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This opinion is nonprecedential except as provided by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
A22-0296

State of Minnesota,
Respondent,

vs.

Joshua James Jerde,
Appellant.

Filed October 17, 2022
Affirmed
Wheelock, Judge

Crow Wing County District Court
File No. 18-CR-20-1855

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

Donald F. Ryan, Crow Wing County Attorney, Kelsey Anne Hopps, Assistant County
Attorney, Brainerd, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Segal, Chief Judge; and
Wheelock, Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
Appellant challenges his sentence following revocation of his probation, arguing
that the district court erred by failing to award custody credit for time he spent in custody
in Iowa. We affirm.
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FACTS
Appellant Joshua James Jerde pleaded guilty to felony terroristic threats in Crow
Wing County, Minnesota. At sentencing in August 2020, the district court granted Jerde a
stay of the presumptive 27-month sentence and placed him on supervised probation for five
years. Conditions of his probation included that he comply with the aftercare
recommendations of his inpatient treatment program; enter a halfway house and
successfully complete his stay there; remain law-abiding and display no assaultive,
threatening, or disorderly behaviors; and remain in contact with his probation officer.
A probation violation was filed in November 2020, alleging that Jerde failed to
complete aftercare and discharge recommendations, to enter the halfway house, and to
remain in contact with probation. The district court issued a probation-violation warrant.
Jerde was apprehended pursuant to the warrant, and he appeared in district court shortly
thereafter. The district court scheduled a probation-violation hearing and released Jerde
on the same probationary conditions as before, with the additional condition that he contact
probation that day.
After his district court appearance on the probation-violation warrant but prior to
the probation-violation hearing, Jerde was arrested in Dubuque County, Iowa, for felony
second-degree criminal mischief after he destroyed property and threatened to kill
individuals, including the same victim from his Minnesota terroristic-threats conviction.
The probation officer filed an addendum to the probation -violation report. The district
court then issued another probation-violation warrant.
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Jerde was convicted in Iowa and incarcerated there for a total of 333 days prior to
his extradition back to Crow Wing County on the warrant. Jerde filed a jail-credit
memorandum seeking credit for 387 days, including the 333 days he served in Iowa on the
criminal-mischief conviction.
The district court held a probation-violation hearing, at which Jerde admitted to the
violations but requested a shorter sanction of probationary jail time to account for the time
served in Iowa. The state asked that Jerde’s stay of execution be revoked. The district
court heard testimony from the probation officer and received the treatment-program
discharge summary and chemical-use-assessment recommendations into evidence. Based
on the information in the record, the district court denied Jerde’s request to remain on
probation, executed Jerde’s 27-month sentence, and awarded Jerde 74 days of custody
credit based on its determination that Jerde was not entitled to credit on his Minnesota
offense for time served in Iowa.
Jerde appeals.
DECISION
When pronouncing a sentence, the district court must state the number of days spent
in custody in connection with the offense and must ded uct credit for that time from the
sentence. Minn. R. Crim. P. 27.03, subd. 4(B); State v. Clarkin, 817 N.W.2d 678, 687
(Minn. 2012). The defendant bears the burden of establishing entitlement to jail credit for
any specific period of time. Clarkin, 817 N.W.2d at 687.
The decision to award custody credit is not discretionary with the district court.
State v. Johnson, 744 N.W.2d 376, 379 (Minn. 2008). “The district court’s decision
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whether to award custody credit is 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 the district court’s factual findings for clear error but
review questions of law de novo. Id.
When determining whether custody credit applies, Minnesota courts “distinguish
between intrajurisdictional custody (custody within Minnesota) and interjurisdictional
custody (custody outside of Minnesota).” Id. at 345. The purpose of awarding credit for
intrajurisdictional custody, or time in custody within Minnesota, is to avoid the following
concerns: de facto conversion of a concurrent sentence into a consecutive sentence,
indigent persons serving longer sentences due to the inability to post bail, irrelevant factors
affecting the length of incarceration, and prosecutors manipulating charging dates to
increase the length of incarceration. Id. While the question of intrajurisdictional custody
credit requires that credit be evaluated in light of avoiding those four concerns, the question
of interjurisdictional custody credit is governed by a different test. Id.
To determine whether custody is interjurisdictional custody for which a defendant
can receive custody credit, Minnesota courts apply the “solely-in- connection-with test”—
“a defendant can only receive credit for time spent in the custody of another jurisdiction if
the time was served solely in connection with the Minnesota offense. ” Id.; see also State
v. Willis, 376 N.W.2d 427, 427 (Minn. 1985) (holding that a defendant charged with a
crime in Minnesota and detained in another state at the request of Minnesota authorities is
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not entitled to credit against a Minnesota sentence for time in custody in the other state
unless the Minnesota charge was the sole reason the defendant was held by the other state).
Jerde argues that the current law applying the solely-in-connection-with test to
interjurisdictional custody should be overruled and that he should receive custody credit
for time served in Iowa because Minnesota law prefers multiple sentences to be served
concurrently. We address each argument in turn.
I. The district court did not err by not awarding custody credit for the time Jerde
served in Iowa because the Minnesota offense was not the sole reason that he
was held in custody in Iowa.
Jerde first argues that he should receive custody credit for the time he served in Iowa
because the solely-in-connection-with test should be overruled. Jerde does not claim that
the time he was incarcerated in Iowa on a conviction for criminal mischief is connected
with his offense of conviction in Minnesota or with the underlying behavioral incident.
Rather, Jerde relies on the concurrence from Roy, which critiques the
solely-in-connection-with test for its inconsistency with our courts’ emphasis on
proportionality and fundamental fairness in sentencing. Roy, 928 N.W.2d at 349 (Thissen,
J., concurring). 1 Jerde points to the principles in the Roy concurrence to argue that we

1 Jerde further directs us to a case that was recently before this court, State v. Kurtenbach,
No. A21-0526 (Minn. App. Sept. 20, 2021) (Kurtenbach I), rev. granted (Minn. Nov. 24,
2021), and order granting rev. vacated (Minn. June 9, 2022), in which the Minnesota
Supreme Court heard argument to determine whether the interjurisdictional custody-credit
rule should be overruled. However, the order granting review was vacated, and the appeal
was dismissed, on the basis that the petition for further review was improvidently granted.
In a more recent appeal, the same appellant in Kurtenbach I unsuccessfully challenged the
denial of his custody- credit request for time served on an unrelated offense in South
Dakota. See State v. Kurtenbach, No. A21-1188 (Minn. App. July 18, 2022) (Kurtenbach
II).
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should overrule established law applying the solely-in -connection-with test to
interjurisdictional custody-credit decisions.
Our court is bound by Minnesota Supreme Court precedent. State v. Curtis,
921 N.W.2d 342, 346 (Minn. 2018). Existing supreme court precedent is clear that the
solely-in-connection-with test governs the application of interjurisdictional custody credit.
See Willis, 376 N.W.2d at 428; State v. Mattson, 376 N.W.2d 413, 416 (Minn. 1985). In
2019, consistent with existing precedent, the supreme court in Roy reaffirmed the principle
that a defendant may receive credit for time spent in custody in another jurisdiction only if
the time served was solely in connection with the Minnesota offense. 928 N.W.2d at 345.
Jerde’s reliance on the concurrence in Roy is unavailing because concurring
opinions are not binding precedent on our court. See Maryland v. Wilson, 519 U.S. 408,
412-13 (1997); Tapia v. Leslie, 939 N.W.2d 320, 324 (Minn. App. 2020), rev’d on other
grounds, 950 N.W.2d 59 (Minn. 2020). Because both this court and the district court must
apply the existing law, we are bound by precedent to apply the solely-in-connection-with
test for interjurisdictional custody-credit determinations, and Jerde’ s argument that the
district court erred fails.
II. The district court did not err in not awarding Jerde credit for time spent in
custody in Iowa because the preference that multiple sentences be served
concurrently under Minnesota law does not apply to interjurisdictional
custody not solely in connection with a Minnesota offense.

Jerde next argues that custody credit should be awarded for the time he served in
Iowa because Minnesota law includes a preference that multiple sentences be served
concurrently. See Minn. Sent’g Guidelines 2.F (Supp. 2021) (“ Generally, when an
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offender is convicted of multiple current offenses, or when there is a prior felony sentence
that has not expired or been discharged, concurrent sentencing is presumptive.” ). In so
arguing, Jerde cites to Clarkin for the proposition that jail credit is awarded for time spent
in custody on convictions that would be sentenced concurrently. 817 N.W.2d at 685. The
court in Clarkin was focused on avoiding the potential concerns that arise when evaluating
intrajurisdictional custody credit, id., but, as established in Roy, appellate courts do not
review those same concerns in questions of interjurisdictional custody credit, Roy,
928 N.W.2d at 345. Clarkin does not apply here because the custody in Clarkin was
intrajurisdictional, not interjurisdictional. 817 N.W.2d at 681-84.
Jerde also points to instances in which Minnesota sentences have been permitted to
run concurrently with out-of-state sentences, citing both State v. Wakefield, 263 N.W.2d
76, 77-78 (Minn. 1978), and State v. Jennings , 448 N.W.2d 374, 375 (Minn. App. 1989).
Neither Wakefield nor Jennings involves custody credit, however. Rather, in Jennings, the
defendant demanded execution and concurrent service of a stayed Minnesota sentence
while in custody in California on an unrelated offense, not custody credit against a
Minnesota sentence for time spent in out- of-state custody on an unrelated offense.
Similarly, in Wakefield, a Minnesota sentence was imposed while the defendant was
serving a federal sentence.
2

2 “We do not find Wakefield persuasive because Wakefield is not a custody credit case. It
involved the related, but separate issue, of concurrent versus consecutive sentencing.” Roy,
928 N.W.2d at 346. The supreme court in Roy also notes that when, as here, the defendant
is being sentenced after having been released from custody in another jurisdiction, the
district court has no option of applying the preference for concurrent sentencing as there is

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Here, Roy is dispositive on the issue of custody credit for time served
interjurisdictionally on an unrelated offense, and because it is factually on point, Roy
controls. In Roy, the district court declined to grant custody credit for time the defendant
served in the Red Lake Detention Center on a n interjurisdictional Red Lake Tribal Court
conviction while on probation for a Minnesota offense for which the stay was revoked, and
on appeal, the solely-in -connection-with test was applied to affirm the district court’s
decision. Roy, 928 N.W.2d at 344. Because “a defendant can only receive credit for time
spent in the custody of another jurisdiction if the time was served solely in connection with
the Minnesota offense,” we conclude that the district court’s determination here, as in Roy,
should be affirmed. Id. at 345.
Finally, Jerde notes that in Jennings, we concluded that the preference for
concurrent sentencing exists in a multistate context whe n the other jurisdiction has
expressed a preference for concurrent sentencing of interjurisdictional offenses.
448 N.W.2d at 375. While distinguishable because it does not address custody credit,
Jennings further differs from the instant case because the out-of -state sentence was
imposed by California rather than Iowa. Id. Iowa law does not appear to express a
preference for concurrent sentencing, either inter- or intrajurisdictionally. Iowa Code
§ 901.8 (2021) (“If a person is sentenced for two or more separate offenses, the sentencing
judge may order the second or further sentence to begin at the expiration of the first or
succeeding sentence.”); Iowa Code § 901.10A (2021) (“The new sentence of imprisonment

no additional current offense with which the other sentence can be made concurrent. Id. at
347.
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for conviction of an aggravated misdemeanor shall be served consecutively with the term
imposed for the parole violation, unless a concurrent term of imprisonment is ordered by
the court.”); see also State v. Hill, 878 N.W.2d 269, 274 (Iowa 2016) (stating consecutive
sentences in parole-revocation sentencing are the default option and presumed under Iowa
Code § 901.10(A)).
Jerde’s argument is inconsistent with applicable law. Therefore, the district court
did not err when executing Jerde’s stayed sentence without applying credit for time he
served in Iowa for an offense unrelated to his Minnesota offense.
Affirmed.