Background
Anthony Barse was charged with robbery and reckless endangerment in December 2024. He was arrested on December 18, 2024, while on parole for a prior conviction. Unable to post bond, Barse remained in custody, and his parole was revoked shortly after arrest — with his attorney acknowledging he was returned to the penitentiary on his prior conviction on December 23, 2024.
In June 2025, the robbery charge was amended to aggravated assault, and Barse pleaded guilty to both aggravated assault and reckless endangerment. The district court sentenced him to five years on the assault count and two years on the endangerment count, to run consecutively to each other and to a separate sentence not on appeal. The court denied any credit for the approximately 188 days Barse spent in custody between his arrest and sentencing, finding he had been held on a parole hold for his prior conviction rather than as a result of the new charges.
Barse appealed, arguing the denial of credit for time served violated N.D.C.C. § 12.1-32-02(2), and contending the State bore the burden of proving by a preponderance of the evidence any facts relied upon to deny that credit.
The Court’s Holding
The North Dakota Supreme Court affirmed the sentence. The court reaffirmed its longstanding rule that the burden falls on the defendant — not the State — to demonstrate entitlement to additional credit for time served. Citing a consistent line of precedent including Schrum, Brewer, Gust, and others, the court held Barse failed to meet that burden, having presented no evidence establishing the date his parole was revoked or showing he had not already received credit against his prior sentence for the disputed custody period.
The court rejected Barse’s argument that State v. Gill, which placed the burden on the State to prove the amount of restitution, applies equally to the denial of credit for time served. The court distinguished the two: restitution imposes an additional condition on the defendant, whereas credit for time served concerns whether time already spent in custody on an unrelated matter should count toward a new sentence. The court declined to extend Gill‘s burden-shifting framework to this context.
The court also noted that under its precedent, a defendant is not entitled to credit for time served on a wholly unrelated charge, nor to double credit in the context of consecutive sentences. Because Barse’s custody after December 23, 2024 was attributable to his parole revocation — not to the pending charges — and because he offered no evidence to the contrary, the district court did not abuse its discretion.
Key Takeaways
- Under N.D.C.C. § 12.1-32-02(2), credit for time served is required only for custody resulting from the charge or conduct at issue — time served on a parole hold for an unrelated prior conviction does not qualify.
- The burden to prove entitlement to credit for time served rests on the defendant, not the State — a defendant must affirmatively establish the factual basis for any credit claimed.
- State v. Gill‘s preponderance-of-the-evidence burden on the State is limited to restitution determinations and does not extend to disputes over credit for time served.
- A defendant held on a parole revocation hold may at most be entitled to credit for the narrow window between arrest and the date of formal revocation, and must present evidence to establish even that limited entitlement.
Why It Matters
This decision clarifies the allocation of proof in credit-for-time-served disputes in North Dakota. Defense counsel seeking credit for pre-sentencing custody — particularly where a client is also subject to a parole or probation hold — must come to sentencing with evidence establishing that the custody was causally tied to the new charges rather than to the prior case. Silence or bare argument will not suffice.
The ruling also cabins Gill to its restitution context, foreclosing a potentially broad argument that would have placed on prosecutors the burden to disprove a defendant’s credit claims whenever they invoke a parole-hold rationale. Courts and practitioners in North Dakota now have clear guidance that the defendant’s burden of proof in this area remains intact and is not displaced by the State’s reliance on parole-revocation facts at sentencing.