This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 4 ). STATE OF MINNESOTA IN COURT OF APPEALS A14
- 0068 State of Minnesota, Respondent,

vs. Michael John Mahle, Appellant. Filed January 12, 2015 Affirmed in part and remanded Schellhas , Judge Anoka County District Court File No. 02

- CR

- 12

- 5912 Lori Swanson, Attorney General, St. Paul, Minnesota; and Anthony C. Palumbo, Anoka County Attorney, Lisa B. Jones, Brianne Jo Buccicone, Assistant County Attorneys, Anoka, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Sharon E. Jacks, Assistant Public Defenders, St. Paul, Minnesota (for appellant) Considered and decided by Schellhas , Presiding Judge; Johns on , Judge; and Stoneburner , Judge

. *

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.2 U N P U B L I S H E D O P I N I O N SCHELLHAS , Judge Appellant argues that the district court erred by imposing a gross misdemeanor
sentence consecutive to a felony sentence and by not announcing jail credit at the time of sentencing. We affirm in part and remand

. FACTS O n August 10, 2012, respondent State of Minnesota filed a criminal complaint against appellant Michael Mahle , who was then in custody in Anoka County , alleging
one count of felony stalking ( seco nd or subsequent violations) and one count of felony stalking ( pattern of conduct) . On August 12 or 13, 2012, Mahle was released on bond. On July 30, 2013, while serving a n unrelated prison sentence for fourth

- degree assault (peace officer) , Mahle filed a detainer regarding the Anoka County charges and subsequently

re ached an agreement with the state to resolve the charges. 1 The parties agreed to the following terms: Mahle would plead guilty to an amend ed count of gross

- misdemeanor stalking ; t he remaining felony count would be dismissed; and the district court would
sentence Mahle consecutively to the felony sentence he already was serving and would order two years of probation.

1 Mahle was serving a 17

- month prison sentence imposed on July 15, 2013, in Ramsey County District Court , as a result of Mahle ’s guilty plea to fourth

- degree assault o f a peace officer on March 13, 2013. Mahle ’s supervised release date was June 9, 2014, and the expiration date of his sentence was November 28 , 2014

. At the time of sentencing for the fourth

- degree assault conviction , the district court granted Mahle 1 6 days of jail credit.3

On September 16, 2013, Mahle pleaded guilty to an amended charge of gross

misdemeanor stalking , and on October 15, the dist rict court impos ed a stayed, one - year
sentence , plus “probation for a period of two years.” The court stated that “ [b] oth the sentence and the probation are to run consecutive to the time that

. . . Mahle is currently serving” and that the sentence and probation would com mence on November 29, 2014, the day following the expiration of Mahle’s felony sentence. Noting that it was staying “all of [Mahle’s] sentence ,” t he court declined to announce Mahle’s jail credit and stated that it would address jail credit if Mahle’s sentence w as executed. This appeal follows. D E C I S I O N Consecutive sentencing Mahle argues that the district court erred by imposing his gross

- misdemeanor stalking sentence consecutive to his felony assa ult sentence. He argues that if h e had been

conv icted of felony stalking, rather than gross

- misdemeanor stalking, “ his sentence would have been concurrent with the s entence he was already serving for assault.” This court has “express statutory authority to ‘ review [a] sentence . . . to determine whethe r the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court. ’ ” State v. Soto , 855 N.W.2d 303 , 312 (Minn. 2014) ( quoting
M inn. Stat. § 244.11, subd. 2(b) (2012)). “When reviewing a sentence imposed or stayed by a district court, [ appellate courts ] do so under an abuse of discretion standard.” State v. Franklin , 604 N.W.2d 79, 82 (Minn. 2000). A district court abuses its discretion by4

imposing a sentence that “is disproportionate to the offense or unfairly exaggerates the criminality of the defendant’s conduct.” State v. McLaughlin , 725 N.W.2d 703, 715 (Minn. 20 07) (quotation s omitted). When a sentencing challenge is based on a legal issue, an appellate court’s review is de novo. State v. DeRosier , 719 N.W.2d 900, 903 (Minn. 2006). “The Minnesota Sentencing Guidelines state at the outset that they apply only to felonies.” State v. Campbell , 814 N.W.2d 1, 5 (Minn. 2012). “[G]ross misdemeanor sentences are indeterminate with limits set by statute.” Id. at 6 (citing Minn. Stat. § 609.02, subds. 3

– 4 (2010)). “A district court sentencing . . . gross misdemeanor offens es may impose a sentence anywhere within the statutory range.” Id. Additionally ,

[w] hen a court imposes sentence for a misdemeanor or gross misdemeanor offense and specifies that the sentence shall run consecutively to any other sentence, the court may ord er the defendant to serve time in custody for the consecutive sentence in addition to any time in custody the defendant may be serving for any other offense. Minn. Stat. § 609.15, subd. 1(b) (2012). Mahle argues that “a long line of cases from Minnesota’s appellat e courts have indicated that a defendant cannot receive a consecutive non

- felony sentence when he could not have received a consecutive felony sentence , as this exaggerates the criminality of the offense. ” Mahle cites State v. Dulski , a jail

- credit case in which the supreme court stated: We believe that it would be unfair to hold, in effect, that a

defendant who is convicted of a gross misdemeanor may, by virtue of the technical nonapplicability of the Sentencing G uidelines, have to serve more total time in confinement in a5 case such as this than he would have to serve if he were convicted of a felony. 363 N.W.2d 307, 310 (Minn. 1985) (emphasis added) ; see also Dockin v. State , 399 N.W.2d 104, 106

– 07 (Minn. App. 1987) (determining that when defendan t wa s “subject to and under” felony sentence at the time she was sentenced for multiple misdemeanor offenses that could have been aggregated into fewer felony offenses, resulting in no additional time served , consecutive sentencing for misdemeanor offenses unfairly exaggerated the criminality of defendant’s conduct and was unfair ). Mahle also cites State v. Perkins , in which the supreme court cited Dulski and reversed a 30

- month total sentence, which consisted of concurrent 1 3

- and 18

- month felony sentences plus a consecutive 12

- month gross

- misdemeanor sentence. 554 N.W.2d 80, 80 (Minn. 1996)

. T he supreme court noted that had the defendant been sentenced for three felonies, his sentence would have be en 21 months, and concluded that “it [wa ] s unfair to require [the defendant] to spend more time in custody than he would have to spend in custody if he had been convicted of a felony rather than a gross misdemeanor.” Id. But in Perkins , the defendant apparently plead ed guilty to two felonies and one gross misdemeanor simultaneously without agreeing to consecutive sentencing. The circumstances surrounding Perkins’s sentenc es are distinguishable from those surrounding Mahle’s sentenc es . Mahle also cites State v. Weber , a nother jail

- credit case in which the supreme
court recognized that a defendant who se second offense is less serious than his first offense, e.g., a gross misdemeanor following a felony, “will often serve more total time6

than the defendant whose second offense is more serious. ” 470 N.W.2d 112 , 115 (Minn. 1991). The supreme court stated in dicta , “Imposition of a shorter sentence for the second offense, then, may result, illogically it seems to us, in the defendant serving more total time than he would have served h ad his second offense been more serious and the sentence for that offense longer.” Id. at 115

– 16. But the supreme court did not hold that a district c ourt is not permitted to impose a gross - misdemeanor sentence consecutive to a felony sentence. Despite Ma hle ’s lack of authority to support his consecutive

- sentencing argument,

w e address whether the district court’s imposition of a consecutive gross

- misdemeanor sentence to Mahle’s previously imposed felony sentence unfairly exaggerates the criminality of his offense of stalking J.E.K. We do so by asking whether Mahle would have been subject to less incarceration if he had b een sentenced for felony stalking instead of gross

- misdemeanor stalking

. Based on our analysis below, w e conclude that, if Mahle had been sentenced for felony stalking, he would have been subject to a longer period of incarceration

. A district court may order permissive consecutive sentences when “the presumptive disposition for the current offense(s) is commitment,” the “prior felony sentence . . . has not expired or been discharged,” and both felony convictions are for crimes listed in Minn. Sent. Guidelines 6 (2012) . Minn. Sent. Guidelines 2.F. 2.a.(1) (2012)

. Stalking (second or subsequent violations), stalking (pattern of conduct), and f ourth

- degree assault are listed in Minn. Sent. Guidelines 6. Mahle argues that both counts of felony stalking “ call for a presumptive stayed sentence under the Guidelines7

when using a criminal history score

. . . of zero .” Mahle’s argument is based on the incorrect premise that we apply a criminal

- history score of zero to determine the presumptive disposition of his sentence. “[ A ] criminal history score should be reduced only for purposes of det ermining the presumptive duration of the consecutive sentence.” State v. Holmes , 719 N.W.2d 904, 908 n.8 (Minn. 2006). Mahle’s criminal

- history score should be used to determine the presumptive disposition of the sentence. See State v.
Rannow , 703 N.W.2d 5 75, 578

– 79 & n.3 (Minn. App. 2005) (applying defendant’s criminal

- history score to determine presumptive disposition of sentences and whether consecutive sentencing was permissive ). Based on a footnote in Mahle’s reply brief, w e assume that Mahle ’s criminal

history score was five at the time he committed the stalking offense. Felony stalking in violation of Minn. Stat. § 609.749, subdivision 4(a) (2012) ( second or subsequent violations) is a severity

- level

- four offense. Minn. Sent. Guidelines 5.B (2012). With a criminal

- history score of five and a severity level of four, the presumptive disposition for Mahle’s hypothetical felony sta l king sentence is commitment. See Minn. Sent. Guidelines 4 .A (2012)

. Accordingly, Mahle’s sentence, had he pleaded guilty to felony stalking, would have been permissively consecutive. See Minn. Sent. Guidelines 2.F.2.a

. (1). If Mahle had been se ntenced for felony stalking consecutive to his felony assault sentence , t he sentencing court would have been require d to use a criminal

- history score of zero, resulting in a presumptive sentence of 12 months and 1 day executed

. See Minn. Sent. Guidelines 2.F.2.a (2012) ( “For each felony offense sentenced consecutively to another felony offense(s), the court must use a C riminal History Score of 0

. . . .” ) ,8

4.A ; see also State v. Watkins , 650 N.W.2d 738, 742 (Minn. App. 2002) (“[T]he presumptive disposition for a permissive consecutive sentence is always an executed sentence.”). Adding a 12

- month

- and

- 1

- day felony stalking sentence to Mahle’s 17

- month felony assault sentence would result in a total sentence of 29 months and 1 day . Mahle’s sentence therefore would have been one day longer had he been sentenced for felony stalking instead of gross

- misdemeanor s talking. And had the district court chosen to sentence Mahle concurrently for felony stalking, using a criminal

- history score of five a nd a severity level of four , his presumptive guidelines sentence would have been commitment for 23 to 32 months

. 2 See Min n. Sent. Guidelines 4 .A

. A concurrent sentence for felony stalking therefore could have extend ed beyond the combined 29 months of his current sentence

. See State v.
Peters e n , 305 Minn. 478, 48 1 , 235 N.W.2d 801, 803 (Minn. 1975) ( “Under two or more concurrent sentences, the terms are served simultaneously and a prisoner is entitled to discharge at the expiration of the longest term specified.” (emphasis added) )

. We conclude that the district court did not err by sentencing Mahle un der t he plea agreement to a term of one year for gross

- misdemeanor stalking consecutive to his felony sentence.

2 We note that our hypothetical consecutive and concurrent sentencing scenarios for felony stalking only assume a sentence under section 609.749, subdivision 4(a), which is a severity

- level

- four offense. Minn. Sent. Guidelines 5.B. But Mahle was also charged under Minn. Stat. § 609.749, subdivision 5(a) (2012) (pattern of conduct) , which is a severity

- level

- five offense. Minn. Sent. Guidelines 5.B. If Mahle were sentenced under that subdivision, our hypothetica ls would be all the more consistent with our conclusion.9

Delayed c ommencement of consecutive gross
- misdemeanor sentence The district court specifically delayed the commencement of Mahle’s gross

mis demeanor sentence to November 29, 2014, the day after the expiration of Mahle’s felony assault sentence. C it ing Minn. Sent. Guidelines cmt. 2.F.0 2 for the proposition that a defendant will begin to serve his second sentence at the end of the “incarceration period” of his first sentence , Mahle argues that the “district court should not be able to delay the start date of [his] gross misdemeanor sentence when it would have been unable to do so if both sentences had been felonies.” He argues that this is “ a [ n ] additional and logical extension of the Dulski and Perkins line of cases” and maintains that “[ his ] gross misdemeanor sentence must start running no later than the date he was releas ed from prison [on his felony assault sentence] , on June 9, 2014. ” We dis agree. T he sentencing guidelines do not apply to gross misdemeanors

. S ee Campbell , 814
N .W.2d at 5

. Moreover, comments to the sentencing guidelines, to which Mahle cites,

“ are advisory and are not binding on the courts.” State v. Jones , 84 8 N.W.2d 528, 537 (Minn. 2014). And even if the sentencing guidelines were applicable to gross

misdem e anor sentences, the guidelines provide , “When the court orders sentences to be ‘consecutive,’ the court is ordering that multiple sentences be served one after the other.” Minn. Sent. Guidelines 1.B .3 (2012) (emphasis added)

. “A consecutive sentence is one which does not begin to run until the expiration of the term of the prior sentence .” Jones , 848 N.W.2d at 537 n.5 (quotation omitted). An “‘[e]xecuted sentence’ means the total period of time for which an inmate is committed to the custody of the commissioner of corrections.” Minn. Stat. § 244.01, subd. 9 (2012). The sentence “includes both the term10

of imprisonment and the term of supervised release. ” State ex. rel. Peterson v. Fabian , 784 N.W.2d 843, 846 (Minn. App. 201 0 ); see also Minn. Stat. § 244.101, subd. 1 (2012) (describing components of executed sentence). We reject Mahle’s assertion that his argument is supported by a “ logical extension of the Dulski and Perkins line of cases.” Dulski and Perkins only support the proposition that Mahle’s consecutive gross - misdemeanor sentence would have been unfair if it had subjected him to a longer period of confinement than a felony sentence

. See Perkins , 554 N.W.2d at 80 ; Dulski , 363 N.W.2d at 310

. Here, t he commencement date for Mahle’s consecutive gross

- misdemeanor sentence did not subject Mahle to a longer period of confinement than he could have served had the court sentenced hi m for felony stalking. We conclude that the district court did not abuse its discretion by imposing Mahle’s
gross - misdemeanor stalking sentence consecutive to his felony assault sentence and ordering that it commence at the expiration of his felony sentenc e . Jail c redit In connection with his jail credit, Mahle asked the district court during his sentencing hearing, “What if I want to execute that sentence . . . ? I mean, I don’t know what I’m executing.” The district court declined to announce Mahle’s jail credit , stating that it would address jail credit if Mahle’s sentence w as executed. Mahle seeks a remand to the district court with an order that the court announce his jail credit so that he can make a decision about whether to exec ute his stayed gross

- misdemeanor sentence. “The [district] court does not have discretion in awarding jail credit.” State v. Clarkin , 817 N.W.2d 678, 687 (Minn. 2012). “A district court ’ s decision whether to11

award 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. Johnson , 744 N.W.2d 37 6 , 379 (Minn. 2008). “We review the factual findings underlying jail

- credit determi nations for clear error, but we review questions of law de novo.” Clarkin , 817 N.W.2d at 687. “The interpretation of a procedural rule is subject to de novo review.” Johnson v. State , 801 N.W.2d 173, 176 (Minn. 2011).

“ [ A ] defendant is entitled to a credit from his term of imprisonment for the number of days spent in custody in connection with the offense or behavioral incident being sentenced.” Townsend v. State , 834 N.W.2d 736, 740 (Minn. 2013) (quotation omitted). Furthermore, [w] hen pronouncing sentence the court must . . . [s]tate the

number of days spent in custody in connection with the offense or behavioral incident being sentenced. That credit must be deducted from the sentence and term of imprisonment and must include time spent in custody from a prior stay of imposition or execution of sentence. Minn. R. Crim

. P. 27.03, subd. 4

. “‘Must’ is mandatory.” Greene v. Comm’r of Minn. Dep’t of Human Servs. , 755 N.W.2d 713, 721 (Minn. 2008) (quotation omitted); see also Minn. Stat. § 645.44, subd. 15a (201 4 ). The district court therefore was required to announce Mahle’s jail credit and ded uct that time from his sentence and erred by declining to do so. Citing Minn. Stat. § 609.145, subd. 3 , t he state argu e s that the district court was not required to announ ce jail credit because the court did not commit Mahle to the12

commissioner and that “[d]istrict courts only need to announce jail credit when they are imposing a term of imprisonment.” Minnesota Statutes section 609.145, subd ivision 3 (2012) , provides:

When a person is to be committed to the commissioner, the person’s probation officer must provide to the court, prior to the sentencing hearing, the amount of time the person has in credit for prior imprisonment. The court must pronounce credit for prior impri sonment at the time of sentencing. Although t he mandate of section 609.145, subd ivision 3 , may be limited, the state’s argument is unpersuasive. The mandate of rule 27.03, subdivision 4 , is clear and broad. The rule re quires that the court announce jail cr edit “[w]hen pronouncing sentence” in all

cases. See Min n. R. Crim. P. 27.03, subd. 4

. We agree that Mahle has the right to know the jail credit that he will be given to enable him to decide whether to execute his sentence. The state makes arguments, as does Mahle, regarding the amount of jail credit to which Mahle may be entitled. We declin e to address those arguments, leaving the matter to be determined by the district court. Affirmed in part and remanded .