State of Kansas, Appellee, v. Deara Cole, Appellant. (2026)

MEMORANDUM OPINION

In this appeal, we must focus on how much jail credit an offender should receive on her sentence arising from a subsequent prosecution and conviction. Deara Cole appeals a district court's jail credit award, claiming the court failed to give her credit for 101 days she spent incarcerated. We must follow clear precedent given by our Supreme Court and hold that Cole is correct, and we remand for resentencing.

In her first prosecution, Cole pled guilty to one count of aggravated battery committed in March 2022. The court departed from the guidelines and placed Cole on 36-months probation rather than sending her to prison. The court also sentenced her to a suspended 172-month prison term.

Then, in December 2023, the State charged Cole with violating the Offender Registration Act. She was arrested on the new charge. While awaiting disposition of both of her cases—a probation violation in the aggravated battery case and the disposition in the offender registration charge—Cole was incarcerated from December 24, 2024, to April 4, 2025—101 days.

The court revoked Cole's probation in the first case, the conviction for aggravated battery, but at the same time reduced her prison sentence to 40-months. The court awarded 297 days of jail credit toward that sentence, for the time she spent incarcerated for the original case and the new offender registration prosecution.

Then, for the offender registration crime, Cole received a 40-month prison term to be served consecutively to her original 40-month sentence. The district court awarded no jail credit for that new sentence. Cole did not receive the 101 days credit on that sentence.

It is the failure to receive that 101 days credit toward her second 40-month sentence that is the basis of Cole's appeal.

The law we must follow is well established.

Under K.S.A. 21-6615, defendants are entitled to have their sentences reduced by the number of days they spend incarcerated pending the disposition of their case. The statute plainly states that the commencement date of a defendant's sentence “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.” K.S.A. 21-6615(a).

Recently, our Supreme Court held that the statute requires that a defendant must receive one day of credit for each day spent incarcerated pending the disposition of their case, even if this results in duplicative credit. State v. Ervin, 320 Kan. 287, 312, 566 P.3d 481 (2025). Applying the Ervin holding, a panel of this court recently found that a defendant sentenced to consecutive prison sentences was entitled to jail credit in both cases for the same days spent incarcerated pending disposition. State v. Watie, 66 Kan. App. 2d 166, 169, 577 P.3d 674 (2025), rev. denied 321 Kan. 795 (2026). We employ similar logic here.

Cole argues that the district court erred in failing to award the 101 days of jail credit for her new case since she spent those days incarcerated pending the disposition of both of her cases. Under Ervin, she contends that the statute requires the district court award jail credit for each day spent incarcerated, even if it leads to duplicative credit.

The law in effect at the time defendants commit their crimes controls their sentencing. State v. McLinn, 307 Kan. 307, 337, 409 P.3d 1 (2018). Because Cole committed her crime in December 2023, before the 2024 amendments to K.S.A. 21-6615, those amendments do not apply here. Thus, under the statute in effect in December 2023, Cole is entitled to duplicative jail credit because she was incarcerated pending disposition of her case. Because the district court failed to award the jail credit for her time spent incarcerated, we must remand this case for resentencing in accordance with the statute in effect when Cole committed her crime.

Cole was incarcerated from December 24, 2024, to April 4, 2025—101 days, awaiting trial on the offender registration charge. She is legally entitled to such credit under the ruling in Ervin.

Sentence vacated and case remanded for resentencing with directions that Cole receive 101 days jail credit on her sentence for the offender registration charge.

Sentence vacated and case remanded with directions.

Hill, J.: