State v. Brewer , 2021 ND 198 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 17, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 198State of North Dakota, Plaintiff and Appellee
v.
Michael Brewer, Defendant and Appellant
No. 20210105
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Daniel J. Borgen, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Julie A. Lawyer, State’s Attorney, and Dominic Davis (on brief), third year law
student, under the Rule on Limited Practice of Law by Law Students,
Bismarck, ND, for plaintiff and appellee.
Matthew J. Arthurs, Bismarck, ND, for defendant and appellant.
State v. Brewer
No. 20210105
McEvers, Justice.
[¶1] Michael Martin Brewer appeals from a criminal judgment sentencing
him to five years’ imprisonment with all but 18 months suspended and
crediting him with 157 days of time served. On appeal, Brewer argues the
district court erred in calculating his time served and he is entitled to 419
days’ credit for time served. We affirm.
I
[¶2] On January 24, 2020, Brewer was arrested for terrorizing, simple
assault on a peace officer, preventing arrest, disarming or attempting to
disarm a law enforcement officer, simple assault, and criminal mischief.
Brewer’s initial appearance was held on February 3, 2020, and bond for
pretrial release was set at $5,000.00. Brewer was unable to post bond and
remained in custody. Brewer’s initial arrest was charged as case 08-2020-
CR-00315 (“CR-00315”).
[¶3] On May 13, 2020, while in custody, Brewer attempted to flood his cell
and spat on a correctional officer. Brewer was charged with contact by bodily
fluids in case 08-2020-CR-01321 (“CR-01321”). Brewer had his initial
appearance in case CR-01321 on May 14, 2020, where his bond was merged
with CR-00315. Brewer remained in custody and pleaded guilty to the CR-
01321 charge on June 29, 2020. Brewer was sentenced to one year and one
day and given credit for 46 days of time served in CR-01321.
[¶4] On March 18, 2021, Brewer pleaded guilty to the charges in CR-
00315. At sentencing, the district court credited Brewer with 157 days of
time served. The court rejected Brewer’s contention he was entitled to 419
days of time served, as well as the State’s argument Brewer was only
entitled to 110 days of credit. The court ordered Brewer’s sentence in CR-
00315 to run concurrently with CR-01321. Brewer appeals, arguing the
court erred in calculating the number of days he should be credited.
Although the State initially requested Brewer’s credit be less than 157 days,
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the State has not cross-appealed and argues only in support of the
judgment.
II
[¶5] On appeal, Brewer argues the district court erred in only crediting
him for 157 days served in CR-00315. The court calculated Brewer’s credit
as beginning on January 24, 2020, the day he was arrested, and ending on
the day he was sentenced in CR-01321, June 29, 2020. Brewer contends the
court should have calculated his time served as 419 days, beginning on the
day of his arrest, January 24, 2020, and ending on the day he was sentenced
in CR-00315, March 18, 2021.
[¶6] Section 12.1-32-02(2), N.D.C.C., provides:
Credit against any sentence to a term of imprisonment must be
given by the court to a defendant for all time spent in custody
as a result of the criminal charge for which the sentence was
imposed or as a result of the conduct on which such charge was
based. “Time spent in custody” includes time spent in custody
in a jail or mental institution for the offense charged, whether
that time is spent prior to trial, during trial, pending sentence,
or pending appeal.
[¶7] A criminal defendant’s sentence must be credited for time served in
custody on that charge. State v. Schrum, 2006 ND 18, ¶ 5, 709 N.W.2d 348.
The defendant has the burden to affirmatively show he is entitled to
additional credit for time served in custody. Gust v. State, 2006 ND 114, ¶
5, 714 N.W.2d 826 (citing Cue v. State, 2003 ND 97, ¶ 12, 663 N.W.2d 637).
Although a criminal defendant must be credited for time served in custody,
a defendant is not entitled to credit for time spent in custody for a wholly
unrelated charge. Id.[¶8] This Court has held that credit was appropriate where a defendant’s
presentence custody was the result of his or her inability to make bail, but
was not appropriate “for time served in connection with wholly unrelated
charges based on conduct other than for which the defendant is ultimately
sentenced.” State v. Eugene, 340 N.W.2d 18, 35 (N.D. 1983). We similarly
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held in State v. Trudeau that “where time spent in custody has been credited
toward an unrelated charge, a defendant is not entitled to credit for that
period of time on any other sentence.” 487 N.W.2d 11, 15 (N.D. 1992); see
also State v. Sorenson, 482 N.W.2d 596, 599 (N.D. 1992) (defendants not
entitled to receive credit for time spent in custody other than “as a result of
the conduct on which such charge was based”); State v. Evans, 2018 ND 7,
905 N.W.2d 738 (summarily affirming similar calculation of time served).
[¶9] In Gust, we affirmed the district court’s calculation of time served
where the defendant was arrested on May 18, 2004, and had his parole on
an unrelated offense revoked on May 27, 2004. 2006 ND 114, ¶ 2. Gust was
later sentenced in the overlying case on December 9, 2004. Id. ¶ 3. The court
credited Gust with nine days’ time served, from the date of his arrest to the
date his parole was revoked. Id. Gust argued he was entitled to 203 days’
credit, from his arrest to sentencing. Id. ¶ 4. The court determined the time
served between the revocation of Gust’s parole and his sentencing applied
to “separate, earlier charges.” Id. We agreed, holding Gust was correctly
given credit “for the 9 days from May 18, 2004 until May 27, 2004 that Gust
was incarcerated before his parole was revoked.” Id. ¶ 9. “But from May 27,
2004 until December 9, 2004, Gust was in custody for his parole revocation”
and to grant Gust credit for time served in both cases would be
“inappropriate . . . because the two charges are for separate conduct.” Id. ¶¶
7, 9. We concluded Gust’s time served was correctly calculated and he was
not entitled to additional credit. Id. at ¶ 11.
[¶10] Brewer argues Gust is distinguishable from this case because “in
cases where a defendant is still being held on bond, the defendant is
simultaneously being held on both cases.” Brewer contends that, because he
was held on bond in CR-00315 even after his plea and sentencing in CR-
01321, he was “subject to a hold the entire time from arrest to sentencing
and should be given credit for the entire time.” Brewer’s argument is
unconvincing. A similar argument was made in State v. Rodriquez, where
the defendant was being held in multiple cases in Burleigh, Morton, and
Williams Counties. 2008 ND 157, ¶¶ 5-6, 755 N.W.2d 102. Although the
record was unclear whether Rodriquez was in custody on a combination of
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the charges, this Court held it made no difference. Id. ¶¶ 10-11. “[W]hen
time spent in custody is credited toward an unrelated charge, a defendant
is not entitled to credit in another sentence.” Id. ¶ 11 (citing Gust, 2006 ND
114, ¶ 10; Trudeau, 487 N.W.2d at 15; Sorenson, 482 N.W.2d at 599; State
v. Arcand, 403 N.W.2d 23, 24 (N.D. 1987)).
[¶11] Section 12.1-32-02(2), N.D.C.C., is clear that defendants must receive
credit for time served “for the offense charged.” After Brewer was sentenced
in CR-01321, any time served had already been credited. Even if Brewer
had posted bond in CR-00315, he would have still been in custody serving
his sentence in CR-01321. In other words, his time in custody after June 29,
2020, was not served “as a result of the criminal charge for which the
sentence was imposed” in CR-00315.
[¶12] It appears the district court may have given Brewer more credit than
he was entitled to in calculating his credit for time served. See Gust, 2006
ND 114 at ¶¶ 7-11 (discussing method for calculating credit for time served
for incarceration on separate charges). However, the State has not cross-
appealed and has not argued that Brewer’s sentence should be modified. We
recognize it is not necessary for the State to cross-appeal to preserve its
right to save the judgment. See State v. Sabinash, 1998 ND 32, ¶ 19, 574
N.W.2d 827. In addition, “[a]n appellee who has not cross-appealed may not
seek a more favorable result on appeal than [they] received in the trial
court.” Matter of Estate of Laschkewitsch, 507 N.W.2d 65, 68 (N.D. 1993).
III
[¶13] We conclude Brewer has not affirmatively established he is entitled
to additional credit for time served in custody. Based on the procedural
posture of this case, we affirm the judgment.
[¶14] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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