Summary
In Sanders, the Court stated that the post-2011 language of KRS 532.120(3) removed the authority for trial courts to credit felony sentences for time spent in custody before sentencing.
Summary of this case from Hester v. CommonwealthOpinion
NO. 2019-CA-000445-MR
02-07-2020
Jordan R. SANDERS, Appellant v. COMMONWEALTH of Kentucky, Appellee
BRIEF AND ORAL ARGUMENT FOR APPELLANT: B. Alan Simpson, Bowling Green, Kentucky. BRIEF FOR APPELLEE: Andy Beshear, Attorney General, Joseph A. Newberg, II, Assistant Attorney General, Frankfort, Kentucky. ORAL ARGUMENT FOR APPELLEE: Joseph A. Newberg, II, Assistant Attorney General, Frankfort, Kentucky.
BRIEF AND ORAL ARGUMENT FOR APPELLANT: B. Alan Simpson, Bowling Green, Kentucky.
BRIEF FOR APPELLEE: Andy Beshear, Attorney General, Joseph A. Newberg, II, Assistant Attorney General, Frankfort, Kentucky.
ORAL ARGUMENT FOR APPELLEE: Joseph A. Newberg, II, Assistant Attorney General, Frankfort, Kentucky.
BEFORE: JONES, KRAMER, AND TAYLOR, JUDGES.
OPINION
JONES, JUDGE:
Appellant, Jordan R. Sanders, seeks review of the Edmonson Circuit Court's order denying his motion for jail-time credit. Sanders argues that he is entitled to have his final sentence credited by the trial court because the pretrial services supervised release order he signed provided that Sanders was to be on "home incarceration" pending adjudication of his criminal charges. The Commonwealth counters that the trial court correctly denied Sanders's motion because he was not subject to electronic monitoring, a statutory requirement necessary to make home incarceration eligible for jail-time credit pursuant to KRS 532.200. Having reviewed the record in conjunction with all applicable legal authority, we must affirm the denial of Sanders's motion, albeit for different reasons than those articulated by the trial court. The current language of KRS 532.120(3), which became effective June 8, 2011, no longer authorizes trial courts to credit felony sentences for time spent in custody before sentencing. The General Assembly granted that authority instead to the Department of Corrections. While a defendant may challenge a decision of the Department of Corrections to award pretrial jail-time credit by filing a motion in the sentencing court, he must first exhaust his administrative remedies with the appropriate authority. KRS 532.120(9). In this case, Sanders's motion was filed prior to his final sentencing. The record is devoid of any indication that the Department of Corrections decided the jail-time credit issue prior to the trial court's entering its judgment or that Sanders exhausted his administrative remedies with the Department of Corrections after any such decision. Accordingly, the trial court did not err in failing to order jail-time credit as it lacked the authority to do so.
Kentucky Revised Statutes.
Under KRS 532.200(2), " ‘[h]ome incarceration’ means the use of a monitoring device approved by the commissioner of the Department of Corrections to facilitate a prisoner's ability to maintain gainful employment or to participate in programs approved as a condition of his or her incarceration, or both, using the person's home for purposes of confinement[.]" KRS 532.200(2).
[I]t is well-settled that an appellate court may affirm a lower court for any reason supported by the record." McCloud v. Commonwealth , 286 S.W.3d 780, 786 n.19 (Ky. 2009) (citing Kentucky Farm Bureau Mut. Ins. Co. v. Gray , 814 S.W.2d 928, 930 (Ky. App. 1991) ); see also Emberton v. GMRI, Inc. , 299 S.W.3d 565, 576 (Ky. 2009).
While the trial court's order denying the motion was correct, its denial based on the substantive merits was in error. The trial court should have summarily denied the motion because, in this instance, it lacked the authority to decide pretrial jail-time credit. The authority to make the initial determination belonged to the Department of Corrections, not the trial court.
I. STATEMENT OF THE FACTS
Sanders was indicted on January 11, 2018, for first-degree sexual abuse, first-degree sodomy, and first-degree indecent exposure. After the police arrested him one week later, his bond was set at $50,000, full cash. On January 22, 2018, private counsel entered their appearances on Sanders's behalf. Sanders posted the required bond. Thereafter, on January 23, 2018, Sanders and a pretrial services officer executed a pretrial services supervised release order. The parties filled out the "type of release" section of the form order as being "$50,000 CASH on 1/17/2018." The next section of the form order is labeled "conditions of release" in bold typeface. There are eleven possible conditions listed under this section of the form order with corresponding checkboxes. Checkmarks were placed beside the following eight conditions: (1) no further violations of law; (2) not to consume any alcohol or illegal drugs; (3) no contact with alleged victim; (4) random drug testing; (5) home restriction; (6) seek/maintain employment; (7) report to pretrial services office as directed; and (8) other, see below. As related to the "other" condition, the form order contains a "details" section, where the following was included:
The bond also included several non-financial conditions: (1) no use of alcohol and drugs; (2) no new arrests or violation of law; (3) no use/possess firearm or weapon; (4) no police scanners; (5) home incarceration except for employment, court appearances, meet with attorney, or medical emergencies; (6) M.C.R. release–must see pretrial before released from jail; (7) must pay $25 bond fee and $40 Sheriff's services fee before release; (8) must sign waiver of search and seizure; (9) must pay all jail fees before release; (10) no contact with victim or family; (11) pay current child support; (12) maintain employment; and (13) must submit to weekly drug tests at Defendant's costs as requested.
The parties used a preprinted form approved for use by the Administrative Office of the Courts. See AOC PT-60 (Rev. 6-12).
Home incarceration with exception of work, seeking work, court appearances, attorney visits, doctor appts, medical emergencies, church aa/na. All other meeting must be approved by pretrial
staff. To not possess firearms or dangerous instruments.
(Record (R.) at 8). No checkmarks were placed in the boxes for (1) curfew; (2) call-in to pretrial services; or (3) electronic monitoring.
The last section of the form order contains the following acknowledgment, which Sanders and a pretrial officer signed and dated on January 23, 2018:
By signing this contract, the defendant acknowledges and accepts the conditions of release and understands that violation of the terms of this contract will result in the revocation of the defendant's release/bail bond. Should electronic monitoring or home restriction be a condition of bail, failure to comply with the condition imposed by the court may result in additional charges related to escape. The terms and conditions of this contract will remain in effect until dismissal, conviction or acquittal of the criminal case against the defendant.
Id. The form order was entered of record on January 24, 2018.
A file stamp dated January 24, 2018, by the Edmonson Circuit Court Clerk Tanya Hodges and initialed by a deputy clerk was placed to the right of the section of the form order labeled "action by court"; however, the form order was not signed by the trial court.
Sanders remained free on bond through the beginning of his trial on December 5, 2018. At no time during this period was he monitored by an electronic device. There is no record of Sanders having violated any of the terms of his pretrial supervision/release. Before the case was decided by the jury, Sanders accepted the Commonwealth's Offer on Plea of Guilty wherein the Commonwealth agreed to amend the first-degree sodomy charge to first-degree sexual abuse, drop the indecent exposure charge, and recommend a sentence of two years in exchange for Sanders's agreement to plead guilty to two counts of sexual abuse in the first degree. There is no mention of jail-time credit in the written agreement signed by Sanders and his counsel on December 7, 2018.
The trial court accepted Sanders's plea. He was allowed to remain out on bond under the same bond conditions pending final sentencing, which was scheduled to occur on February 18, 2019. Three days before his sentencing, Sanders filed a motion for jail-time credit. Sanders argued that he was statutorily entitled to jail-time credit for the period he was confined in his home prior to trial based on the conditions of his confinement and the fact that the supervised release form he signed described his confinement as "home incarceration." Citing KRS 532.200, the Commonwealth objected to Sanders's motion. It asserted that Sanders was not entitled to any credit because his pretrial confinement was not subject to monitoring by "an electronic device or apparatus which is capable of recording, tracking, or transmitting information as to [Sanders's] location or verifying [his] presence or non-presence in the home...." KRS 532.200(5).
After Sanders entered his guilty plea, but before he was sentenced, his first counsel withdrew and new counsel entered an appearance on his behalf.
The trial court entered its formal sentencing order on February 18, 2019. Consistent with the plea agreement, the trial court sentenced Sanders to one year for each count of first-degree sexual abuse for a total of two years. The sentences were ordered to run consecutively. The judgment is silent with respect to jail-time credit. On February 27, 2019, the trial court entered a written order denying Sanders's motion for jail-time credit on the basis that Sanders was not electronically monitored during his pretrial release.
This appeal followed.
II. ANALYSIS
The right to jail-time credit is derived purely from statute. As such, it is governed by and interpreted according to legislative intent. "As with any case involving statutory interpretation, our duty is to ascertain and give effect to the intent of the General Assembly." Stogner v. Commonwealth , 35 S.W.3d 831, 834 (Ky. App. 2000) (quoting Beckham v. Board of Education of Jefferson Co. , 873 S.W.2d 575, 577 (Ky. 1994) (citations omitted)). "The Legislature is presumed to be aware of the existing law at the time of enactment of a later statute" and, therefore, intent can be readily ascertained from both maintenance and alteration of a statute. Stogner , 35 S.W.3d at 835.
Prior to June 8, 2011, KRS 532.120(3) provided that the presentencing time spent in custody "shall be credited by the court imposing sentence." Under this version of the statute, trial courts had the duty to ensure the credit was properly applied, requiring courts to address presentencing jail-time credit in their judgments. "If either the defendant or the Commonwealth believe[d] the trial court's jail-time credit calculation to be erroneous, either the Commonwealth or the defendant [could] timely raise that issue on direct appeal." Winstead v. Commonwealth , 327 S.W.3d 479, 485 (Ky. 2010). Thus, under the prior version of KRS 532.120(3), the motion Sanders filed for pretrial jail-time credit and this appeal would have been proper.
The 2011 amendments to KRS 532.120(3), however, removed, in most instances, the trial courts’ authority to determine issues of pretrial jail-time credit at the time of sentencing. The current language of KRS 532.120(3), which became effective June 8, 2011, provides:
Time spent in custody prior to the commencement of a sentence as a result of the charge that culminated in the sentence shall be credited by the Department of Corrections toward service of the maximum term of imprisonment in cases involving a felony sentence and by the sentencing court in all other cases. If the sentence is to an indeterminate term of imprisonment, the time spent in custody prior to the commencement of the sentence shall be considered for all purposes as time served in prison.
KRS 532.120(3) (emphasis added). "Time spent in custody" as that phrase is used "in subsection[ ] (3) [of KRS 532.120 ] ... shall include time spent in pretrial home incarceration pursuant to KRS 431.517, subject to the conditions imposed by KRS 532.245." KRS 532.120(7).
In Caraway v. Commonwealth , 459 S.W.3d 849 (Ky. 2015), the Supreme Court of Kentucky explained how the current version of KRS 532.120(3) operates with respect to a trial court's initial authority to decide issues involving pretrial jail-time credit as follows:
This change to the statutory language divested the trial court of its prior duty and authority to ensure proper application of the presentencing custody credit in felony cases and, instead, placed it solely under the purview of the Department of Corrections. The sentencing court is empowered to award custody credit in felony cases only when "presentence report indicates that a defendant has accumulated sufficient sentencing credits ... to allow for an immediate discharge from confinement upon pronouncement
of sentence." KRS 532.120(8). Otherwise, the role of the trial court under the statute as amended is essentially appellate in nature. See KRS 532.120(9) ("An inmate may challenge a failure of the Department of Corrections to award a sentencing credit under this section or the amount of credit awarded by motion made in the sentencing court no later than thirty (30) days after the inmate has exhausted his or her administrative remedies."). But the defendant must first pursue his administrative remedies with Corrections before this matter may be addressed by a court. Id.
Id. at 855 (emphases added).
Sanders argues that the period during which he was subject to home confinement should be considered "home incarceration" for the purposes of jail-time credit even though he was not subject to electronic monitoring. He argues that (1) he was "in custody" by virtue of the other conditions imposed on him; and (2) the pretrial services supervised release order he signed denoted that he was on "home incarceration." Under the revisions to the statute that were made in 2011, however, this is a determination that was not within the trial court's initial purview.
The only time KRS 532.120 permits a trial court to make the initial determination regarding jail-time credit occurs in felony cases when the "presentence report indicates that a defendant has accumulated sufficient sentencing credits ... to allow for an immediate discharge from confinement upon pronouncement of sentence[.]" KRS 532.120(8). Sanders was sentenced to two years. He was subject to the terms of the pretrial services supervised release order for three hundred and ninety-one (391) days. Even if credited, this time would not have entitled Sanders to immediate discharge. Thus, the trial court was not required or authorized to order credit for time served in custody before sentencing. It was the prerogative of the Department of Corrections to make an initial determination, a determination Sanders was required to exhaust at the administrative level before seeking redress with the trial court. See Reyes v. Commonwealth , No. 2014-CA-001637-MR, 2016 WL 2638150, at *2 (Ky. App. May 6, 2016).
The Department of Corrections has promulgated specific policies and procedures for seeking administrative review of its sentencing calculations. 501 Kentucky Administrative Regulations (KAR) 6:020, Section 17.4 (Amended 8/12/16). The relevant portion of Section 17.4 provides:
D. Administrative Remedy for Jail Custody Time Credit
1. Review Request
a. An offender may request in writing a review of the calculation of jail custody time credit applied to his sentence or a review or explanation of the method used to calculate custody time credit for the sentences on which he is presently committed to the Department of Corrections.
b. To request a review, the offender shall mail the request to the Probation and Parole Office in the county in which the inmate was sentenced.
c. The offender request shall include:
(1) The subject matter for which the review is requested,
(2) A brief statement of the matter to be reviewed, and
(3) An explanation of the inmate's belief concerning the appropriate calculation of jail custody time credit.
2. Response
a. The District Supervisor, or designee, shall review the request and prepare a written response. Upon receipt of the written request from the inmate, the District Supervisor, or designee, shall review the offender's record prior to giving a response.
(1) The response shall include an explanation of the method of calculation of jail custody time credit, and
(2) Whether or not the correct jail custody time credit has been applied to the sentence.
b. A written response shall be issued within fifteen (15) working days of the receipt of the offender's request for review or explanation.
c. The written response shall be entered in the offender management system.
3. Appeal
a. An inmate may appeal the written response concerning custody time credit to the Offender Information Services Branch, Attention: Custody Time Credit Appeal, PO Box 2400, Frankfort, KY 40602-2400.
b. The appeal response shall include:
(1) An explanation of the method of calculation and application, and
(2) Any statutes applied in the calculation.
c. The response on this appeal shall be issued within thirty (30) working days of the receipt of the offender's request for review.
We cite to Reyes for illustrative purposes only as we recognize that it is unpublished and, therefore, nonbinding. See Kentucky Rules of Civil Procedure (CR) 76.28(4)(c).
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We recognize that Sanders might argue that it would be futile for him to do so in this instance because the trial court already indicated that it does not believe he is entitled to jail-time credit. Allowing Sanders to bypass the procedures set out in the 2011 amendment, however, would undercut the General Assembly's intent. The statute explicitly gives the Department of Corrections the primary authority to decide issues of pretrial jail-time credit. This serves the important purpose of ensuring uniformity in pretrial jail-time credit determinations, which would be thwarted if we proceeded to review the merits of the trial court's decision. Moreover, and perhaps more importantly, the trial court's initial decision was not binding on the Department of Corrections; the Department of Corrections was free to credit the sentence if it so desired, a decision only Sanders—not the Commonwealth—had the right to challenge. See KRS 532.120(9) ("An inmate may challenge a failure of the Department of Corrections to award a sentencing credit under this section or the amount of credit awarded by motion made in the sentencing court no later than thirty (30) days after the inmate has exhausted his or her administrative remedies.").
While we do not review the merits of Sanders's appeal, we feel that it is incumbent to point out that "home incarceration" is a precise term that requires use of an electronic monitoring device. If an electronic monitoring device is not employed, a trial court should not describe the pretrial release as "home incarceration." It should use some other term such as "home confinement" or "home restriction." There is no such thing as "home incarceration without electronic monitoring." By the same token, defendants and the counsel who represent them should take notice that pretrial jail-time credit requires monitoring by an electronic device. As such, they should request monitoring by an approved electronic device if they desire to be eligible for jail-time credit should they be convicted. KRS 532.210.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the trial court's judgment.
ALL CONCUR.