Opinion
111,687.
06-05-2015
STATE of Kansas, Appellee, v. Eric HARBACEK, Appellant.
Shannon S, Crane, of Hutchinson, for appellant. Daniel D. Gilligan, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Shannon S, Crane, of Hutchinson, for appellant.
Daniel D. Gilligan, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ARNOLD–BURGER, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Eric Harbacek appeals the judgment of the trial court determining that he was entitled to only 2 days of jail time credit. Harbacek contends that the trial court's findings were not supported by substantial competent evidence. We agree in part that the trial court's findings were not supported by substantial competent evidence. As a result, we affirm in part, reverse in part, and remand to the trial court to determine if Harbecek is entitled to any additional jail time credit.
On September 19, 2009, Harbacek was arrested and charged with driving under the influence (DUI) in Reno County, case No. 09CR737. When he was arrested, Harbacek was on parole for his 1990 conviction of aggravated burglary in Reno County, case No. 90CR251, and for his 1991 convictions of aggravated assault of a law enforcement officer, aggravated burglary, and aggravated assault in Reno County, case No. 91CR268. Evidently, Harbacek's case No. 90CR251 and case No. 91CR268 sentences were indeterminate, but it is unclear how long those sentences were based on the record on appeal. Regardless, Harbacek was on parole when his DUI arrest occurred.
In December 2010, the trial court granted Harbacek's motion to suppress all evidence obtained by the police during Harbacek's DUI stop. The State appealed, and this court reversed the trial court in State v. Harbacek, No. 105,391, 2011 WL 5390237 (Kan.App.2011) (unpublished opinion). Harbacek's DUI case was set for jury trial.
Before trial, the trial court issued an alias arrest warrant on October 19, 2012, for failure to appear in case No. 09CR737. Harbacek was arrested on November 7, 2012. Harbacek bonded out on January 17, 2013. Based on Harbacek's bondsman's “Request for Discharge of Surety” in case No. 09CR737, Harbacek was arrested for “parole violations” and jailed on February 12, 2013. Yet, Harbacek again bonded out of jail in case No. 09CR737 on February 19, 2012. It seems Harbacek was then rearrested. Harbacek's Kansas Adult Supervised Population Electronic Repository (KASPER) printout indicated that he was located at Ellsworth Correctional Facility (ECF) on February 28, 2013, for a parole violation, but there was no new sentence. From this point forward, it seems that Harbacek remained in ECF because there were two orders requiring the Department of Corrections (DOC) to transport Harbacek from EFC to Reno County for his jury trial and sentencing.
Harbacek's jury trial occurred on May, 7, 2013, and May 8, 2013. The jury found Harbacek guilty of DUI. The trial judge sentenced Harbacek to 6 months' imprisonment, to be served consecutively to any prison term in case Nos. 90CR251 and 91CR268. At the sentencing hearing, the trial judge told Harbacek that the amount of jail time credit he would receive would be based on whether he was serving time solely for this case or for parole revocations of previous felonies. Harbacek's journal entry stated that he would receive no jail time credit because “all credit [had] been awarded in Reno county cases 90CR251 and 91CR268.”
On December 17, 2013, Harbacek filed a “Motion for Jail Credit,” in which he argued that the trial court incorrectly denied him jail time credit on the following dates: September 19, 2009; August 8, 2012; November 7, 2012, to January 16, 2013; February 11, 2013, to February 28, 2013; May 2, 2013, to May 9, 2013; and, June 18, 2013, to June 20, 2013. In total, Harbacek requested that the trial court give him 98 days of jail time credit for the 09CR737 case. It seems that the State did not file a response to this motion.
On January 24, 2014, the trial court held a hearing on the motion. Harbacek's attorney explained that he had emailed the captain of the jail, and the captain had emailed him back that Harbacek was in jail for the 09CR737 charges on the dates listed in his motion. The attorney then explained that Harbacek needed to receive jail time credit in his 09CR737 case based on the KASPER printout and bench warrants issued. The State argued that from February, 11, 2013, to February 28, 2013, June 18, 2013, to June 20, 2013, and May 2, 2013, to May 9, 2013, Harbacek received parole time credit in his 90CR251 and 91CR 268 cases. The State also argued that from November 7, 2012, to January 16, 2013, Harbacek was being held on both case No. 09CR737 and Reno County case No. 12CR757, a new DUI offense. The State explained that this information could be verified by Harbacek's KASPER printout. The State admitted into evidence the KASPER printout as State's Exhibit # 1, and it is included in the record on appeal. The trial judge stated that she would take the issue under advisement.
After taking the issue under advisement, the trial judge issued an order on March 6, 2014, stating the following:
“Defendant is entitled to 2 days of credit on his sentence for time served September 19, 2009, and August 8, 2012. The other dates requested by the defendant he was either in custody on another sentence or was on a parole hold on another sentence. Defendant is only entitled to credit for time served on this case solely. K.S.A. 21–6615.”
Harbacek did not file a timely notice of appeal. Following a show cause order from this court though, the trial court determined that a State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), exception to timely filing applied, and this court retained the appeal.
Did the Trial Court Err When It Determined That Harbacek Was Only Entitled to 2 Days of Jail Time Credit?
To the extent that Harbacek's appeal involves statutory interpretation, this court has unlimited review. State v. Graves, 47 Kan.App.2d 808, 812, 278 P.3d 993 (2012). To the extent that Harbacek's appeal challenges the trial court's factual findings, however, this court must review the trial court's factual findings to determine “if those findings are supported by substantial competent evidence.” State v. Heil, No. 106,578, 2012 WL 5392115, at *1 (Kan.App.2012) (unpublished opinion) (citing State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 [2009] ).
K.S.A. 21–4614, which has been recodified without any substantive changes as K.S.A.2013 Supp. 21–6615(a), states:
“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.”
Thus, the trial court has a duty to determine how much jail time credit a defendant is entitled to and state this amount in the journal entry. Nevertheless, a defendant may only earn jail time credit “for time spent in jail solely on the account of the offense for which the defendant is being sentenced.” State v. Richardson, 46 Kan.App.2d 801, 803, 264 P.3d 1048 (2011), rev. denied 294 Kan. 947 (2012) (citing Campbell v. State, 223 Kan. 528, 530–531, 575 P.2d 524 [1978] ).
On appeal, Harbacek argues that the trial court's factual findings were not supported by substantial competent evidence. Harbacek asserts that the KASPER printout, which the State admitted as an exhibit and the trial court relied on in its determination, does not definitively show that Harbacek was being held on any other charges during the periods of November 7, 2012–January 16, 2013, February 11, 2013–February 28, 2013; May 2, 2013–May 9, 2013; or June 18, 2013–June 20, 2013. The State, on the other hand, contends that Harbacek has failed to meet his burden to designate a record on appeal because he does not include journal entries of case Nos. 90CR251 and 91CR268 in the record on appeal.
The State's argument that Harbacek has failed to meet his burden to designate a record on appeal is unpersuasive. While it is true that Harbacek did not include journal entries of case Nos. 90CR251 and 91CR268 in the record on appeal, the State never admitted into evidence or even discussed the journal entries of case Nos. 90CR251 and 91CR268 as support to why Harbacek was not entitled to jail credit at the jail credit motion hearing. The only document the State relied on in arguing that Harbacek was not entitled to jail time credit was the KASPER printout. Harbacek also included the KASPER printout in the record on appeal; thus, Harbacek provided the same amount of information in the record on appeal as the State did when it argued that Harbacek was not entitled to jail time credit. Furthermore, the trial judge never cited the journal entries of case Nos. 90CR251 and 91CR268 as reasoning to why she denied Harbacek jail time credit. Therefore, there is no indication that the journal entries of case Nos. 90CR251 and 91CR268 were important factors in the trial judge's decision to deny the jail time credit. As a result, the State's argument that Harbacek failed to meet his burden to designate the record is flawed.
After establishing that Harbacek has met his burden to designate a record, the issue becomes whether the trial court erred in determining that Harbacek was only entitled to 2 days of jail time credit. As discussed later, while the KASPER printout that the State relied on in arguing that Harbacek was not entitled to any jail time credit indicates that Harbacek was not entitled to jail time credit for the May 2, 2013–May 9, 2013; and June 18, 2013–June 20, 2013, dates, the KASPER printout does not clearly indicate whether Harbacek was entitled to jail credit from November 7, 2012–January 16, 2013; and from February 11, 2013–February 28, 2013. Based on this and the trial court's failure to explain how it determined that Harbacek was not entitled to jail time credit from November 7, 2012–January 16, 2013; and from February 11, 2013–February 28, 2013, the trial court's findings regarding those dates were not supported by substantial competent evidence.
First, the KASPER printout showed that Harbacek was being held in prison on a different charge from May 2, 2013–May 9, 2013; and from June 18, 2013–June 20, 2013. On February 28, 2013, the KASPER printout stated that Harbacek was located in ECF and that he had a parole violation but no new sentence. Furthermore, the KASPER printout stated that on May 2, 2013, Harbacek was released from ECF to Reno County for a court appearance, and on May 9, 2013, Harbacek was returned from Reno County to ECF. The KASPER printout further indicated that on June 18, 2013, Harbacek was released from ECF to Reno County for a court appearance, and on June 20, 2013, Harbacek was returned from Reno County to ECF. Since Harbacek was being held at ECF before he was found guilty of the DUI on May 8, 2013, it was clear that Harbacek was being held in prison on a different charge during this time. This determination is further supported by the trial court's transport orders, ordering the DOC to transport Harbacek to Reno County for his trial and sentencing. Thus, Harbacek was not entitled to jail time credit during this period because he was already serving time in prison on another offense during those requested dates.
Nevertheless, the KASPER printout did not indicate whether Harbacek was entitled to jail time credit regarding the remaining dates he challenges on appeal. Between November 7, 2012, and January 16, 2013, the KASPER printout stated that a DOC warrant was issued on November 7, 2012, and January 16, 2013, but this warrant was withdrawn on January 17, 2013. The KASPER printout did not say why the DOC warrant was issued or why it was withdrawn. It seems that Harbacek remained in the custody of Reno County throughout this time. At the jail time credit motion hearing, the State stated that Harbacek was not entitled to jail time credit because he was being held in both the 09CR737 case and the 12CR757 case at this time. The KASPER printout, however, does not say anything about Harbacek being held on either the 09CR737 case or the 12CR757 case at this time.
Moreover, the alias arrest warrant issued by the trial court on October 19, 2012, failed to support the State's contention that Harbacek was being held on both the 09CR737 and the 12CR757 charges during this period. The presentence investigation report stated that the Harbacek was arrested for another DUI on August 15, 2012. Yet, the alias arrest warrant issued on October 19, 2012, stated that it was issued because Harbacek had failed to appear at a court hearing in 09CR737.
Between February 11, 2013, and February 28, 2013, the KASPER printout indicated that there was a DOC warrant issued on February 11, 2013, February 12, 2013, and February 14, 2013. Moreover, Harbacek was located in Reno County on each of those dates. At the jail time credit hearing, the State argued that Harbacek was receiving “parole time credit” for his 90CR251 and 91CR268 convictions during this time. Despite the State's contention, the KASPER printout did not indicate that Harbacek's parole had been revoked at this time. Furthermore, the trial court issued Harbacek an appearance bond on February 19, 2013. The fact that the trial court issued a bond suggests that Harbacek's parole had not yet been revoked. Nevertheless, it is worth noting that because it seems Harbacek had bonded out of jail on February 19, 2013, he would not have been entitled to jail time credit between February 19, 2013, to February 28, 2013, as he claims.
It is also worth noting that even if Harbacek was being held on multiple charges between November 7, 2012, and January 16, 2013, and between February 11, 2013, and February 28, 2013, the KASPER printout did not indicate that Harbacek received any jail time credit for the other charges. While a defendant is not entitled to double jail time credit for time spent in jail on multiple charges, this does not mean that a defendant is not entitled to any jail time credit when that defendant is being held on multiple charges. It simply means that the defendant can only receive 1 day of jail time credit for each day spent in jail on a single charge even if the defendant was being held on multiple charges. See State v. Smith, 33 Kan.App.2d 554, 555, 559, 105 P.3d 738, rev. denied 279 Kan. 1010 (2005); State v. Taylor, 24 Kan.App.2d 80, 82–83, 941 P.2d 954, rev. denied 262 Kan. 969 (1997); State v. Thomas, No. 97,347, 2008 WL 1722205, at *5 (Kan.App.2008) (unpublished opinion) (affirming the trial court's finding that Thomas was entitled to jail credit but only for one of Thomas' consecutive sentences to avoid double credit); and State v. Molina, No. 98,244, 2008 WL 4222917, at *5 (Kan.App.2008) (unpublished opinion) (affirming the trial court's finding that Molina was entitled to jail credit but that the jail credit could only be applied to one of Molina's multiple cases). Therefore, even if Harbacek was being held on multiple charges during this time he was still entitled to receive jail credit toward one of the offenses he was being held on. Yet, the KASPER printout did not indicate if he received credit on either the 09CR737 or any other offense.
Given that the only evidence the State provided did not clarify whether Harbacek was entitled to jail time credit and that the trial court provided no explanation as to why it determined that Harbacek was not entitled to jail time credit from November 7, 2012–January 16, 2013; and from February 11, 2013–February 28, 2013, in its order denying jail time credit, the trial court's factual findings concerning those dates were not supported by substantial competent evidence. Accordingly, we affirm the trial court's findings regarding the May 2, 2013–May 9, 2013; and June 18, 2013–June 20, 2013, dates, hold that the trial court's findings regarding the November 7, 2012–January 16, 2013; and February 11, 2013–February 28, 2013, dates were not supported by substantial competent evidence, and remand to the trial court to determine if Harbacek is entitled to any additional jail time credit.