State of Kansas, Appellee, v. Phat M. Tran, Appellant. (2026)

MEMORANDUM OPINION

Phat M. Tran's opportunity to follow the conditions of his probation was not successful. He now timely appeals the revocation of his probation. On appeal, he raises questions based on the sentence when it was originally imposed and the denial of his request to modify the sentence when the district court revoked his probation. He also claims the district court erred by imposing his misdemeanor jail sentence consecutive to his prison sentence, and the district court failed to award the jail time credit he was entitled to. After review, we find the sentence imposed upon revoking Tran's probation was consistent with the underlying prison term pronounced at his original sentencing, which was a lawful sentence; however, because of recent changes in Kansas law, the district court erred in its award of jail time credit. We affirm in part, vacate his sentence in part, and remand with directions.

Factual and Procedural Background

For crimes committed in August 2022, Tran plead guilty to theft, fleeing or attempting to elude law enforcement, and criminal damage to property—all felonies—and violation of a protective order, a misdemeanor. As part of a plea agreement, the parties jointly recommended to the district court that Tran's misdemeanor jail sentence be served concurrent with his felony sentences.

At sentencing, the State neglected to orally recommend Tran's misdemeanor sentence be served concurrent with his felony sentences, although it did tell the district court that it was bound by the plea agreement. The district court sentenced Tran to an underlying prison sentence of 31 months with a consecutive 12-month jail sentence for the misdemeanor and then, upon Tran's request, granted him a dispositional departure to probation for 12 months. The sentencing hearing concluded, and no one objected to the consecutive 43-month sentence imposed by the district court.

Probation for Tran did not go well. Two months later, the State filed a probation violation warrant, alleging Tran had tested positive for methamphetamine. At the probation violation hearing, Tran stipulated to drug use. The district court then orally recited the events of the case to that point, recognizing Tran presented with a criminal history score of A with over 30 convictions in the last 20 years. The district court also noted from the sentencing hearing that it “ran the counts consecutive under the plea, controlling sentence of 43 months, placed the defendant on probation.”

The State, at the revocation hearing, requested the district court revoke Tran's probation and impose the original sentence. Tran's probation officer recommended a two-day jail sanction followed by outpatient treatment. Tran asked for another chance at probation.

The district court noted Tran received a dispositional departure sentence to probation before revoking his probation and imposing the underlying sentence. Tran then asked to modify his sentences, but the district court denied the request. The district court stated from the bench Tran had accrued approximately 20 months of jail time credit but did not discuss the credit beyond this rough estimate. The journal entry of sentencing reflected an award of 612 days of jail time credit. Additional facts are set forth as necessary.

Analysis

There was no abuse of discretion in denying Tran's request to modify his consecutive sentences upon revocation of his probation.

Tran argues the district court erred as a matter of fact when it stated his plea agreement recommended consecutive sentences. He contends this error of fact requires a remand to adjust his sentence. The State responds that the district court's decision to revoke probation and impose the original consecutive sentences was reasonable.

Once a probation violation is established, a district court has discretion to revoke probation and impose the original sentence unless the court is otherwise limited by statute. State v. Tafolla, 315 Kan. 324, 328, 508 P.3d 351 (2022); see K.S.A. 22-3716 (requiring graduated sanctions before revocation in certain circumstances). Kansas appellate courts apply an abuse of discretion standard of review on appeal from the district court's decision to deny a motion for sentence modification. State v. Ralston, 63 Kan. App. 2d 447, 455, 529 P.3d 1275 (2023). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Younger, 320 Kan. 98, 137-38, 564 P.3d 744 (2025).

Tran claims the district court's description of the underlying sentence contained an error of fact. In the plea agreement, the parties recommended a controlling prison sentence of 31 months, with the misdemeanor 12-month jail sentence running concurrent with the felony prison sentence. The State did not expressly address this at sentencing but acknowledged it was bound by the plea agreement. Tran clarified the parties were recommending concurrent sentences. The district court never stated whether it intended to follow or depart from this recommendation before it imposed all sentences consecutive for a controlling sentence of 43 months’ imprisonment.

When revoking Tran's probation and imposing the underlying sentences, the district court stated that it originally “ran the counts consecutive under the plea, controlling sentence of 43 months.” We are unpersuaded this meant the district court believed the recommendation under the plea agreement was for the sentences to run consecutive. “[U]nder the plea” could simply mean the district court ordered consecutive sentences for the charges to which Tran pled. The parties were bound by the plea agreement; the district court was not. The original sentence, when imposed, was lawful, and the district court, upon revoking Tran's probation, was within its authority to deny his request for a modified sentence and to impose the original sentence. The district court did not abuse its discretion in ordering Tran to serve his full underlying sentence.

The district court erred in calculating Tran's jail time credit.

Tran argues the district court neglected to include all time he spent incarcerated pending disposition of his cases, pointing out that he spent an additional 175 days in custody on municipal cases in Wichita. The State responds that Tran is not entitled to additional jail time credit because he was sentenced after the 2024 version of K.S.A. 21-6615 went into effect and further asserts that State v. Ervin, 320 Kan. 287, 566 P.3d 481 (2025), was wrongly decided.

Tran acknowledges he did not raise the issue of jail time credit before the district court. He asks us to consider the issue because the district court made no jail time credit award from the bench, leaving him unable to object to the calculation until after the journal entry had been filed. A failure to object does not prejudice a party who did not have an opportunity to object when the district court made its ruling or order. K.S.A. 22-3417; State v. Gonzalez, 307 Kan. 575, 591, 412 P.3d 968 (2018). He also argues this issue primarily involves “a question of law arising on proved or admitted facts and is determinative of the case.” See State v. Allen, 314 Kan. 280, 283, 497 P.3d 566 (2021). In its brief, the State takes no position on the issue of preservation.

Tran is correct that the district court never announced how much jail time credit it would award him at the revocation hearing. That determination was made in the journal entry filed at a later date. Under these circumstances, it is appropriate for us to review Tran's jail time credit issue for the first time in this appeal. Our review turns on statutory interpretation, which presents a question of law subject to unlimited review. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024).

Tran's right to jail time credit is controlled by K.S.A. 2022 Supp. 21-6615(a). See State v. Mitchell, 66 Kan. App. 2d 196, 207, 579 P.3d 970 (2025) (defendant's jail time credit governed by statute in effect at time crime committed), rev. granted 321 Kan. 793 (2026). K.S.A. 2022 Supp. 21-6615(a) provides, in relevant part:

“(a) 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.”

In Ervin, our Supreme Court held that this version of K.S.A. 21-6615(a) requires the district court to award credit for all time spent in custody pending disposition of the defendant's case, “regardless of whether [the defendant] received an allowance for some or all that time against a sentence in another case.” 320 Kan. at 311-12. Here, based on the holding in Ervin, the district court may have incorrectly accounted for all the time Tran spent in custody pending disposition of his cases. Tran is entitled to jail time credit for all the time he spent in custody pending disposition of these cases, including municipal jail time, meaning a remand is necessary to recalculate his jail time credit. See State v. Zongker, 322 Kan. 137, 143, 586 P.3d 769 (2026); Ervin, 320 Kan. at 311-12; see State v. Hopkins, 317 Kan. 652, 659, 537 P.3d 845 (2023). Even if we agree with the State's argument that Ervin was wrongly decided, we are still bound to follow our Supreme Court's precedent. See State v. Patton, 315 Kan. 1, 16, 503 P.3d 1022 (2022).

Recently, the 2026 Kansas Legislature amended K.S.A. 21-6615 to include language regarding retroactivity. L. 2026, ch. 62, § 1. That amendment is not effective until July 1, 2026, and neither party argued we should apply the 2026 amendment to this case. Consequently, we take no position on any potential impact the 2026 amendment might have on jail time credit that Tran is entitled to receive under K.S.A. 21-6615.

We affirm the revocation of Tran's probation and the district court's order imposing his original sentence of 43 months; however, we vacate the jail time credit portion of his sentence and remand for the district court to recalculate Tran's jail time credit in keeping with Ervin and Zongker’s interpretation of K.S.A. 21-6615(a).

Affirmed in part, vacated in part, and remanded with directions.

Per Curiam: