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23 Kan. App. 2d 449

MELVIN WHITE, Appellee, v.LOUIS E. BRUCE, WARDEN OF THE ELLSWORTH CORRECTIONAL FACILITY,Appellant.

1. Under the Kansas Sentencing Guidelines, incarceration and postrelease supervision are mutually exclusive sentencing concepts which cannot be satisfied at the same time.

2. In accord with K.S.A. 21-4608(c), an individual on postrelease supervision for a felony cannot receive credit against an unrevoked term of such postrelease supervision for time spent incarcerated on another charge which results in a conviction and sentence.

Appeal from Ellsworth District Court; HERB ROHLEDER, judge. Opinion filed February 7, 1997. Reversed.

Robert E. Wasinger, of Department of Corrections, of Ellsworth, for appellant.

Kevin G. Campbell, of Legal Services for Prisoners, Inc., of Norton, for appellee.

Before BRAZIL, C.J., ELLIOTT and PIERRON, JJ.

BRAZIL, C.J.: Louis E. Bruce, the Warden of the Ellsworth Correctional Facility (ECF), appeals the district court's decision to grant habeas corpus relief to petitioner Melvin White. The court held that White should receive credit against his postrelease supervision for time he spent incarcerated on another charge prior to the Kansas Parole's Board's (KPB) decision to revoke his postrelease supervision. The court stayed execution of its judgment pending the outcome of this appeal. We reverse.

On January 7, 1994, White finished serving a 42-month guidelines sentence and was released to begin serving 24 months of postrelease supervision. While on postrelease supervision, White committed another offense and was sentenced to 12 months' imprisonment. Because White had been in custody since January 28, 1995, the court granted him 182 days of jail time credit against his 12-month sentence. With the jail time credit, White actually began serving his sentence on January 28, 1995.

On September 27, 1995, the KPB revoked White's postrelease supervision and ordered him to serve to the maximum release date of his postrelease supervision term.

White filed a petition for habeas corpus pursuant to K.S.A. 60-1501, asserting that although he had been incarcerated since January 28, 1995, he was entitled to credit against his postrelease supervision term through September 27, 1995, the date the KPB revoked his postrelease supervision. Following this reasoning, White determined that he had only 3 months and 10 days of postrelease supervision left to serve and that he should be released by May 8, 1996.

The trial court agreed and found that White was entitled to credit against his postrelease supervision term for the time period at issue.

The issue on appeal is whether Kansas law mandates that an individual receive credit against an unrevoked term of postrelease supervision for time spent incarcerated on another charge. The issue involves interpretation of the Kansas Sentencing Guidelines Act and thus poses a question of law over which this court's review is unlimited. See State v. Gideon, 257 Kan. 591, 597, 894 P.2d 850 (1995); State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993).

Bruce argues the district court erred in crediting White's postrelease supervision term for the time White was reincarcerated until the date the KPB revoked the postrelease supervision. For that time period, White received credit against both his postrelease supervision term and his new sentence. Bruce contends that the district court's decision violates K.S.A. 21-4608(c), which provides:

White acknowledges that K.S.A. 21-4608(c) requires his new sentence to be consecutive to his postrelease supervision term, but argues that the consecutive sentence provision takes effect only upon the revocation of his postrelease supervision. In support of his contention, White points to K.S.A. 1995 Supp. 75-5217(c), which addresses violations of postrelease supervision:

Under the statute, it is only upon revocation of postrelease supervision that an inmate must serve the remainder of the postrelease supervision term. White reasons that the time prior to revocation vested against his term of postrelease supervision. K.S.A. 22-3717(r) provides:

Similarly, K.S.A. 22-3722 states:

White notes that under K.S.A. 22-3722 and K.S.A. 1995 Supp. 75-5217(e) only an inmate who is a fugitive or has fled from justice shall not receive credit for time served on postrelease supervision; in all other instances, the time shall vest. White applies the maxim expressio unius est exclusio alterius:

See In re J.E.M., 20 Kan. App. 2d 596, 600, 890 P.2d 364 (1995).

White argues that the legislature's decision to expressly deny postrelease supervision credit for fugitives indicates that the legislature intended postrelease supervision credit to vest in all other situations, including during incarceration for a different crime.

White's argument rests on the assumption that he remained on postrelease supervision, in spite of his incarceration, until the KPB revoked his postrelease supervision. While Kansas courts have not addressed the precise question of whether an individual can serve an unrevoked term of postrelease supervision while incarcerated, such a proposition seems fundamentally illogical. Kansas law defines postrelease supervision as

Obviously, an individual who has been reincarcerated is no longer released to the community as contemplated by K.S.A. 21-4703(p).

This court has tangentially addressed this issue in two recent decisions: Phillpot v. Shelton, 19 Kan. App. 2d 654, 875 P.2d 289, rev. denied 255 Kan. 1003 (1994), and Faulkner v. State, 22 Kan. App. 2d 80, 911 P.2d 203, rev. denied 259 Kan. (1996). In Phillpot, the court considered several cases where the sentencing guidelines were retroactively applied and the prisoner's period of incarceration served on an indeterminate sentence was in excess of the period of incarceration required under the guidelines. The court held that the excess period of incarceration served by the prisoner could not be applied to satisfy the period of postrelease supervision required by the guidelines. 19 Kan. App. 2d at 664.

The Phillpot court essentially held that an individual could not receive credit against a term of postrelease supervision for time spent in prison under a pre-guidelines indeterminate sentence. The basis for the decision is that under the guidelines, incarceration and postrelease supervision are independent from one another. This rationale applies equally to the instant case. Regardless of whether an inmate's incarceration is by virtue of a pre-guidelines indeterminate sentence or a new guidelines determinate sentence, incarceration and postrelease supervision are independent concepts. The Phillpot decision supports a conclusion that an inmate cannot logically remain on postrelease supervision if that inmate is incarcerated.

In Faulkner, the court held that "time spent on parole under an indeterminate sentence may not be credited to the postrelease supervision period of a converted sentence." 22 Kan. App. 2d at 83. The court based its decision on the fact that time spent on parole is time spent in custody, whereas time spent on postrelease supervision does not begin until after the confinement portion of a sentence has been served. 22 Kan. App. 2d at 82-83. Like Phillpot, the Faulkner decision supports a conclusion that an inmate cannot be on postrelease supervision while incarcerated. We conclude that incarceration and postrelease supervision are mutually exclusive sentencing concepts which cannot be satisfied at the same time.

Although the parties frame the issue as involving a statutory conflict between sections requiring vested postrelease supervision time and those requiring consecutive sentences, no direct statutory conflict is apparent. K.S.A. 22-3717(r) and 22-3722 mandate that time served while on postrelease supervision shall vest, while K.S.A. 1995 Supp. 75-5217(c) and K.S.A. 21-4608(c) direct that, upon revocation, a postrelease supervision term shall be served consecutive to a new sentence imposed for a crime committed during the supervision period. White seeks refuge in the rule that penal statutes must be strictly construed in favor of the accused. See State v. Sullivan, 17 Kan. App. 2d 771, 772, 844 P.2d 741 (1993). However, as the central issue is whether an inmate can serve an unrevoked term of postrelease supervision while incarcerated, the only statute requiring judicial construction is K.S.A. 21-4703(p), which defines postrelease supervision. Although it is a criminal statute, interpretation of K.S.A. 21-4703(p) must be reasonable and sensible to effectuate legislative design and intent. See State v. Sullivan, 17 Kan. App. 2d at 772.

White stresses that because the KPB did not revoke his postrelease supervision until 7 months after his reincarceration, that time vested as credit against his postrelease supervision. The district court also cited the KPB's delay in revoking White's postrelease supervision as an equitable factor supporting its decision to grant White credit for the time prior to revocation. On the contrary, it makes sense to us that the KPB should wait to revoke until White has been convicted of a new crime. If White had been found not guilty or the charges otherwise dismissed, we assume that the KPB would not have revoked his postrelease supervision nor raised the question of credit for time incarcerated on those new charges. However, in the present case, the fact that the KPB had not yet revoked White's postrelease supervision does not necessarily mean that White was still serving his term of postrelease supervision.

The United States Supreme Court considered an analogous situation in Zerbst v. Kidwell, 304 U.S. 359, 82 L. Ed. 1399, 58 S. Ct. 872 (1938). In Zerbst, several inmates were paroled before completing their sentences, and while on parole they committed second offenses for which they were convicted and sentenced. The Court rejected the inmates' contention that they began serving the remainder of their first sentences when they were incarcerated for their second offenses. The Court held:

The Court further held that the inmates' original sentences were suspended until completion of their new sentences and that the Board of Parole retained discretionary authority to revoke parole until the original sentences were completed. 304 U.S. at 362. See also Evans v. Hunter, 162 F.2d 800 (10th Cir. 1947) (following Zerbst).

Following the rationale of Zerbst, we conclude that White's postrelease supervision was interrupted and suspended by his reincarceration. Thus, although the KPB had not yet revoked his postrelease supervision, White was no longer serving postrelease supervision. Therefore the time spent incarcerated did not vest as credit against his postrelease supervision term. See 22-3717(r); 22-3722.

Finally, White raises a new argument regarding his sentence. White contends that Bruce failed to calculate White's sentence as starting on January 28, 1995, the date set by the district court. According to White, Bruce has intentionally miscalculated the date his sentence begins to effectively deny his jail time credit in contravention of K.S.A. 21-4614.

White's contention is a mere repetition of his first argument. White bases his entire argument on Bruce's sentence calculations and, by working backwards, deduces that Bruce has miscalculated the sentence by using a later beginning date. However, White fails to recognize that Bruce's sentence calculations are based on the theory that White should not receive credit against his postrelease supervision for the time he was incarcerated. In his calculations, Bruce begins White's sentence on January 28, 1995, but only credits his postrelease supervision up to that date. Bruce calculates that White must serve the remainder of his postrelease supervision term upon completion of the first sentence. The disparity in sentence calculations stems from the dispute concerning White's postrelease supervision. White's claim of error is founded on his first argument and does not merit independent consideration.

Reversed.