State of Kansas, Appellee, v. Marvin C. Hernandez, Appellant. (2026)

MEMORANDUM OPINION

In March 2024, Marvin C. Hernandez pleaded guilty to multiple felony counts. At sentencing, the district court imposed an underlying prison sentence but granted Hernandez a dispositional departure and placed him on probation. Several months later, the State filed a warrant for Hernandez’ arrest based on a litany of alleged probation violations. At the probation violation hearing, Hernandez stipulated to all the alleged violations. The district court then bypassed intermediate sanctions and revoked Hernandez’ probation relying on the dispositional departure exception. When imposing the underlying prison sentence, the district court awarded Hernandez with some jail time credit against his sentence. Hernandez timely appeals, arguing the district court abused its discretion by revoking his probation and incorrectly awarding jail time credit. Finding no abuse of discretion, we affirm the revocation of his probation but vacate the jail credit portion of his sentence and remand for reconsideration of the appropriate jail time credit.

Factual and Procedural Background

On March 2, 2023, Hernandez was charged with one count of felony burglary, one count of felony attempted burglary, one count of misdemeanor theft, and two counts of misdemeanor criminal damage to property in case No. 23-CR-467 (Case 1). Only a week later, the State charged Hernandez with 18 counts of various felony and misdemeanor crimes in case No. 23-CR-519 (Case 2). After several pretrial motions and hearings, Hernandez entered into a plea agreement with the State. In exchange for the State dismissing most of the charges against him, Hernandez pled guilty to multiple felony counts, including an amended count of attempted burglary in Case 1 and, in Case 2, four counts of criminal damage to property, one count of attempted burglary, and one count of burglary.

At a plea hearing, the district court accepted the plea and found Hernandez guilty. In May 2024, the district court held a sentencing hearing during which it sentenced Hernandez to a total underlying prison term of 68 months. Yet the district court chose not to follow the State's recommendations to immediately impose the prison sentence and granted Hernandez’ motion for a dispositional departure to probation. The district court then placed Hernandez on a “highly-structured probation,” including GPS monitoring and house arrest, along with regular restitution payments, in order to “try to make the[ ] victims whole.”

Several months later, the State issued a warrant for Hernandez’ arrest alleging that he violated the conditions of his probation through a string of unapproved GPS movements and failure to make required monthly payments toward costs and restitution. At the probation violation hearing, Hernandez admitted to the allegations contained in the warrant and waived his right to an evidentiary hearing. Hernandez’ probation officer recommended that the district court give him a 60-day jail sanction, and Hernandez asked the district court to follow this recommendation. On the other hand, the State asked for the district court to revoke Hernandez’ probation and impose his underlying sentences. Hernandez’ counsel also asked that, if the district court chose to revoke Hernandez’ probation, the district court impose a modified sentence of 41 months. Ultimately, the district court revoked Hernandez’ probation based on its original grant of a dispositional departure and declined to modify his underlying sentence.

When imposing his underlying prison sentence, the district court noted that Hernandez was owed roughly 14 months of jail time credit. But the district court did not award jail time credit to Hernandez on the record during the hearing. Instead, it awarded jail time credit of 468 days toward Hernandez’ sentence in Case 1 in the journal entry of his probation violation hearing. In Case 2, the district court awarded him with 258 days of jail time credit toward that sentence in the journal entry, finding that 209 days spent in the Sedgwick County Jail were previously awarded in Case 1.

Hernandez timely appeals.

Analysis

The district court did not abuse its discretion when revoking Hernandez’ probation.

Hernandez first argues that the district court abused its discretion when it revoked his probation and imposed his underlying sentence without imposing an intermediate sanction. He claims that the district court's decision was unreasonable because the allegations of missed payments were remedied the following month and the violations of his house arrest requirements occurred because he needed to make various trips to pay his rent.

The establishment of a probation violation gives the district court discretion to revoke the offender's probation and impose the original sentence unless limited by statute. See State v. Dooley, 308 Kan. 641, 647-48, 423 P.3d 469 (2018). Appellate courts review a district court's revocation of probation and the imposition of an underlying sentence for an abuse of discretion. State v. Tafolla, 315 Kan. 324, 328, 508 P.3d 351 (2022). A district court abuses its discretion if its decision is (1) arbitrary, fanciful, or unreasonable; (2) based on a legal error; or (3) based on factual error. The burden to prove an abuse of discretion is on the party asserting the error. 315 Kan. at 328.

Under K.S.A. 2022 Supp. 22-3716(c)(1)(A)-(C), a sentencing court may impose a variety of graduated intermediate sanctions for an established probation violation. The plain text of the statute mandates that a district court cannot normally revoke probation unless the intermediate sanctions scheme is utilized. K.S.A. 2022 Supp. 22-3716(c)(1)(C). But there are exceptions to this rule that permit immediate revocation after a violation without first imposing a sanction.

One of these exceptions lies in K.S.A. 2022 Supp. 22-3716(c)(7)(B). This statutory subsection permits the district court to directly revoke an offender's probation if the probationer was initially granted probation as the result of a dispositional departure. K.S.A. 2022 Supp. 22-3716(c)(7)(B). And, our Supreme Court has been clear that “the dispositional departure statutory exception does not require particularized findings.” Tafolla, 315 Kan. at 331.

Given the clear language of K.S.A. 2022 Supp. 22-3716(c)(7)(B), the revocation of Hernandez’ probation was not an error of law, and he does not argue as much. He likewise does not argue that the district court made any error of fact in its decision. Hernandez simply argues the district court's decision was unreasonable, because the probation violations he admitted to were “either misunderstandings or were explained to the district court.”

On review of the record, we cannot find that the district court abused its discretion in revoking Hernandez’ probation. Most notably, Hernandez benefitted from the district court's grant of a dispositional departure. The district court articulated that it was trying to provide an opportunity for Hernandez to work while on probation in order to pay restitution for the damage he caused while committing his numerous crimes. Given his extensive criminal history, the district court made clear at sentencing that this chance was a “zero tolerance” probation.

But even having been clearly informed of this zero tolerance opportunity, Hernandez still failed to strictly comply with his probation conditions, and he admitted to the violations, even while disputing the nature of those violations. The district court heard Hernandez’ excuses for violating probation, including an email from Hernandez’ employer excusing some of his GPS movements as related to his job requirements. Yet his probation officer testified that she could not verify from the employer's email the specific job locations and times Hernandez was at work, and Hernandez failed to provide that information. Additionally, the probation officer was unable to verify with Hernandez’ landlord that his claims that he needed to go to multiple ATMs and locations to pay his rent were accurate.

The district court was clear that after seven months of house arrest, Hernandez had already been cautioned by his prior probation officer about other possible violations, and Hernandez should have been well aware of the behavior required to remain on probation. The court explained, “there's been a lot of questionable locations and behavior of yours on house arrest. In the end, [the prior concerns weren't] sufficient or not clear-cut enough to find violations, so you were not violated, and you were not [previously] faced with a [probation violation].” But given his history, the court found that Hernandez simply “want[s] to be on probation, and in simplest terms, [he wants] to do it [his] own way[, but] [t]hat's not how it works.” Because he got a “major break on this case,” yet could not manage to remain violation-free, the district court found he was simply not amenable to probation. The court noted “this is a classic when you're given an inch, you take a mile. And you were given many inches, and you just kept pushing it and pushing it.” To remain on probation, the district court reasoned, “teaches you a bad lesson, which is you can push the boundaries without consequences.”

Under the facts of this case, we cannot say no other district court would have revoked Hernandez’ probation and ordered him to serve his original sentence. Accordingly, the district court did not abuse its broad judicial discretion.

The district court did not properly apply jail time credit under Ervin.

Next, Hernandez reasons that he is owed additional jail time credit toward his sentence in Case 2 because the district court failed to award him the 209 overlapping days awarded in Case 1. The State counters that K.S.A. 2024 Supp. 21-6615(a) applies and bars Hernandez from receiving additional jail time credit. Alternatively, the State argues that State v. Ervin, 320 Kan. 287, 566 P.3d 481 (2025), was wrongly decided.

Hernandez acknowledges he did not preserve his jail credit argument by presenting it first to the district court. Appellate courts generally do not address issues raised for the first time on appeal but may do so when an exception to the preservation rule applies. State v. Allen, 314 Kan. 280, 283, 497 P.3d 566 (2021). These exceptions include: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the district court was right for the wrong reason. 314 Kan. at 283.

Hernandez notes that the Kansas Supreme Court applied this first preservation exception—this is a question of law presented on admitted facts—to reach its decision in Ervin, 320 Kan. at 306. He is correct, and we will address the issue as a question of law which is determinative of the appeal.

A jail time credit question involves statutory interpretation that presents a question of law over which appellate courts have unlimited review. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024).

Applicable when Hernandez committed his crimes in January, February, and March 2023, K.S.A. 2022 Supp. 21-6615(a) stated, 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.”

Over four decades of construing the jail-credit statute, Kansas courts awarded a defendant credit “only for time spent in custody ‘solely’ on the charge being sentenced—not for time ‘ “spent in jail upon other, distinct, and wholly unrelated charges.” ’ ” State v. Zongker, 322 Kan. 137, 139, 586 P.3d 769 (2026). Then the Supreme Court reversed course, finding that K.S.A. 21-6615’s “plain language required credit for ‘all time spent in custody pending the disposition of his or her case,’ regardless of whether the defendant ‘had other cases pending against him while he was in jail.’ ” 322 Kan. at 139 (quoting State v. Hopkins, 317 Kan. 652, 657, 659, 537 P.3d 845 [2023]).

In response to our Supreme Court's decision in Hopkins, the Kansas Legislature promptly amended K.S.A. 21-6615 in 2024. This amendment added K.S.A. 2024 Supp. 21-6615(a)(2), which states:

“(2) When computing the defendant's sentence, the following shall not be considered time spent incarcerated pending disposition of the defendant's case:

(A) Any time awarded as credit in another case when consecutive sentences are imposed on a defendant; or

(B) any time spent incarcerated in another jurisdiction if no hold has been issued in such jurisdiction for the case being sentenced.”

Then, in Ervin, the Kansas Supreme Court interpreted K.S.A. 21-6615(a) “as worded when Ervin was sentenced” before the May 2024 amendment, see 320 Kan. at 305, 308, to require one day of jail credit for “each day that [a defendant] was incarcerated pending disposition of [a criminal] 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.

Hernandez maintains the 2024 amendment to K.S.A. 21-6615(a) is not retroactive, and that the allocation of his jail time credit is controlled by the pre-2024 version of the statute and the Ervin and Hopkins decisions. The State responds that K.S.A. 2024 Supp. 21-6615(a) applies.

A panel of this court recently addressed the issue of retroactivity in State v. Mitchell, 66 Kan. App. 2d 196, 203, 579 P.3d 970 (2025), rev. granted 321 Kan. 793 (2026). Our court noted that Kansas appellate courts have “long held” that the sentencing statute in effect at the time a defendant committed a crime was the appropriate statute to use for sentencing the defendant and explained that courts presume a statute does not apply retroactively without statutory language clearly evidencing an intent to apply the statute retroactively. 66 Kan. App. 2d at 203-04. Because the “[L]egislature provided no indication that it intended the amended jail-credit statute to apply retroactively in any respect,” our court found the Legislature's 2024 amendments to K.S.A. 21-6615 are not retroactive. 66 Kan. App. 2d at 204, 206.

Although Mitchell did not involve a probation revocation, this case still remains procedurally similar to Mitchell, where Mitchell's crimes were committed in 2023 and he was sentenced in spring 2024. Hernandez’ crimes of conviction occurred between January and March 2023, and he was sentenced on May 8, 2024. As in Mitchell, here the district court erred by not awarding jail credit under K.S.A. 2022 Supp. 21-6615 because the 2024 amendment was not effective when Hernandez committed his crimes. See 66 Kan. App. 2d at 207. Hernandez’ sentencing is governed by K.S.A. 2022 Supp. 21-6615(a), and under Ervin, Hernandez is entitled to jail credit for each day he was incarcerated pending disposition of each of his cases even if that results in duplicative credit. 320 Kan. at 311-12.

The State alternatively argues that both Ervin and Hopkins were wrongly decided. Even if this were true, we are duty bound to follow Kansas Supreme Court precedent unless there is some indication that the Supreme Court is departing from its previous position. State v. Patton, 315 Kan. 1, 16, 503 P.3d 1022 (2022). As the State acknowledges, this court has no authority to overrule Ervin or Hopkins.

We pause to note that another panel of this court has found that Ervin applies to a probation revocation appeal. See State v. Brown, 65 Kan. App. 2d 663, 672-73, 570 P.3d 1278, rev. denied 321 Kan. 791 (2025). Specifically, the panel explained that Brown's first opportunity to challenge her jail time credit was when the district court revoked her probation and then calculated jail time credit. 65 Kan. App. 2d at 672. Likewise, here Hernandez had no prior opportunity to challenge jail credit as none was calculated until his probation was revoked.

The record establishes that the district court declined to award Hernandez with 209 days of jail time credit in Case 2 because he was serving those 209 days also toward Case 1. Following our Supreme Court's lead in Ervin and Hopkins, this is an error. Regardless of whether those 209 days were already credited to Hernandez in Case 1, he is entitled to those 209 days of credit also toward his sentence in Case 2 under K.S.A. 2022 Supp. 21-6615(a). See Ervin, 320 Kan. at 311-12. As a result, we vacate the jail time credit portion of Hernandez’ sentence and remand to the district court to apply the appropriate jail credit.

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

Per Curiam: