State v. Rubio

1

NOT DESIGNATED FOR PUBLICATION

Nos. 118,528
118,529
118,530

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

HECTOR D. RUBIO,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed November 21,
2018. Affirmed.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MCANANY, P.J., PIERRON and LEBEN, JJ.

PER CURIAM: Hector D. Rubio appeals his sentences. He argues the district court
erred when it did not award him jail credit for the time he was in custody between the
filing of new charges and when he made bond. We affirm.


In August 2016, Rubio pled guilty in Sedgwick County cases 16 CR 396 and 16
CR 852. On January 31, 2017, the district court sentenced him in 16 CR 396 to 12
months of probation with an underlying 13-month prison term. On the same day, the
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court sentenced Rubio in case 16 CR 852 to 18 months of probation with an underlying
11-month prison term. The court ordered the sentences to run consecutively.

Rubio was to report to his probation officer after holds in other cases were lifted.
Rubio's probation condition page shows that he was being held in three other cases. The
handwritten notes on Rubio's probation condition sheet show that he was also being held
on cases from Harvey County, Sumner County, and Sedgwick County.

On February 3, 2017, the State charged Rubio, in case 17 CR 288, with several
crimes alleged to have occurred in January 2016. Rubio was held on bond in case 17 CR
288 from February 3, 2017, until he made bond on March 31, 2017.

It seems that Rubio was released from custody in cases 16 CR 396 and 16 CR 852
on or about May 6, 2017. Nothing in the record suggests that Rubio was released from
jail before May 6, 2017. On May 22, 2017, Rubio was returned to custody on case 17 CR
288. Warrants were filed in 16 CR 396 and 16 CR 852 on May 30, 2017. The warrants
stated that Rubio was accused of violating the conditions of his probation for "fail[ing] to
make contact with his ISO since his release from jail on or about May 6, 2017, prior to
his re-arrest on May 22, 2017."

On July 5, 2017, the district court imposed a two-day quick dip sanction on Rubio
for failing to report to his probation officer in cases 16 CR 396 and 16 CR 852. The court
also ordered that he remain in custody until placement at a residential facility became
available, unless the outcome of 17 CR 288 changed matters.

On July 26, 2017, Rubio entered a guilty plea in 17 CR 288. The district court
sentenced him to serve 117 months in prison to be served consecutive to cases 16 CR 396
and 16 CR 852. The court credited Rubio with time served. At the hearing, the parties
agreed that Rubio was to be credited two days of time served but with the understanding
that it could change based on how the court handled 16 CR 396 and 16 CR 852. The
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court set a review hearing to determine the status of 16 CR 396 and 16 CR 852. The
journal entry for 17 CR 288 stated that jail credit was not awarded for the time between
February 3, 2017, and March 31, 2017; and May 22, 2017, and September 9, 2017. The
journal entry in 17 CR 288 does not set a "Sentence Begins Date." Instead, it states that
the date is "To Be Determined."

At the review hearing for Rubio's 2016 cases, the district court found that Rubio
was not amenable to probation and ordered him to serve the underlying sentences
concurrent with 17 CR 288. The journal entry of probation in case 16 CR 396 did not
mention jail credit for the time between February 3, 2017, and March 31, 2017. The
journal entry of probation in case 16 CR 852 also does not mention jail credit for the time
between February 3, 2017, and March 31, 2017.

Rubio appeals his sentences.

Rubio argues the district court erred by failing to award him jail credit for the time
he was in custody between February 3, 2017, and March 31, 2017. In response, the State
argues that Rubio fails to meet his burden to establish error occurred and he is not entitled
to credit because he was in custody on those dates for other cases.

The right to jail credit is statutory. State v. Hopkins, 295 Kan. 579, 581, 285 P.3d
1021 (2012). Interpretation of a statute is a question of law and this court's review is
unlimited. 295 Kan. at 581.

The party asserting an error on appeal has the burden to designate a record
showing prejudicial error. State v. Sisson, 302 Kan. 123, 128, 351 P.3d 1235 (2015);
State v. Grizzle, No. 118,088, 2018 WL 3486561, at *3 (Kan. App. 2018) (unpublished
opinion) (applying appellant's burden in jail credit case). Without such a record, appellate
courts presume the trial court's action was proper. State v. Goodson, 281 Kan. 913, 919,
135 P.3d 1116 (2006).
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Typically, a defendant who spends time in jail pending his or her conviction and
sentencing may receive credit for that time. K.S.A. 2017 Supp. 21-6615(a). To reflect
that earned time, the district court calculates the "date of sentence" or, as the Kansas
Journal Entry of Judgment form states, the "Sentence Begins Date" by subtracting the
days spent in confinement from the actual date of sentencing. The designated date is then
used as if that was the date the defendant was incarcerated on the case. K.S.A. 2017
Supp. 21-6615(a). If the district court does not set a sentence date, the "records officer
shall compute the sentence begins date by subtracting jail credit from the date of
sentencing." K.A.R. 44-6-134(a).

A defendant earns jail time credit under K.S.A. 2017 Supp. 21-6615(a) solely for
jail time incurred because of, or as a direct result of, the charge for which the defendant is
being sentenced. See State v. Harper, 275 Kan. 888, 890, 69 P.3d 1105 (2003); State v.
Calderon, 233 Kan. 87, 98, 661 P.2d 781 (1983).

Much of this case revolves around confusion in the record. The State argues that
Rubio has not met his burden to establish that error occurred. On the other hand, Rubio
argues that the record shows that he never received credit for the time he was in custody
between February 3, 2017, and March 31, 2017. According to Rubio, he was solely
awaiting disposition in 17 CR 288 at that time.

Rubio is incorrect in saying that the record shows he never received credit. All the
record shows is that he did not receive credit, for the period in question, in the three cases
involved in this appeal. The State could be correct when it states that "presumably the
credit went toward other cases for which the defendant was held." The record does
indicate that Rubio was being held on other cases in January 2017 and he likely was held
on one or more of the cases until he was released from jail on or about May 6, 2017. For
example, he was not convicted in the Newton County case until April 6, 2017.

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Rubio has the burden to prove an error occurred. See Sisson, 302 Kan. at 128;
Grizzle, 2018 WL 3486561, at *3. Rubio has not shown that he was solely in custody for
17 CR 288 between February 3, 2017, and March 31, 2017. The record suggests that
Rubio was released from custody on or about May 6, 2017. It seems that Rubio was in
custody during the time between February 3, 2017, and March 31, 2017, for cases 16 CR
396, 16 CR 852, 17 CR 288, and other cases from outside Sedgwick County. Because
Rubio has failed to prove he was only in custody for case 17 CR 288, his argument fails.
See Sisson, 302 Kan. at 128; Grizzle, 2018 WL 3486561, at *3. See also State v.
Devaney, No. 110,866, 2015 WL 3632131, at *2 (Kan. App. 2015) (unpublished opinion)
(holding court did not err in denying defendant jail credit when his jail term was not
incurred solely on the charge for which he was sentenced); State v. Baringer, No.
106,525, 2012 WL 2476994, at *1 (Kan. App. 2012) (unpublished opinion) (same).

Rubio also argues the district court erred because it did not include a sentencing
begins date in the journal entry. This argument is unpersuasive. K.A.R. 44-6-134(a)
contemplates the journal entry not containing a sentence begins date and provides a
mechanism for the date to be calculated. Additionally, the only case that Rubio cites as
support does not require the district court to designate a sentence begins date. It only
requires the court to determine jail time credit and include the time awarded in the journal
entry. See State v. Fowler, 238 Kan. 326, 335-36, 710 P.2d 1268 (1985). The court in this
case did so.

Ultimately, Rubio has failed to meet his burden to show that the district court
erred. We can assume that the district court acted properly. See Goodson, 281 Kan. at
919. We affirm Rubio's sentences.

Affirmed.