State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0526

State of Minnesota,
Respondent,

vs.

Matthew Christopher Kurtenbach,
Appellant.

Filed September 20, 2021
Affirmed
Larkin, Judge

Yellow Medicine County District Court
File No. 87-CR-19-239

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Keith R. Helgeson, Yellow Medicine County Attor ney, Granite Falls, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Larkin, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges the district court’s refusal to award all of the custody credit
that he requested at his sentencing for a controlled-substance offense. We affirm.
FACTS
In 2018, a federal district court sentenced appellant Matthew Christopher
Kurtenbach to 36 months of supervised release for a controlled-substance offense. In April
2019, law enforcement in Yellow Medicine County, Minnesota, arrested Kurtenbach after
finding methamphetamine in a veh icle he was driving . Respondent State of Minnesota
charged Kurtenbach with one count each of fourth - and fifth-degree controlled-substance
possession, and one count of driving while impaired.
Following his arrest and brief detention, Kurtenbach was released from custody in
Yellow Medicine County. On May 9 , 2019, he was taken into federal custody on
allegations that he violated his federal supervised release. On August 14, 2019, he admitted
that he had violated his federal release conditions by ingesting a controlled substance. The
federal district court revoked Kurtenbach’s supervised release and sentenced him to eight
months in the custody of the United States Bureau of Prisons. Kurtenbach was thereafter
transferred to county jails in Minnesota, whi ch had contracted with federal authorities to
house him during his federal sentence.
In August 2020, Kurtenbach pleaded guilty to the fifth-degree controlled-substance
crime in his Yellow Medicine County case, and the state dismissed the remaining charges.
Prior to sentencing in that case , Kurtenbach was arrested in Washington County,
Minnesota. O n September 17, 2020, Governor Tim Walz ordered that Kurtenbach be
extradited from Minnesota to South Dakota to face charges in that state. Kurtenbach was
extradited to South Dakota on September 29.
At sentencing in his Yellow Medicine County case, Kurtenbach requested 434 days
of custody credit, arguing that he had been in “continuous custody” from May 9, 2019,
until January 3, 2020, and tha t “[o]ver four months of that time was spent in county jails
within Minnesota that had contracts to house federal inmates.” The district court sentenced
Kurtenbach to 21 months in prison with credit for 65 days served. Kurtenbach appeals,
assigning error to the district court’s custody-credit determination.
DECISION
A district court’s decision to award custody credit involves “a mixed question of
fact and law; the court must determine the circumstances of the custody the defendant seeks
credit for, and then apply the rules to those circumstances.” State v. Roy, 928 N.W.2d 341,
344 (Minn. 2019) (quotation omitted). We review a district court’s factual findings for
clear error and its legal determinations de novo. Id.
A defendant bears the burden of establishing that he is entitled to custody credit. Id.
A defendant is entitled to credit for time spent in custody “ in connection with the offense
or behavioral incident being sentenced.” Minn. R. Crim. P. 27.03, subd. 4(B); Roy, 928
N.W.2d at 345. If an offender satisfies his burden, the district court must award custody
credit; the decision is not discretionary. State v. Clarkin , 817 N.W.2d 678, 687 (Minn.
2012).
When determining whether to award custody credit, Minnesota courts distinguish
between custody within Minnesota (intrajurisdictional) and custody outside of Minnesota’s
jurisdiction (interjurisdictional). Roy, 928 N.W.2d at 345. When determining credit for
custody within Minnesota , courts seek to avoid “ de facto conversion of a concurrent
sentence into a consecutive sentence; indigent persons serving effectively longer sentences
as a result of their inability to po st bail; irrelevant factors affecting the length of
incarceration; and manipulation of charging dates by the prosecut or so as to increas e the
length of incarceration.” Id. (quotation omitted). When determining credit for custody
outside of Minnesota ’s jurisdiction, we “apply a different test” and examine whether the
defendant’s Minnesota offense is “the sole reason” for the interjurisdictional custody. Id.
(quotation omitted).
Kurtenbach raises five arguments , and two pro se arguments, in support of his
request f or additional custody credit. Several of his arguments challenge the law as it
currently stands . That is, Kurtenbach challenges the established distinction between
intrajurisdictional and interjurisdictional custody and the separate tests applicable to each.
But as recently as 2019, the supreme court recognized the continuing distinction between,
and separate tests for, the two types of custody. See id. This court is bound by Minnesota
Supreme Court precedent. State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010). We
are therefore obligated to follow the law as it currently exists, to differentiate between the
two types of custody, and to apply the standard applicable to each. The federal custody at
issue here constitutes interjurisdictional custody . Thus, for Kurtenbach to receive
additional credit for that custody , his Yellow Medicine County offense must have been
“the sole reason” for that interjurisdictional custody. See Roy, 928 N.W.2d at 344 -45
(determining that the Red Lake Nation was outside of Minnesota’s jurisdiction). With that
rule in mind, we address Kurtenbach’s arguments.
I.
Kurtenbach contends that he is entitled to additional custody credit because “there
is evidence in the record, never refuted, that for a period of time [he] was ineligible to be
released from federal custody” to a halfway house “solely because of the pending Yellow
Medicine County charges .” He therefore argues that those charges were the sole reason
for his interjurisdictional custody. He “requests a remand back to the district court for a
hearing to determine when he would otherwise have been eligible for release to a federal
halfway house.”
Kurtenbach testified at an omnibus hearing that his Yellow Med icine County
charges “likely” affected his “placement” while being held in fed eral custody for the
supervised-release violation. He testified that he “would have been eligible for what they
call residential reentry centers which is like halfway houses,” but he was deemed “too much
of an escape risk” because of his pending felony. He filed an affidavit with similar
assertions.
Kurtenbach raised th at argument in support of his assertion that the state violated
the Interstate Agreement on Detainers Act and his right to a speedy trial. He did not raise
it as support for his custody -credit claim . Thus, the district court did not specifically
address it in determining custody credit. Appellate courts “generally will not decide issues
which were not rais ed before the district court.” Roby v. State , 547 N.W.2d 354, 357
(Minn. 1996).
But even if Kurtenbach had properly raised his argument , he failed to meet his
burden of production. See Roy , 928 N.W.2d at 344 (discussing burden). Although
Kurtenbach presented some evidence that the Minnesota charge at issue may have affected
his custody status, that evidence was inconclusive. This is not a case, like State v. Mattson,
in which it was “ beyond question that the Minnesota offense wa s the sole reason for
defendant’s Wisconsin incarceration .” 376 N.W.2d 413, 416 (Minn. 1985) . Indeed,
Kurtenbach qualified his omnibus testimony, stating that his placement was “likely”
affected by the Minnesota charge. The fact that Kurtenbach seeks a remand to determine
when he would have been eligible for release also suggests that he did not meet his burden.
Moreover, the record indicates that Kurtenbach was subject to additional pending state
felony charges while he was in federal custody.
In sum, assuming that Kurtenbach’s argument is properly before this court, he has
not established that his Yellow Medicine County charge was the sole reason he was not
released from federal custody to a halfway house. He therefore is not entitled to additional
custody credit.
II.
Kurtenbach contends that under the plain language of Minn. R. Crim. P. 27.03, subd.
4(B), he is entitled to custody credit for his time in federal custody because his Minnesota
sentence and federal custody arose from t he same “behavioral incident .” As support for
that contention, Kurtenbach asks us to apply “[a] narrow reading” of caselaw discussing
the interjurisdictional sole -reason test and to bifurcate rule 27.03, subdivision 4(B), such
that the sole-reason test is applicable to interjurisdic tional custody based on an “offense,”
but not interjurisdictional custody based on a “behavioral incident.” But there is tension
between that approach and supreme court precedent, which governs our decision. See Roy,
928 N.W.2d at 345-46 (noting the applicability of rule 27.03 and applying the sole-reason
test); M.L.A., 785 N.W.2d at 767 (stating that this court is bound by supreme court
precedent).
The record establishes that Kurtenbach admitted thre e federal supervised -release
violations, and the remaining 15 allegations were dismissed. The record also establishes
that those three admitted violations were that he “ ingest[ed] a controlled substance” on
three separate dates in April 2019, prior to his Yellow Medicine Coun ty offense. I t is
therefore clear that Kurtenbach’s federal custody did not occur solely because of his Yellow
Medicine County conduct. Because Kurtenbach’s Yellow Medicine County conduct was
not the sole reason for his federal custody, he is not entitled to additional custody credit.
III.
Kurtenbach contends that he should receive credit for time served in the Sherburne
and Renville County jails because those facilities “are within the jurisdiction of
Minnesota.” Essentially, he argues that because he was in federal custody in Minnesota
jails, pursuant to a contract between the federal government and those state jails, we should
treat that custody as intrajurisdictional custody because the facilities are located within the
physical boundaries of Minnesota.
In Roy, the supreme court stated, “ Although . . . the Red Lake Nation is within the
borders of the state of Minnesota, it is an independent sovereign nation with jurisdiction
over the members of its tribe. ” 928 N.W.2d at 345. The supreme court relied on this
reasoning in determining that the interjurisdictional rule applied. Id. Likewise, although
Kurtenbach may have been held within Minnesota’s physical boundaries, he was in the
custody and control of the federal government, a distinct sovereign entity, as found by the
district court.1
Because Kurtenbach’s federal detention in Minnesota jails, pursuant to a contract
between the federal government and those state jails, constitutes interjurisdictional
custody, we will not treat it as intrajurisdictional custody.
IV.
Kurtenbach contends that the governor’s decision to extradite him to South Dakota
deprived him of custody credit he otherwise would have earned . He argues that if he had
remained in Washington County instead of being extradited, “it is undisputed that he would
have received that custody credit against his Yellow Medicine County sentence.”
Kurtenbach relies on two cases to support his argument. In State v. Hadgu, this
court held that a defendant was entitled to custody credit for time spent in the custody of
the United States Immigration and Naturalization Service (INS), reasoning that the
defendant had posted bail, that the INS held the defendant after the state court conviction

1 Indeed, the district court noted that it attempted to have Kurtenbach “brought across the
street from the Renville County Jail to the Renville County Courthouse for a hearing . . .
and Federal authorities refused.”
and before sentencing, and that the hold was in connection with the Minnesota offense.
681 N.W.2d 30, 31 (Minn. App. 2004), rev. denied (Minn. Sept. 21, 2004). We determined
that the defendant’s INS custody failed to satisfy the interjurisdictional standard bec ause
the custody served “the separate, non-penal purposes of the INS.” Id. at 33. Nonetheless,
we determined that the custody met the “in connection with” standard in rule 27.03, and
we held that “this underlying test applies to INS custody situations.” Id. We distinguished
INS custody from other types of interjurisdictional custody, noting, “INS does not impose
detention for criminal or punitive purposes, as do other jurisdictions holding Minnesota
defendants on their own criminal charges.” Id.
This case is distinguishable for two reasons. First, we are not dealing with INS
nonpunitive detention; Kurtenbach was in federal custody for federal crimes. Second,
unlike Hadgu, in which the defendant’s INS custody was a direct result of his Minnesota
conviction, Kurtenbach’s extradition and interjurisdictional custody arose from his South
Dakota crimes, and not his Yellow Medicine County offense.
Kurtenbach also points to the discretionary nature of the governor’s decision and
relies on State v. Johnson, 744 N.W.2d 376, 379 (Minn. 2008), for the proposition that “the
decision to grant or deny jail credit should not turn on irrelevant factors or be subject to
prosecutorial manipulation.” But, in Johnson, the supreme court was addressing
intrajurisdictional custody when it discussed the need to avoid irrelevant factors and
prosecutorial m anipulation. 744 N.W.2d at 379; see also Roy , 928 N.W.2d at 34 6
(declining to apply intrajurisdictional factors to an interjurisdictional case). Moreover, the
issue in Johnson was whether a defendant is entitled to custody credit for time spent in a
secure treatment facility. 744 N.W.2d at 378. The supreme court ultimately held that the
defendant was not entitled to credit, in part, because his civil commitment was “ unrelated
to the criminal charges for which he was sentenced.” Id. Likewise, Kurtenbach’s transfer
to South Dakota was unrelated to his Yellow Medicine County charges.
In sum, Kurtenbach is not entitled to custody credit based on the governor’s decision
to extradite him to South Dakota.
V.
Kurtenbach contends that the distinction between int rajurisdictional and
interjurisdictional custody should be abandoned for lack of any rational justification. He
cites the concurring opinion in Roy, in which Justice Thissen wrote that t he distinction
between the two types of custody “is unsupportable” and lacks a “principled reason.” 928
N.W.2d at 349 (Thissen, J., concurring). Kurtenbach asks this court to “review his jail
credit request in light of Justice Thissen’s invitation to have the courts reexamine the
viability of the intra/interstate rule under Minnesota law and the l udicrous rationale
underlying this distinction.”
Any reexamination of supreme court precedent must occur in the supreme court.
See M.L.A., 785 N.W.2d at 767 (stating that this court is bound by supreme court
precedent). The majority opinion in Roy clearly differentiated intrajurisdictional custody
from interjurisdictional custody. See 928 N.W.2d at 345 (“Because the Red Lake Nation
is a separate sovereign jurisdiction , the interjurisdictional rule applies.”). Moreover, the
supreme court noted its previo us refusal “to apply the factors from the intrajurisdictional
custody credit test to a case involving interjurisdictional custody credit” and “decline[d] to
consider those factors” in Roy. Id. at 346. We therefore apply the distinction between the
intrajurisdictional and interjurisdictional custody in this case. See Maryland v. Wilson, 519
U.S. 408, 412-13 (1997) (stating that concurring opinions are not binding).
VI.
Kurtenbach submitted a pro se supplemental brief. He contends that the denial of
his requested custody credit violates his right to equal protection under the Fourteenth
Amendment. He also contends that the governor’s extradition order violated the
separation-of-powers doctri ne. Generally, this court reviews constitutional issues,
including questions of constitutional interpretation, de novo. Gluba ex rel. Gluba v. Bitzan
& Ohren Masonry, 735 N.W.2d 713, 719 (Minn. 2007); State v. Barker, 705 N.W.2d 768,
771 (Minn. 2005).
The Equal Protection Clause of the United States Constitution mandates that
similarly situated individuals be treated alike. Scott v. Minneapolis Police Relief Ass’n ,
615 N.W.2d 66, 74 (Minn. 2000). “An essential element of an equal protection claim is
that the persons claiming disparate treatment must be similarly situated to those to whom
they compare themselves.” Peterson v. Minn. Dep’t of Lab. & Indus., 591 N.W.2d 76, 79
(Minn. App. 1999) (quotation omitted), rev. denied (Minn. May 18, 1999). In determining
whether two groups are similarly situated, the focus is on “whether they are alike in all
relevant respects.” State v. Cox, 798 N.W.2d 517, 522 (Minn. 2011). Kurtenbach argues
that when determining custody credit, it is unconstitutional to treat individuals in custody
outside of Minnesota’s jurisdiction differently from those in custody within its jurisdiction.
In State v. Roy, the a ppellant argued to this court that she was denied equal
protection based on race “because a non-Indian who committed the same crimes that she
did on the Red Lake reservation, either individually or with [the] appellant, would have
received jail credit for any related tim e that was served in a Minnesota county jail. ” 920
N.W.2d 227, 231 (Minn. App. 2018), aff’d, 928 N.W.2d 341 (Minn. 2019). In determining
that the appellant’s claim lacked merit, we reasoned that “ Minnesota would have
jurisdiction over the non-Indian who committed the crimes on the reservation, whereas the
Red Lake tribe ha[d] jurisdiction over [the] appellant for the acts sh e committed on the
reservation,” and that the appellant therefore was not “similarly situated to a non -Indian
who commits a crime on the Red Lake reservation.” Id. at 231-32 (citation omitted).
In sum, jurisdiction is a relevant factor when determining if two groups are similarly
situated for purposes of custody credit. See also Roy, 928 N.W.2d at 345 (stating that a
“threshold question” was whether the Red Lake Nation is within the jurisdiction of the
State of Minnesota). Because individuals who are subject to distinct jurisdictions are not
similarly situated in all relevant respects, Kurtenbach’s equal-protection challenge fails.
Kurtenbach next argues that the denial of custody credit for his time spent in custody
in South Dakota followi ng the governor’s extradition order violates the separation -of-
powers doctrine because it “effectively allows the executive branch to determine how much
credit [he] will receive against his sentence,” which “invade[s] the province of the judicial
branch.”
The legislature has granted the governor discretion to extradite a person with
criminal matters pending in Minnesota to another state to face charges in that state. Under
Minn. Stat. § 629.19 (2020):
If a criminal prosecution has been instituted against
such person under the laws of this state and is still pending, the
governor either may surrender the person on demand of the
executive authority of another state or hold the person until the
person has been tried and discharged or convicted and
punished in this state.

Kurtenbach challenges the constitutionality of section 629.19. “We review the
constitutionality of a statute de novo.” Carlton v. State , 816 N.W.2d 590, 6 11 (Minn.
2012). “Statutes are presumed to be constitutional, and we will find a stat ute
unconstitutional only when absolutely necessary.” Id. (quotation omitted). “The party
challenging a statute must demonstrate that the statute is unconstitutional beyond a
reasonable doubt.” Id. (quotation omitted).
We have considered Kurtenbach’s separation-of-powers argument and conclude
that he has not met his burden to prove that the governor’s legislatively authorized
discretion to extradite violates the separation -of-powers doctrine. See Koch v. O’Brien,
131 A.2d 63, 64-65 (N.H. 1957) (concluding that executive discretion under statute to grant
or refuse rendition of a fugitive d id not violate separation -of-powers provision of state
constitution); see also Ture v. State , 681 N.W.2d 9, 20 (Minn. 2004) (rejecting pro se
arguments without detailing consideration of each argument).
Affirmed.