State v. Henson

1

NOT DESIGNATED FOR PUBLICATION

No. 112,989

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JACOB D. HENSON,
Appellant.

MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed January 8, 2016.
Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Daniel D. Gilligan, assistant district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before MCANANY, P.J., POWELL, J., and DAVID J. KING, District Judge, assigned.

Per Curiam: Jacob D. Henson appeals the district court's order denying his
request for additional jail time credit. Henson was arrested and charged with multiple
drug crimes and interference with a law enforcement officer. These crimes occurred
while Henson was released on bond and awaiting sentencing in another case.

Henson was held at the Reno County jail awaiting trial in this case. He spent the
remaining time in the custody of the Department of Corrections (DOC) serving the prison
sentence imposed in the other case. He was returned from DOC to the Reno County jail
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about five times for pretrial hearings in this case. Altogether, Henson spent 46 days in the
Reno County jail before his sentencing in this case.

Eventually Henson pled guilty to the various charges. The district court sentenced
Henson to 28 months' imprisonment to be served concurrently with his 24-month prison
sentence in his other case. The district court granted Henson 46 days of jail time credit.

Henson then moved the district court to correct his sentencing journal entry,
arguing that the district court's determination of the sentence start date was incorrect. At
the hearing on Henson's motion the district court denied relief, finding the original
journal entry gave "credit for time served which is for time he served solely on this case
and not any other case." Henson appeals, contending he was entitled to jail time credit for
the entire period between his arrest and sentencing.

Henson's claim to additional jail time credit raises an issue of law over which our
review is unlimited. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). To the
extent Henson contests the district court's factual findings, we apply the substantial
competent evidence standard. See State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446
(2009).

The right to jail time credit is purely statutory. State v. Taylor, 24 Kan. App. 2d
80, 82, 941 P.2d 954, rev. denied 262 Kan. 969 (1997). Generally, a criminal defendant is
entitled to jail time credit for time served in confinement during the pendency of his or
her case. A defendant's sentence start date must "be established to reflect . . . the time
which the defendant has spent incarcerated pending the disposition of the defendant's
case." K.S.A. 2014 Supp. 21-6615(a). "[A] defendant is entitled to jail time credit only
for time held in custody solely on account of those charges for which he is now being
sentenced." 24 Kan. App. 2d at 82 (citing State v. Calderon, 233 Kan. 87, 97-98, 661
P.2d 781 [1983]; Campbell v. State, 223 Kan. 528, 530-31, 575 P.2d 524 [1978]).
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Henson relies on White v. Bruce, 23 Kan. App. 2d 449, 932 P.2d 448, rev. denied
262 Kan. 969 (1997). White, which involved the calculation of postrelease supervision
time, does not apply, but the reasoning it employs supports the State's position, not
Henson's. In White, the defendant completed his prison sentence and was released to
serve 24 months of postrelease supervision. While on postrelease supervision, the
defendant committed a new crime and was sentenced to 12 months' imprisonment. The
district court granted the defendant jail time credit against his 12-month sentence for the
period between his arrest and sentencing. But the court also granted the defendant credit
against his postrelease term for the period between his arrest and the date on which his
postrelease supervision was revoked, which occurred following his conviction.

On appeal, this court reversed, stating that "the central issue is whether an inmate
can serve an unrevoked term of postrelease supervision while incarcerated." 23 Kan.
App. 2d at 453. The defendant's postrelease supervision was interrupted and suspended
by his reincarceration. Although his postrelease supervision had not yet been revoked, the
defendant was no longer serving postrelease supervision during the time he was held on
new criminal charges. Thus, "the time spent incarcerated did not vest as credit against
[the defendant's] postrelease supervision term." 23 Kan. App. 2d at 455.

In circumstances such as Henson's, the Kansas rule is clear: The district court
only grants jail time credit for the period of time during which the defendant is being held
in custody solely on account of the charge for which he is being sentenced. Henson's time
incarcerated in the custody of the DOC was for an unrelated conviction. Henson was not
entitled to jail time credit for the entire period between his arrest and sentencing, but only
for the time he was held in the Reno County jail on these charges. The district court's
findings were appropriate, and the district court did not err in denying Henson's request
for additional jail time credit.

Affirmed.
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* * *

POWELL, J., concurring: While I agree with the majority that Henson's appeal
seeking additional jail credit lacks merit, I write separately to express my view that we
lack jurisdiction to consider the merits of Henson's jail credit claim and, therefore, I
would dismiss his appeal. Although not argued by either party, this court has the duty to
question jurisdiction on its own, and if jurisdiction is lacking, then our duty is to dismiss
the appeal. State v. J.D.H., 48 Kan. App. 2d 454, 458, 294 P.3d 343, rev. denied 297 Kan.
1251 (2013).

"The right of appeal is entirely a statutory right; no appellate review is required by
the United States Constitution or the Kansas Constitution. [Subject to certain exceptions,]
this court has no jurisdiction to entertain an appeal . . . unless the defendant appeals
within the time prescribed by the statutes." 48 Kan. App. 2d at 458. Under K.S.A. 2014
Supp. 22-3608(c), a criminal defendant has 14 days from sentencing to file a notice of
appeal. See Wahl v. State, 301 Kan. 610, 615, 344 P.3d 385 (2015) (noting 14-day period
for appeal runs from sentencing date). Moreover, if a notice of appeal is not filed within
the statutory time period, then the appeal must be dismissed for lack of jurisdiction. State
v. Hemphill, 286 Kan. 583, 588, 186 P.3d 777 (2008).

Jail credit is part of a defendant's sentence and "'[j]ail time credit' must be
determined by the sentencing court and included in the journal entry at the time the trial
court sentences the defendant to confinement." State v. Theis, 262 Kan. 4, 7, 936 P.2d
710 (1997) (citing State v. Fowler, 238 Kan. 326, 335, 710 P.2d 1268 [1985]); see K.S.A.
2014 Supp. 21-6615(b). Because jail credit is part of a defendant's sentence and because
Henson never filed an appeal from his sentence and jail credit determination, his appeal
of the jail credit issue is barred.

5

The fact that Henson timely appealed from the district court's denial of his motion
seeking additional jail credit is of no help to him either as I question the validity of a
postsentencing motion for jail credit as it does not exist in the Kansas code of criminal
procedure. Recognizing this, our court for many years treated motions for jail credit as
either motions to correct an illegal sentence or motions under K.S.A. 60-1507. See State
v. Dunbar, No. 101,919, 2010 WL 2044939, at *2 (Kan. App.) (unpublished opinion),
rev. denied 290 Kan. 1097 (2010); but see State v. Lofton, 272 Kan. 216, 217, 32 P.3d
711 (2001) (attack on computation of jail credit not a claim of an illegal sentence); State
v. Muldrow, No. 107,291, 2013 WL 1149704, at *3 (Kan. App.) (unpublished opinion)
(attack on computation of jail credit not a claim under K.S.A. 60-1507), rev. denied 297
Kan. 1253 (2013).

However, even allowing that a postsentencing motion seeking additional jail credit
is a proper vehicle for a defendant to obtain any earned jail credit, Henson is still out of
time as he filed his motion more than 14 days after the journal entry reflecting his jail-
time credit was filed. See State v. Blazier, No. 110,070, 2014 WL 4916599, at *4 (Kan.
App. 2014) (unpublished opinion) (defendant's motion for jail credit filed years after
district court's jail credit calculation untimely).