of 1,054 days. 

The law requires the “police” to have knowledge of probable cause before a custody-credit calculation will begin to run.  State v. Morales, 532 N.W.2d 268, 270 (Minn. App. 1995).  Here, the date on which the police acquired probable cause to arrest Hancock was January 26, 2004, when an officer first learned of the accusation against Hancock.  Therefore, we conclude that the trial court appropriately calculated custody credit from the time S.I.H. reported Hancock’s criminal sexual conduct to the police.

Hancock also contends that, if he does not receive all the custody credit to which he claims to be entitled, his sentence will de facto be consecutive to a prior sentence he is serving, even though the plea agreement required concurrent sentences.

The plea agreement called for a 24-month durational departure from the presumptive guidelines sentence and for the instant “sentence to run concurrent w/any previously imposed sentence.”  The district court sentenced in accordance with the plea agreement.  Because Hancock’s sentences are concurrent with each other, the custody credit is in effect applied to both.  State v. Dulski, 363 N.W.2d 307, 309-10 (Minn. 1985).  The fact that Hancock is actually entitled to less custody credit than he argued for does not convert the sentences into de facto consecutive sentences.

            Affirmed.