Opinion
No. 106,578.
2012-11-2
STATE of Kansas, Appellee, v. Joel HEIL, Appellant.
Appeal from Saline District Court; Rene S. Young, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Rene S. Young, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM.
Joel Heil appeals from the denial of his postsentencing motion for jail credit arising from his confinement following his guilty plea to one count of aggravated assault. We reverse and remand with directions.
In August 2010, Heil was charged in Saline County District Court with two counts of aggravated assault. Very shortly thereafter, Heil pled no contest to one count of aggravated assault. In exchange for the plea, the State agreed to dismiss the other aggravated assault charge and to recommend a dispositional departure to probation. The court accepted Heil's plea.
On October 8, 2010, the district court sentenced Heil to 24 months' probation, with an underlying prison term of 27 months and 12 months of postrelease supervision. The court granted Heil probation, even though at the time of the assault he was serving postrelease supervision for a prior felony. Heil's 2010 sentence was ordered to be served consecutive to his prior sentence in Saline County Case No. 06CR712. The court ordered Heil to report to community corrections for postrelease supervision following his release from the Department of Corrections (DOC). At the sentencing hearing, the court indicated Heil was entitled to jail credit on the current sentence but did not specify the time that would be credited. The subsequent journal entry did not award any jail credit.
On November 12, 2010, Heil filed a motion for jail credit for the time he spent in the Saline County jail from August 26, 2010, to October 19, 2010. The State filed a motion opposing jail credit based on information from the KASPER offender website claiming that Heil had been given jail credit toward his postrelease supervision in his 2006 case.
During a hearing, the State conceded Heil's postrelease supervision for the 2006 case was not immediately revoked when the 2010 case was filed. However, the State asserted Heil could not receive jail credit for both the 2006 and 2010 cases. During the arguments, the court opined that Heil was entitled to jail time credit and counsel seemed to agree that if any error existed, it was committed by the DOC. At the conclusion of the hearing, however, the court denied the motion for jail credit, finding Heil was not entitled to jail credit on both sentences. Heil timely appealed.
The right to jail time credit is statutory. Jail time credit must be determined by the district court and stated in the journal entry at the time of sentencing. State v. Theis, 262 Kan. 4, 7, 936 P.2d 710 (1997). In part, Heil's appeal requires the court to interpret and apply the language of K.S.A. 21–4614. Statutory interpretation raises a question of law, reviewable on an unlimited basis by this court. State v. Storey, 286 Kan. 7, 9–10, 179 P.3d 1137 (2008); State v. Prebble, 37 Kan.App.2d 327, 328, 152 P.3d 1245 (2007). To the extent Heil's appeal challenges the district court's factual findings, this court must determine if those facts are supported by substantial competent evidence. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009).
Typically, a defendant confined pending his conviction and sentencing may receive credit for time served in confinement. This general rule is set out at K.S.A. 21–4614(a), which states:
“In any criminal action in which the defendant is convicted ..., the judge, if the judge sentences the defendant to confinement, shall direct that for the purpose of computing defendant's sentence and parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated in the sentencing order of the journal entry of judgment or the judgment ..., such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant's case.”
In objecting to jail credit, the State argues that the DOC—perhaps improperly—gave Heil credit for his jail time when it revoked his 2006 postrelease supervision term. Thus, the State argues Heil should not receive jail credit twice because of the DOC's action. In objecting to the motion for jail credit, the State relies on a printout from the KASPER website and on hearsay statements made by a DOC representative to the prosecutor. The KASPER website states when the DOC issued a warrant on Heil's 2006 case—a few days before his arrest in the present case. However, nothing in that printout reflects any jail credit that Heil may have received in the revocation of his postrelease supervision.
No case cited by the parties is helpful. In State v. Smith, 33 Kan.App.2d 554, 105 P.3d 738,rev. denied 279 Kan. 1010 (2005), the defendant was convicted and sentenced in 2003 on weapons charges. At the time of the 2003 conviction, the defendant had been on probation in a 2002 case. While in custody pending the 2003 charges, defendant's 2002 probation was revoked. When sentencing the defendant on the 2003 charges, the district court initially awarded the defendant 92 days of jail credit. The State objected, noting that the defendant had received credit for a portion of his incarceration in the 2002 case. Accordingly, the court revised the jail credit and awarded the defendant 28 days for the later charges. The court found that changing the amount of jail credit to avoid giving “double credit” was not an illegal modification of a pronounced sentence. Smith, 33 Kan.App.2d at 555–56.
While Smith reflects that changing the amount of jail time credit does not constitute a sentence “modification,” the court never addressed the issue of whether the credit was properly applied to the older sentence. Instead, the court focused on the court's ability to adjust the credit once it determines the calculation would constitute a “double credit.” Moreover, there was no dispute the defendant had received credit in the other case because the probation was revoked (and credit determined) in that earlier case. Smith, 33 Kan.App.2d at 555.
Heil, in contrast, relies upon White v. Bruce, 23 Kan.App.2d 449, 932 P.2d 448,rev. denied 262 Kan. 970 (1997), and State v. Watkins, No. 96,218, 2007 WL 2178070 (Kan.App.2007) (unpublished opinion). In White, this court reversed a district court order requiring the DOC to give an inmate jail time credit toward his postrelease supervision term for time he spent in custody on new charges. 23 Kan.App.2d 455. In this case, it was undisputed that the defendant's postrelease supervision was revoked after he was sentenced on the new charges and that the defendant received credit for the entire time of the pretrial custody on his new sentence. The essence of White, however, was whether the inmate was entitled to jail credit on postrelease under K.S.A. 22–3717(r). This court disagreed with the inmate's argument by holding that postrelease supervision could not be served while a defendant is in custody on other charges. Again, that is not the factual scenario or legal basis for the arguments in this case.
Watkins likewise is of little assistance in resolving this issue. In Watkins, the defendant was on postrelease supervision for a 2002 conviction when he was arrested in 2004 on new charges. The day after the defendant's arrest, the DOC used a warrant for Watkins' arrest. At his sentencing for the 2004 charges, Watkins requested jail credit for the time he was in pretrial incarceration. The court only awarded him credit for the 1 day he was in jail before the DOC warrant was filed. The court reasoned the DOC would award the remaining credit on this 2002 sentences. On appeal, this court concluded that based on White, the defendant would not be entitled to jail credit on his postrelease supervision term; consequently, it was erroneous for the court to not award the jail credit on the recent charges. Watkins, 2007 WL 2178070, at *2–3.
In Watkins, the State attempted to add a copy of the KASPER search and a DOC computation worksheet as an appendix to its appellate brief. The court declined to consider that evidence because it was not properly presented to the district court. Watkins, 2007 WL 2178070, at *3.
The consensus from these cases is: First, a defendant is not entitled to jail credit on a postrelease supervision term when the incarceration is based on new charges; and second, a defendant should not receive jail credit on both the postrelease supervision and the new sentence, and it is not an illegal modification if the court adjusts jail credit to avoid duplicate awards.
The ultimate question is whether the State actually presented sufficient evidence to establish that Heil had already received credit from the DOC on his 2002 sentence. The KASPER printout does not clearly establish what “credit,” if any, Heil received when his postrelease supervision was revoked. Moreover, there are no affidavits or other documentation from the DOC showing that such credit was actually awarded.
Heil is statutorily entitled to jail time credit for his 2010 incarceration under K.S.A. 21–4614. The district court implicitly found Heil had already received jail credit on the earlier sentence. However, the State failed to present sufficient evidence to support its claim that awarding jail credit in this case would actually result in a duplication. Accordingly, the district court's denial of Heil's motion for jail credit is reversed and the case remanded for a determination of the amount of jail credit to which Heil is entitled.
Reversed and remanded with directions.