State v. Clarkin, Nos. A10–1286

• Decision Date: 01 August 2012
• Docket Number: A11–0548.,Nos. A10–1286
• Parties: STATE of Minnesota, Respondent, v. Matthew James CLARKIN, Appellant.
• Court: Minnesota Supreme Court

817 N.W.2d 678

STATE of Minnesota, Respondent,

v.Matthew James CLARKIN, Appellant.

Nos. A10–1286, A11–0548.

Supreme Court of Minnesota.

Aug. 1, 2012.

Syllabus by the Court

Defendant convicted of harassing and stalking his victims is not entitled to a jail credit on his harassment/stalking sentence when (1) time spent in custody was for an unrelated parole violation, (2) during the time spent in custody the State did not have both probable cause to arrest and evidence sufficient to provide a reasonable likelihood of conviction on the harassment/stalking charge, and (3) there was no evidence of charging manipulation by the State.

Lori Swanson, Attorney General, Saint Paul, MN; and Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, MN, for respondent.

David W. Merchant, Chief Appellate Public Defender, Richard Schmitz, Assistant State Public Defender, Saint Paul, MN, for appellant.

OPINION

ANDERSON, PAUL H., Justice.

Matthew James Clarkin seeks review of a court of appeals published opinion affirming the district court's decision to deny Clarkin 222 days of jail credit. Clarkin sought to apply 222 days of jail credit to his harassment/stalking conviction sentence even though the jail credit claim was based on time Clarkin spent in custody on an unrelated parole violation. When the district court sentenced Clarkin on one count of felony harassment/stalking following a plea agreement, the court implicitly denied Clarkin any credit for time spent in custody on the parole violation. Following his sentencing, Clarkin appealed to the court of appeals; but he then filed a motion to stay the appeal and allow a remand for postconviction proceedings. His motion was granted.

The postconviction court held that Clarkin was not entitled to any jail credit because the police did not have probable cause to arrest Clarkin on the harassment/stalking charge until after he was released from prison on the parole violation. The court of appeals affirmed the district court in a published opinion but did so on different grounds. The court of appeals held that regardless of when the State had probable cause to charge Clarkin, he was not entitled to any jail credit for time spent in custody because the parole violation and the harassment/stalking charge would have been sentenced consecutively, and consecutive sentences are not eligible for jail credit. We affirm the result reached by the court of appeals but do so on different grounds.

In April 2008 appellant Matthew James Clarkin was released from prison after having served a sentence for second-degree assault against his former girlfriend, S.A.S. The assault conviction was the result of Clarkin having stabbed S.A.S. in the leg with a knife. As part of his conditions for release, Clarkin was placed under intensive supervision, which supervision required that he participate in rehabilitative programming, refrain from using or possessing intoxicants, and not violate an Order for Protection (OFP) regarding S.A.S.¹ In May 2008 an arrest warrant was issued for Clarkin because his failure to participate in required programming and his possession or use of intoxicants violated the terms of his supervised release.

On July 5, 2008, the police were dispatched to a home on Wentworth Avenue in Richfield in response to a report of property damage. Upon arrival at the home, the police spoke to S.A.S., who stated that she lived at the home and believed Clarkin had spray-painted graffiti on the home, the garage, and a motorcycle parked in the driveway. In surveying the property, the police observed that the home, garage, and motorcycle had been spray-painted with a “considerable amount of black spray paint.” The police saw several expletives painted on the home, including the word “hore.” S.A.S. and the motorcycle owner stated that they believed Clarkin had done the spray-painting, and that the spray-painting had to have occurred between 2:00 a.m. and 8:52 a.m.

On July 11, 2008, S.A.S.'s daughter and the daughter's boyfriend reported to the police that they saw Clarkin in the backyard of a home adjacent to S.A.S.'s home. On July 12, 2008, officers went to S.A.S.'s father's home in Minneapolis in response to a report that someone had spray-painted words on the home. At the scene, the police found the words “Daddys hore” and other similar words painted in two places on the front of the home and in one place on the south side of the home. According to police, the “graffiti style of the writing, context, word choice, and identical misspellings evidenced a clear match between the person who caused the damage in this incident and the person who caused the damage in the July 5, 2008 incident at S.A.S.'s residence.” S.A.S.'s father told the police he thought Clarkin was responsible for painting the graffiti, because the father had recently seen Clarkin across the street from the home. The father believed Clarkin had been watching the home during the day. The father said that he knew Clarkin was subject to an outstanding arrest warrant.

Police officers arrested Clarkin on July 13, 2008, on the outstanding arrest warrant based on his violation of the terms of his supervised release. The police found two spray paint cans hidden under a porch and a grill at the arrest location. On July 24, 2008, the police spoke to Clarkin and showed him photographs of the graffiti from the July 5, 2008, incident but Clarkin denied spray-painting S.A.S.'s home. Following his arrest, Clarkin remained in custody at the Hennepin County Jail from July 13 through July 31, 2008, and was then transferred to the Minnesota Correctional Facility at Lino Lakes where he remained until his release from custody on February 19, 2009.

No graffiti incidents were reported by S.A.S. or her family members while Clarkin was in custody. But, between April 12, 2009, and November 6, 2009, the police responded to or identified 11 additional incidents involving graffiti or potential OFP violations at the homes of S.A.S., S.A.S.'s father, S.A.S.'s brother, and at the Richfield Lutheran Church, where S.A.S. is employed.

Two of the incidents the police responded to were reports of property damage at S.A.S.'s home. On June 14, 2009, officers observed words painted in orange spray paint on S.A.S.'s home, her garage, her motor vehicle, children's toys, a children's play area, and a child's stroller in the yard. The following words were painted at the home: “Hore, Fun Fuck, Skank, and Crack Bitch.” On November 1, 2009, officers observed the phrases “Hore, Get a Fuck, Hore Skank,” and other words spray-painted in black spray paint on S.A.S.'s home and garage. The police later stated that the graffiti style, misspellings, context, and word choice in these incidents were a “clear match” with earlier graffiti incidents and with each other.

The police responded to four reports of property damage to the home of S.A.S.'s father. On April 12, 2009, Easter Sunday, officers observed the words “SCAK YOUR FUCKING SCAR BIKE SCAK YOU FUCKING SNAC HORK WE WANT ARE MONYE” spray-painted in black on the south side of the home. On May 9, 2009, officers found the words “You fucking Skanc, Play Us, Fucking XXX, Fucking XXXX” spray-painted on the father's home. On July 4, 2009, officers found the words “Fun Fuck Hore, Daddy Fun Fuck, Fun Fuck, No Morals, No values,” spray-painted in red on the father's home and garage. On August 7, 2009, officers observed the phrase “Your daughter are hore fun fucks skack hore” painted on the father's garage. The police concluded that the graffiti style, misspellings, context, and word choice in these incidents were a “clear match” with earlier graffiti incidents and with each other.

The police responded to three incidents of property damage at the South Minneapolis home of S.A.S.'s brother and his wife. On July 4, 2009, officers observed red graffiti on the brother's garage including the word “hore” and an insinuation that “if a person wanted sex they should visit someone by the name of ‘[S.A.S.].’ ” On August 7, 2009, the police observed the phrase “Fun Fuck,” among others, spray-painted on the south side of the garage at the brother's home. On September 6, 2009, Labor Day weekend, officers observed the words “HA HA you have to love the skank” spray-painted on the walls of the brother's garage and the word “SKANK” on the side of his truck. The police concluded that the graffiti style, misspellings, context, and word choice in these incidents were a “clear match” with earlier graffiti incidents and with each other. In response to the earlier incidents, S.A.S.'s brother installed a surveillance camera, which recorded footage of a man the brother identified as Clarkin committing the September 6, 2009, incident.

The police responded to two incidents of property damage at the Richfield Lutheran Church. As previously noted, S.A.S. is employed at the church. On May 26, 2009, Memorial Day, officers observed several areas of damage on the exterior of the church, which damage included spray paint on the windows and paint on the brick exterior. On September 8, 2009, the day after Labor Day, officers observed graffiti damage to the building and some children's play equipment, including the phrase “S[A.S.] HORE HORE FUCK MORE PIG.” The police concluded that the graffiti style, misspellings, context, and word choice in these two incidents were a “clear match” with the earlier graffiti incidents and with each other.

The police also identified matching graffiti at two other locations. On May 9, 2009, officers observed the words “Your skanc hore owes us money” spray-painted on the home next door to the home of S.A.S.'s father. On July 4, 2009, while responding to an incident at S.A.S.'s brother'shome, officers observed the same type of graffiti on a home across the alley.

In addition to the graffiti incidents, police officers responded to several calls related to prowling and potential OFP...