State v. Brown

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NOT DESIGNATED FOR PUBLICATION

No. 119,085

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DARRIS LEVELLE BROWN,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed March 1, 2019.
Reversed and remanded with directions.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Ellen Hurst Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., ATCHESON, J., and BURGESS, S.J.

PER CURIAM: Darris Levelle Brown appeals the district court's denial of his
request for additional jail credit. Brown contends, rather than crediting jail time to his
term of unrevoked postrelease supervision from an earlier case, the district court should
have awarded that same time as jail credit to his sentence in this case. We agree. Since
jail credit may not be applied to unrevoked terms of postrelease supervision, the district
court erred in denying Brown's motion. As a result, we reverse and order that the time
Brown was incarcerated between January 2014 and January 2015 be credited in this
current case.

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FACTUAL AND PROCEDURAL BACKGROUND

In January 2014, the State charged Brown with child abuse, aggravated battery,
interference with law enforcement, and four counts of misdemeanor battery. When he
committed the 2014 crimes, Brown was on postrelease supervision in a 2009 case—
09CR658. Brown was detained in the Saline County jail on January 12, 2014. One day
later, the Kansas Department of Corrections (KDOC) issued an arrest and detain order
against Brown for potentially violating the conditions of his postrelease supervision in his
2009 case. However, the KDOC never revoked Brown's postrelease supervision.

One year after the KDOC issued the detention order, Brown posted bond and was
released from custody on January 13, 2015. About two months later, the State moved to
revoke Brown's bond and the district court issued a bench warrant. Brown was placed
back in jail on April 21, 2015.

Brown pled no contest to amended charges of child abuse and misdemeanor
domestic battery in his 2014 case. On December 2, 2015, the district court sentenced
Brown to a controlling prison term of 84 months. The district court ordered this sentence
to run consecutive to Brown's 2009 sentence.

During sentencing, the parties disputed whether Brown should receive jail credit in
his 2014 case for the period between January 12, 2014, and January 13, 2015, which he
spent in jail on hold for potentially violating his postrelease supervision. The State argued
the jail time should be awarded in the 2009 case, and Brown argued the time should be
awarded to the 2014 case. The district court ordered the parties to prepare a journal entry
with the "correct jail time credit." Although the district court did not determine which
case the jail time should be credited, it noted that Brown was not entitled the jail credit on
both cases.
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After sentencing, the district court filed a journal entry of judgment. The journal
entry shows that Brown was awarded 225 days of jail credit towards his 2014 sentence.
The jail credit award reflects Brown's time served from April 21, 2015, to December 2,
2015. Importantly, the award does not include any credit for the time Brown served in jail
from January 12, 2014, to January 13, 2015. The journal entry does not reflect whether
this jail time was credited in Brown's 2009 case.

In August 2016, Brown sent a letter to the district court, requesting additional jail
credit to his sentence in the 2014 case. The district court held a hearing on Brown's
request. At this hearing, Brown argued he should receive additional jail credit for the time
served between January 12, 2014, and January 13, 2015.

Employees of the KDOC and Saline County Sheriff's Office testified at the jail
credit hearing. Lieutenant Lisa Graham testified that Brown was in jail from January 12,
2014, to January 13, 2015, on the 2014 case. The witnesses explained that on January 13,
2014, the KDOC placed a hold on Brown by issuing the detention order and obtaining a
subsequent warrant. The hold was in place until Brown completed the term of his
postrelease supervision on January 13, 2015. The witnesses confirmed that Brown's
postrelease supervision was never revoked.

Michelle Sullivan testified that Brown's completion of his postrelease period
triggered the KDOC to withdraw the postrelease violation warrant and lift its hold. As a
result, Brown was able to post bond and be released from jail on January 13, 2015.
Sullivan explained the KDOC credited Brown for the time served from January 12, 2014,
to January 13, 2015, towards satisfying his postrelease supervision period in the 2009
case.

After hearing the evidence, the district court denied Brown's request for additional
jail credit. The district court found that Brown's postrelease supervision was never
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revoked. However, the district court determined that Brown was not entitled to receive
the additional jail credit because the time served between January 12, 2014, and January
13, 2015, was credited in the 2009 case. Brown appeals.

ANALYSIS

On appeal, Brown contends the district court erred by denying his request for
additional jail credit to his sentence in the 2014 case. Brown argues that because his
postrelease supervision was never revoked, the district court was required to credit the
time he served in jail from January 12, 2014, to January 13, 2015, to his sentence in the
2014 case. The State responds that the district court properly denied Brown's request for
jail credit because "the record establishes that Brown had already received the disputed
days as credit against a term of unrevoked post-release supervision."

Our review of the district court's jail credit award requires interpreting the Kansas
Sentencing Guidelines Act. Interpretation of sentencing statutes is a question of law over
which we exercise unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d
1098 (2015).

Kansas provides a statutory right to jail time credit. State v. Hopkins, 295 Kan.
579, 581, 285 P.3d 1021 (2012). Under K.S.A. 2017 Supp. 21-6615(a), a defendant's
sentence starting date is computed to allow credit for "the time which the defendant has
spent incarcerated pending the disposition of the defendant's case." Our Supreme Court
has clarified that a defendant is entitled to jail credit for all time held in custody solely on
the charge for which the defendant is being sentenced. State v. Harper, 275 Kan. 888,
890, 69 P.3d 1105 (2003).

There is no statutory right for credit beyond the time an individual is incarcerated
in jail. State v. Lofton, 272 Kan. 216, 217-18, 32 P.3d 711 (2001). Instead, a defendant
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receives one day of credit towards a sentence for each day spent in pretrial detention. A
defendant may not receive double credit for time served in pretrial detention on multiple
cases. See 272 Kan. at 217-18 (defendant not entitled to credit for pretrial detention
towards each of two sentences to be served consecutively, since that would result in a
double counting).

This court has repeatedly held that a defendant may not receive jail credit towards
an unrevoked term of postrelease supervision for time spent incarcerated on a new charge
which results in a conviction and sentence. White v. Bruce, 23 Kan. App. 2d 449, Syl. ¶ 2,
932 P.2d 448 (1997); State v. McLemore, No. 116,119, 2017 WL 6625552, at *2 (Kan.
App. 2017) (unpublished opinion) (listing cases). Instead, postrelease supervision is
suspended until the completion of the new sentence, unless the State revokes that
supervision. 2017 WL 6625552, at *2.

Here, the district court determined that Brown received jail credit from January 12,
2014, to January 13, 2015, on his term of unrevoked postrelease supervision in the 2009
case. But Brown's incarceration in January 2014 suspended his postrelease supervision.
As a result, Brown was not serving his postrelease supervision term during the time he
was in jail. See State v. Watkins, No. 96,218, 2007 WL 2178070, at *3 (Kan. App. 2007)
(unpublished opinion). Because Brown's postrelease supervision was never revoked, the
period of jail time at issue was credited to a sentence that Brown was never ordered to
serve. McLemore, 2017 WL 6625552, at *2. The district court erred by allowing the jail
time to be credited towards Brown's term of unrevoked postrelease supervision in the
2009 case.

Since Brown was not serving his postrelease supervision term, he was incarcerated
from January 12, 2014, to January 13, 2015, solely on the charges in the 2014 case.
Accordingly, Brown was entitled to receive credit for that jail time towards his sentence
in this 2014 case. The action of KDOC in crediting this time against Brown's postrelease
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supervision term, was in derogation of Kansas law. See McLemore, 2017 WL 6625552,
at *2. The district court erred by denying Brown's request for additional jail credit to his
sentence in the 2014 case.

The district court's order denying Brown's motion for additional jail time is
reversed. It is ordered that the time served from January 12, 2014, to January 13, 2015, be
credited towards Brown's sentence in this 2014 case. It is also ordered that any jail time
credited towards Brown's postrelease supervision term in the 2009 case for time served
during this period be set aside. See State v. Blazier, No. 116,148, 2017 WL 3575656, at
*2 (Kan. App. 2017) (unpublished opinion) ("When [the] potential for double credit
arises, a court may correct the amount of jail time credit after sentencing."); also see State
v. Storer, 53 Kan. App. 2d 1, 5, 382 P.3d 467 (2016) (reasoning that K.S.A. 22-3504[2]
allows a court to correct clerical mistakes, such as most jail credit determinations, at any
time).

Reversed and remanded with directions.