NOT DESIGNATED FOR PUBLICATION
No. 122,617
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
EDWARD SHANE WHITEEAGLE,
Appellant.
MEMORANDUM OPINION
Appeal from Thomas District Court; KEVIN BERENS, judge. Opinion filed July 16, 2021.
Affirmed in part, sentence vacated in part, and case remanded with directions.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Rachel Lamm, county attorney, and Derek Schmidt, attorney general, for appellee.
Before WARNER, P.J., BUSER and CLINE, JJ.
PER CURIAM: Edward Whiteeagle appeals two aspects of the sentence imposed
after he pleaded guilty to aggravated kidnapping. He argues that the district court erred
when it determined his jail-time credit and that it should have applied a greater credit
toward his sentence for time he spent in jail awaiting the disposition of this case. And he
observes that the court incorrectly ordered lifetime postrelease supervision when Kansas
law imposes a 36-month supervision term for the crime he committed.
We conclude the district court's order of jail-time credit was proper and based on
binding Kansas Supreme Court precedent. But we agree—and the State concedes—that
the court imposed an incorrect term of postrelease supervision. We therefore vacate
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Whiteeagle's lifetime postrelease supervision and remand the case for resentencing so the
court may impose a 36-month postrelease supervision term in accordance with Kansas
law.
FACTUAL AND PROCEDURAL BACKGROUND
Though the State originally charged Whiteeagle with aggravated indecent liberties
with a child, an off-grid person felony, he eventually pleaded guilty to aggravated
kidnapping. As part of his plea agreement, the State agreed to recommend a downward
departure sentence for the aggravated-kidnapping conviction and to dismiss a separate
case filed after Whiteeagle was found with drugs inside the jail.
Whiteeagle was charged in the current case on April 26, 2019. At that time, he had
one day remaining on a 30-day jail sanction he was serving in another case. He remained
in jail through sentencing in this case, which occurred on February 14, 2020.
At sentencing, Whiteeagle requested credit toward his sentence for the time he had
spent in jail, a total of 294 days. He indicated that although there were two cases pending
for some of that time (this case and the drug-possession case), there was no possibility
that he would be granted double credit for that time because the drug-possession case had
been dismissed.
The district court partially granted Whiteeagle's request, awarding him credit for
the 98 days he spent in jail solely for the aggravated-kidnapping case. This 98 days
included:
• 17 days between April 27, 2019 (the date the aggravated indecent-liberties charge
was filed) and May 15, 2019 (the date the drug-possession case was filed) and
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• 81 days between November 24, 2019 (the date the drug case was dismissed) and
February 14, 2020 (the date of sentencing).
The court denied Whiteeagle's request to have the 196 days he spent in jail between May
15 and November 24, 2019, credited against his prison sentence, as he was being held
during that time for both the current case and the separate drug-possession charge. The
court then granted Whiteeagle's departure motion and imposed a 180-month prison
sentence, followed by lifetime postrelease supervision.
Whiteeagle now appeals two components of his sentence. First, he argues the
district court erred in calculating his jail-time credit; he asserts the court should have
ordered credit for the entire time he spent in jail while he awaited the disposition of this
case. Second, he argues the court erred when it imposed lifetime postrelease supervision,
as his crime of conviction—aggravated kidnapping—carries a mandatory period of
36 months' postrelease supervision.
The State concedes that Whiteeagle should have received 36 months' postrelease
supervision, as he was convicted of aggravated kidnapping, not aggravated indecent
liberties with a child (as he had originally been charged). See K.S.A. 2020 Supp. 22-
3717(d)(1)(A) (imposing mandatory 36-month postrelease supervision term for various
crimes, including aggravated kidnapping). The parties agree that this case needs to be
remanded for resentencing to correct this error. Thus, the sole issue we must decide is
whether the district court's calculation of jail-time credit was consistent with Kansas law.
DISCUSSION
A defendant has a statutory right in certain circumstances to receive credit toward
his or her sentence for time already spent in jail on that charge—what Kansas courts
commonly call jail-time credit. See State v. Hopkins, 295 Kan. 579, 581, 285 P.3d 1021
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(2012). Jail-time credit is governed by K.S.A. 2020 Supp. 21-6615(a), which states in
relevant 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.)
Whiteeagle argues, based on this statute, that he spent 294 days in jail "pending
the disposition in [this] case" and thus should have been given jail-time credit for that
entire duration—not merely the 98-day credit the court applied. See K.S.A. 2020 Supp.
21-6615(a). The resolution of this claim requires us to interpret K.S.A. 2020 Supp. 21-
6615(a) and thus presents a question of law over which we exercise unlimited review.
Hopkins, 295 Kan. at 581; State v. Prebble, 37 Kan. App. 2d 327, 328, 152 P.3d 1245
(2007).
For four decades, the Kansas Supreme Court has interpreted K.S.A. 2020 Supp.
21-6615(a)'s reference to time spent "pending the disposition of the defendant's case" to
mean that a defendant earns jail-time credit for "all time spent in custody solely on the
charge for which he is being sentenced." (Emphasis added.) State v. Calderon, 233 Kan.
87, 97, 661 P.2d 781 (1983) (interpreting K.S.A. 21-4614, the predecessor statute to
K.S.A. 2020 Supp. 21-6615). Thus, a defendant "'is not entitled to credit on a sentence for
time which he has spent in jail upon other, distinct, or wholly unrelated charges.'" State v.
Smith, 309 Kan. 977, 981, 441 P.3d 1041 (2019). Kansas courts have consistently
adhered to this interpretation. See Smith, 309 Kan. at 981; State v. Harper, 275 Kan. 888,
890, 69 P.3d 1105 (2003); Calderon, 233 Kan. at 98; see also State v. Richardson, 46
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Kan. App. 2d 801, 803, 264 P.3d 1048 (2011) ("Jail time credit can be earned only for
time spent in jail solely on the account of the offense for which the defendant is being
sentenced."), rev. denied 294 Kan. 947 (2012); 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), rev. denied 303 Kan. 1079 (2016); State v. Baringer, No.
106,525, 2012 WL 2476994, at *1 (Kan. App. 2012) (unpublished opinion) (same), rev.
denied 296 Kan. 1131 (2013).
Whiteeagle appears to acknowledge that a strict application of Kansas Supreme
Court precedent supports the district court's calculation. The court excluded from
Whiteeagle's jail-time credit the period of time he was incarcerated for both this case and
the drug-possession charge. During that period of 196 days, he was not being held "solely
on the charge for which he is being sentenced." See Calderon, 233 Kan. at 97. But
Whiteeagle nevertheless argues that under the facts of this case—when the State
ultimately dismissed the separate drug-possession charge—there is no danger of him
receiving duplicative jail-time credit in a separate case. He points out that the practical
effect of the district court's ruling is that the more than six months he spent in jail while
both cases were pending has essentially become "dead time" that will never be credited in
any case.
A similar situation to Whiteeagle's dilemma arose in Smith, though it was
presented to the appellate courts under a different procedural posture. There, the
defendant argued that the sentencing court had miscalculated his jail-time credit and
asked that this error be corrected through a nunc pro tunc order. The Kansas Supreme
Court found that his claim raised a substantive legal question that could not be corrected
through a clerical order. And it further indicated that Smith was not entitled to jail-time
credit because he had other charges pending against him during some of the time he was
incarcerated. The Smith court found that
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"the record establishes that Smith was in custody on at least one other case during some
of the time he claims should be credited in this case. This means that to grant Smith's
motion we would have to make a substantive ruling and perhaps even overrule a long line
of cases under which he can get credit only if he was solely held on the [case for which
he was sentenced]." 309 Kan. at 988.
The court declined to take such action. 309 Kan. at 988.
As an intermediate appellate court, we are duty-bound to follow Kansas Supreme
Court precedent unless the court has indicated it is departing from its previous
position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). For almost 40
years, our Kansas Supreme Court has interpreted Kansas statutes to state that a person is
only entitled to receive jail-time credit for the time spent incarcerated solely for the
charges associated with the defendant's sentence. We find no indication that the court is
inclined to change this position, particularly in light of its recent statements in Smith
evincing its reluctance to do so.
Based on this precedent, we are compelled to affirm the district court's calculation
of jail-time credit. Whiteeagle was being held in jail between May 15 and November 24,
2019, for charges additional to (and separate from) the charges in the case for which he
was eventually sentenced. In other words, those 196 days in jail were not solely
attributable to the aggravated-kidnapping case.
For these reasons, we affirm the district court's order calculating Whiteeagle's jail-
time credit. We reverse the court's order that Whiteeagle be subject to lifetime postrelease
supervision and remand the case for resentencing, with directions that the court impose a
postrelease supervision term of 36 months in accordance with Kansas law.
Affirmed in part, sentence vacated in part, and case remanded with directions.
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