STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1610

State of Minnesota,
Respondent,

vs.

Damon D. Halliburton,
Appellant.

Filed August 14, 2007

Affirmed

Stoneburner, Judge

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.

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

STONEBURNER, Judge

Appellant challenges the district court’s 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.

FACTS

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 Halliburton’s 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 Halliburton’s DNA, which was obtained on June 2, 2005, while Halliburton was in jail in Dakota County. On July 18, 2005, the BCA laboratory confirmed that Halliburton’s DNA matched the sample taken from A.M.B. On January 4, 2006, Halliburton was charged with third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c) (1992).

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, Halliburton’s 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.

D E C I S I O N

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. 1985).

Minn. R. Crim. P. 27.03, subd. 4(B), provides that 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.” 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 “not 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.” State v. Goar, 453 N.W.2d 28, 29 (Minn. 1990). 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 that the prosecution acquires probable cause to charge the defendant with the offense for which he or she is currently being sentenced. State v. Fritzke, 521 N.W.2d 859, 862 (Minn. App. 1994). The defendant has the burden of establishing entitlement to jail credit for detention for any specific period of time. State v. Willis, 376 N.W.2d 427, 428 n.1 (Minn. 1985).

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. Halliburton’s 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 court’s statement that “[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.” State v. Morales,532 N.W.2d 268, 269 (Minn. App. 1995). Halliburton has cited no authority, however, for the proposition that the prosecutor has any ability to affect or manipulate the timing of DNA testing by the BCA. And there is no authority to support the proposition that jail credit should be awarded based on a speculative date when probable cause might have been established had law enforcement investigated a crime in a different manner.

Halliburton’s 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 BCA’s 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 court’s award of jail credit from that date.

Affirmed.