Opinion
112,398.
08-14-2015
STATE of Kansas, Appellee, v. Michael SHIRLEY, Appellant.
Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant. Laura L. Miser, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.
Laura L. Miser, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michael Shirley appeals the amount of jail time credit awarded by the district court following his convictions; for using a communication device to conduct a drug transaction and for possession of drug paraphernalia.
The right to jail time credit is purely statutory. Shirley's appeal requires us to interpret and apply the language of the jail time credit statute, K.S.A.2014 Supp. 21–6615. This is an issue of law over which our review is unlimited. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). We review Shirley's challenges to the trial court's factual findings by applying the substantial competent evidence standard. See State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009).
Typically, a defendant confined pending his or her conviction and sentencing may receive credit for time served in confinement. K.S.A.2014 Supp. 21–6615(a) states in pertinent part:
“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 by the court in the sentencing order of the journal entry of 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. ” (Emphasis added.)
Jail time credit is earned only for the time spent in jail solely on account of the offenses for which the defendant is being sentenced. See State v. Lofton, 272 Kan. 216, 217–18, 32 P.3d 711 (2001) ; State v. Calderon, 233 Kan. 87, 97–98, 661 P.2d 781 (1983).
Shirley was charged with various drug crimes arising out of events in January 2013. He spent time in jail at various times during 2013 awaiting disposition of his case. In October 2013, the State amended the charges to the present charges of using a communication device to conduct a drug transaction and possessing drug paraphernalia. Shirley was arrested on these amended charges in December and briefly jailed. This is the case that is the subject of this appeal.
Four days after Shirley was released on bond, he was charged and arrested for a firearms violation in a second case. He remained in jail on that separate charge until February 28, 2014.
On that day, February 28, 2014, Shirley appeared before the district court on both cases for plea hearings. Pursuant to a plea agreement with the State, Shirley pled guilty to the charges outlined above in the present case, and the State dismissed the charges in the other case for which Shirley had been held in jail.
In the present and only remaining case, the district court imposed prison sentences but granted Shirley probation. The district court granted 51 days' jail time credit for the various times Shirley spent in jail on these charges. But Shirley requested additional jail time credit for the time he spent in custody on the case that was dismissed as part of the plea deal. In denying jail time credit for the time spent in jail on the now-dismissed case, the trial court stated:
“Well, if [the other case] was dismissed as part of the plea bargain, the correct answer is, you don't get credit for that other case because that's part of the negotiation of the case. And even though it may have been an unintended consequence, the State could have proceeded with that case and asked for separate credit or consecutive sentences. And that fact that the case was dismissed, I mean, that's just, I guess for lack of a better word, that's the price of doing business.”
On appeal, Shirley argues he should be given credit for his time in jail for the dismissed case because it was part of the plea bargaining process, and it should be considered part of the “disposition of the defendant's case” pursuant to K.S.A.2014 Supp. 21–6615(a). Shirley argues we should liberally construe criminal statutes in his favor to support his argument. See State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014) (as a general rule, criminal statutes are strictly construed in favor of the accused).
We are not persuaded by Shirley's application of the phrase “defendant's case” to his situation. There is no indication that his two cases were ever consolidated. The two cases did not arise from the same or a similar factual scenario. Further, there is no indication that Shirley's bond in the present case was ever revoked, which would have resulted in him being held in jail on account of both cases.
In Campbell v. State, 223 Kan. 528, 575 P.2d 524 (1978), the court recognized the concept of “dead time” but found the concept was not applicable in that case. The Campbell court stated:
“The cases cited and relied upon by defendant are readily distinguishable because they involve ‘dead time,’ earlier sentences served or partially served as a result of convictions later vacated, time spent awaiting trial on charges which were dismissed, and the like. We have carefully considered the record before us and hold that Campbell has not been deprived of any constitutional or statutory rights, and that the record conclusively shows that he is entitled to no relief.” 223 Kan. at 531.
In State v. Wheeler, 24 Kan.App.2d 616, 949 P.2d 634 (1997), rev. denied 264 Kan. 824 (1998), the defendant was charged and held in the Johnson County jail for indecent solicitation of a child. The charge was based on the allegation that while he was in Sedgwick County, he sent a letter to a boy in Johnson County soliciting sex acts. Wheeler was in the Johnson County jail on this charge from January through most of July. In June, while still in the Johnson County jail, Wheeler was charged with indecent liberties in Sedgwick County. He was arrested on this charge in July while still in the Johnson County jail. He was transported to Sedgwick County in late July, and the Johnson County charge was dismissed.
Later, Wheeler pled guilty to the Sedgwick County charge and was sentenced to prison. Wheeler claimed he was entitled to credit for the time he spent in custody in Johnson County before being transferred to Sedgwick County. The Wheeler court stated that jail time credit is earned only for the time spent in jail solely on account of the offenses for which the defendant is sentenced and “[j]ail time credit is not earned under K.S.A. 21–4614 for time spent in jail solely on account of charges which are then dismissed.” 24 Kan.App.2d. at 620. The court acknowledged Wheeler's frustration:
“Incarceration awaiting trial on a case that is dismissed is sometimes troubling. However, there is no constitutional or statutory remedy under these facts upon which Wheeler may call. There is no showing of irregular proceedings or actions. There is nothing in the record to support a finding of cruel or unusual punishment.” 24 Kan.App.2d at 620.
This “dead time” concept has been applied with similar results in other cases. See Brodie v. State, 1 Kan.App.2d 540, 571 P.2d 53 (1977) ; State v. Rains, No. 94,385, 2006 WL 1668773 (Kan .App.2006) (unpublished opinion).
Shirley's interpretation of the concept of “defendant's case” does not comport with the statutory provisions governing the application of jail time credit. Shirley would have us treat the days spent in jail on a charge like frequent flyer points that can be applied to a jail sentence in some other case. That is not how it works. The district court awarded the correct amount of jail time credit pursuant to K.S.A.2014 Supp. 21–6615(a).
Affirmed.