Opinion
A21-0204
07-21-2021
State of Minnesota, Respondent, v. Timothy Lee Biby, Appellant.
ORDER OPINION
Scott County District Court
File No. 70-CR-18-8338 Considered and decided by Bratvold, Presiding Judge; Connolly, Judge; and Hooten, Judge.
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant Timothy Lee Biby challenges the district court's decision to resentence him to 190 months in prison for his conviction of attempted first-degree murder, and to deny him an extra day of custody credit. A jury found Biby guilty of attempted first-degree murder after he used his car to run down a motorcyclist he mistook as his ex-wife's boyfriend. He was convicted and sentenced to 190 months. He appealed his sentence, which we reversed for being calculated with an incorrect criminal history score. State v. Biby, No. A19-1551, 2020 WL 3638789 (Minn. App. July 6, 2020), review denied (Minn. Oct. 1, 2020). On remand, he requested resentencing to 180 months and an extra day of custody credit. The district court resentenced him to 190 months. It did not explicitly address Biby's argument for the credit, but we must assume that it implicitly rejected it. Palladium Holdings, LLC v. Zuni Mortg. Loan Trust 2006-OA1, 775 N.W.2d 168, 177-78 (Minn. App. 2009), review denied (Minn. Jan. 27, 2010). Biby appeals.
2. The Minnesota Sentencing Guidelines prescribe sentences "presumed to be appropriate for all typical cases sharing criminal history and offense severity characteristics," which a district court must follow unless grounds exist for departing. Minn. Sent. Guidelines 1.B.13 (2017); see State v. Edwards, 774 N.W.2d 596, 601 (Minn. 2009). The presumptive sentence consists of a recommended fixed duration surrounded by a range of lengths "15 percent lower and 20 percent higher than the fixed duration," all of which are presumed acceptable. Minn. Sent. Guidelines 1.B.13.b, c (2017). We review a district court's sentencing decisions for an abuse of discretion. State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014); see also Minn. Stat. § 244.11, subd. 2(b) (2016). We "will not generally review a district court's exercise of its discretion to sentence a defendant when the sentence imposed is within the presumptive guidelines range." State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010).
3. The district court resentenced Biby, with a corrected criminal history score of zero, to 190 months because "[a]t a criminal history score of zero, the Minnesota Sentencing Guidelines call for a sentence range of 153-216 months," and "[t]he previously imposed sentence remain[ed] within the range allowed for under the guidelines."
4. Biby argues the that district court abused its discretion because its rationale for 190 months was improper under Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) and State v. Provost, 901 N.W.2d 199 (Minn. App. 2017). Both cases addressed a court's refusal to resentence a defendant whose original sentence was calculated with an incorrect criminal history score. Molina-Martinez, 136 S. Ct. at 1343-44; Provost, 901 N.W.2d at 201. The Fifth Circuit in Molina-Martinez and the district court in Provost both concluded that the defendant did not need resentencing because the original sentence fell within the guideline's presumptive range calculated with the correct criminal history score. 136 S. Ct. at 1344-45; 901 N.W.2d at 201. The Supreme Court reversed the Fifth Circuit, holding that the guideline ranges' empirically proven influence on district courts' sentencing decisions meant that a sentence based on an incorrect range injured the defendant. 136 S. Ct. at 1345-46. We likewise reversed the district court in Provost, endorsing the reasoning in Molina-Martinez and holding that a sentence based on an incorrect criminal history score is illegal and requires resentencing. 901 N.W.2d at 202. Both cases endorsed the reasoning that the only way to correct a sentence in this circumstance was for the district court to reconsider its decision, anchored by the correct range. 136 S. Ct. at 1345-46; 901 N.W.2d at 202.
5. We disagree with Biby's argument that the district court failed to follow this case law in resentencing him. The district court resentenced Biby while avoiding the concerns animating Molina-Martinez and Provost by explicitly considering and anchoring its decision in the context of Biby's reduced criminal history score. Biby received the benefit of resentencing with a correct score, as required by Provost, and the district court did not rely on the improper rationale for refusing to resentence that Provost rejected. 901 N.W.2d at 201-02.
6. Biby also argues that the district court offered insufficient reasons for refusing to impose a shorter sentence. We disagree. A district court need not offer any reasons for resentencing within the presumptive guideline range, and we will not reverse a resentencing decision within the presumptive range absent a clear showing that the district court considered improper factors. State v. Theisen, 363 N.W.2d 867, 869 (Minn. App. 1985). In fact, during the resentencing hearing, the state argued that "[Biby's] conduct deserves 190 months." We may assume that the district court considered and agreed with the state even though it did not explicitly say so. See State v. Hatton, 409 N.W.2d 854, 856 (Minn. 1987) (affirming the district court's sentencing decision when it agreed with the state's argument that the defendant's conduct warranted that sentence). The district court did not err by resentencing Biby within the presumptive guideline range.
7. Biby next argues that the district court erred when it refused to award him another day of custody credit for his day in a hospital just before his arrest. We review a district court's decision whether to award custody credit as a mixed question of law and fact. State v. Roy, 928 N.W.2d 341, 344 (Minn. 2019). "The district court does not have discretion on whether to award custody credit." Id. Rather, a defendant has a right to credit for each day spent in custody in connection with the offense being sentenced, id. at 345 (citing Minn. R. Crim. P. 27.03, subd. 4(B)), which covers time spent in jails, workhouses, regional correctional facilities, and their functional equivalents, Asfaha v. State, 665 N.W.2d 523, 528 (Minn. 2003). The burden lies with the defendant to show that he is entitled to custody credit. Roy, 928 N.W.2d at 344. We conclude that the district court did not err.
8. In the days following his attack on the motorcyclist, Biby sent his ex-wife a note admitting that he tried to kill a man on a motorcycle and implying that he planned to kill himself. She called the Scott County Sheriff's Office to request a welfare check on Biby, and the deputy who answered the phone referred the welfare check to the St. Paul Police Department to check on Biby at his St. Paul home. Following the welfare check, the police took Biby to the Regions Hospital Emergency Department at about 1 p.m., where Biby told hospital staff that he tried to overdose on medications and was experiencing suicidal ideation. The staff placed him on a 72-hour mental health hold.
9. Notes by the hospital staff are the only information in the record regarding interactions between Biby and the police during Biby's hospitalization. Scott County Detective Michael Schultz, who had been investigating Biby for the hit and run and knew that Biby was in the hospital, came to the hospital about 1:18 p.m. and informed hospital staff that he suspected Biby in the attack. In medical notes for Biby, the staff reported that Detective Schultz "request[ed] to be kept apprised of [Biby's] status - if [he was] going to be admitted or not." The staff also noted that Detective Schultz had not yet reported whether Scott County planned to take Biby into custody while hospitalized. At 3:02 p.m., the staff reported, "[i]t is unclear if they will arrest [Biby]. At this time, there is a deputy staying with [Biby], it appears they do want to charge [him] but this has not been determined at this time." The staff also reported, "[Biby] unable to be placed on bed board - cannot go to floor with deputy, cannot go to jail cell unless under arrest. [Biby] to stay in the [Emergency Department] for the night." At 3:59 p.m., staff reported, "[p]er Scott Co. Deputy, [Biby] has nothing left to lose and would be placed on suicide watch at the jail in Scott Co. He is currently working with Det. Schultz and Scott Co. Officials re: [Biby's] current legal status." They also stated that "[Biby] thinks he has a 'long road ahead of [him]', referencing to Sheriff deputy present in his exam room." The staff confirmed that they would "contact county in the AM to determine county's intentions." At 9:37 a.m. the next morning (less than 24 hours after Biby's hospitalization), the staff decided to discharge Biby into the custody of Scott County and transport him to Scott County jail for booking. The staff also rescinded the 72-hour hold.
10. Biby argues that during his stay in the hospital, he was in custody in connection to the attempted murder offense because there was a deputy posted to his room who prevented him from leaving the room, and Detective Schultz made plans with the hospital staff ensuring that Biby could only leave in police custody. Biby therefore argues that he was effectively in a jail cell. We disagree. The hospital staff notes equivocate about the detective's plans or intent to arrest Biby, repeatedly suggesting throughout the day that Detective Schultz had not decided to arrest Biby at that time, and showing that as late as 4:00 p.m., the deputy in Biby's room continued to work with Detective Schultz and Scott County to decide Biby's fate. The notes also suggest that by the close of the day, Detective Schultz had not decided to arrest Biby, because the staff planned to contact the county the next morning about its intentions. The notes show that Detective Schultz did not formally arrest Biby until the hospital discharged him the next morning.
11. Further, the evidence fails to show that the deputy in Biby's room restricted his freedom so that he was in custody. See State v. Olson, 634 N.W.2d 224, 229 (Minn. App. 2001) (defining "in custody" as "when an objectively reasonable person in the place of the detainee would believe that he or she was in custody"), review denied (Minn. Dec. 11, 2001). The notes provide scant details about the deputy's actions towards Biby. The last medical note mentioning the deputy was at 3:59 p.m. That note confirmed that the deputy was still in Biby's hospital room, but the record does not disclose whether the deputy stayed at the hospital overnight. Rather, at that time, staff noted that Biby would remain at the hospital overnight, on his 72-hour mental health hold, until Scott County decided whether to arrest him. These notes do not prove that the deputy held Biby in custody. There is no evidence that the deputy did or said anything that led Biby to believe he was in custody. Id. Based on this record, the district court did not err by concluding that Biby was not in custody.
12. Nor did it err by concluding that Biby was not held in the functional equivalent of a jail, workhouse, or prison—the other factor necessary for custody credit. Asfaha, 665 N.W.2d at 528. Under Asfaha, the relevant inquiry requires us to consider the security of the facility, the control and restrictions on inmate freedom, and the surveillance of inmates to determine whether a facility is the functional equivalent of a jail, workhouse, or prison. Id. at 528. The only evidence about Biby's hospitalization comes from the hospital staffs' notes, which do not discuss the level of confinement or restrictions Biby experienced. There is no evidence that Biby experienced confinement equivalent to those facilities so that he deserved custody credit. Roy, 928 N.W.2d at 344
13. Biby also argues that denying custody credit here risks calling into doubt the routine granting of credit for defendants hospitalized in other circumstances. We disagree. Biby was not in the same position as the defendants he cites as examples: those hospitalized after arrest, on medical furlough for cancer treatment during pretrial confinement, or incarcerated and receiving prenatal care. Those defendants are undeniably in state custody before hospitalization, while the county did not arrest Biby before his hospitalization or furlough him from a prison or jail to go to the hospital.
14. Biby next argues that denying custody credit here conflicts with the notions of fairness and proportionality that guide credit determinations under Minn. R. Crim. P. 20.01, subd. 11, and State v. Bonafide, 457 N.W.2d 211, 213 (Minn. App. 1990). We disagree. Bonafide and rule 20.01, guided by proportionality and fairness, establish that a defendant hospitalized due to a competency assessment or civil commitment ordered pretrial has a right to receive the same custody credit that non-hospitalized defendants receive while in jail awaiting trial. 457 N.W.2d at 213-215; Minn. R. Crim. P. 20.01, subd. 11. It is neither unfair nor disproportionate to deny Biby credit because he was not hospitalized while in custody awaiting trial, or due to a competency assessment or civil confinement ordered pretrial. Biby was therefore not in a similar position to defendants covered by that opinion and rule.
IT IS HEREBY ORDERED:
1. The district court's order is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.
Dated: 7/21/21
BY THE COURT
/s/_________
Judge Carol A. Hooten