State of Kansas, Appellee, v. Dale M.L. Denney, Appellant. (2026)

MEMORANDUM OPINION

Dale M.L. Denney appeals the district court's denial of various postconviction motions raised below in two consolidated cases, including a motion for jail credit and a motion to suspend his sentence. Denney recently received parole in an indeterminate 36-years-to-life prison sentence and is currently serving a consecutive 228-month prison sentence. He claims that the sentencing court erred by not awarding 230 days of jail credit in the 228-month sentence, that he is entitled to a 15-year prior penal credit against the 228-month sentence, and that an error in calculating his discharge date requires a suspension of the indeterminate life sentence. After thoroughly reviewing the record and the parties’ arguments, we affirm the district court's judgment.

Factual and Procedural Background

In 1993, Denney was convicted of two counts of aggravated criminal sodomy, two counts of aggravated sexual battery, two counts of aggravated weapons violation, and one count of aggravated battery, in two separate cases consolidated for trial. The parties are familiar with the underlying facts of Denney's convictions, which the Supreme Court summarized in Denney's direct appeal, State v. Denney, 258 Kan. 437, 439-41, 905 P.2d 657 (1995), and we need not repeat them here.

The district court sentenced Denney in 93 CR 1343 (Case 1) on March 2, 1994, to a controlling term of 36 years to life imprisonment with the Kansas Department of Corrections (KDOC), and the journal entry of judgment provided that the sentence “shall be computed from: July 30, 1993.” The district court sentenced Denney in 93 CR 1268 (Case 2) on March 3, 1994, to a controlling term of 228 months’ imprisonment with the KDOC, and that journal entry provided: “Credit of 230 days is granted for time spent incarcerated” but did not address the date the sentence was computed to have begun.

In March 1998, the district court granted a motion from the State to correct illegal sentence in Case 2 and ordered that Denney be resentenced to 238 months in prison. On appeal, this court reversed the district court's order, vacated the new sentence, and remanded with directions for the district court to reimpose the original 228-month prison sentence. At the resentencing hearing, the district court did not address jail credit. The journal entry of resentencing filed in May 2000 did not reference jail credit but provided that the sentence begins date was July 16, 1993.

Denney was granted parole in Case 1, effective October 1, 2024. Ten days later, Denney filed a “Motion for Jail Time Credit of (230) Days” in Case 2. The motion sought 230 days of jail time credit to be applied to Case 2, without any jail time credit applied to Case 1, so that the jail time credit in the two cases would be “applied in a manner that maximizes said credit and benefits Dale M. Denney.” Denney provided little argument in his motion, though it asserted that the journal entry of resentencing in Case 2 was “without the mention of any Jail Time Credits.” The district court summarily denied the motion in a minutes/order, finding Denney's motion out of time after 24 years had passed since the district court issued the journal entry of resentencing.

Denney moved for reconsideration and argued the district court was statutorily required to award jail credit and could otherwise correct a clerical error in the journal entry of resentencing. In response, the district court entered a minutes/order in December 2024, where the court found that it was unclear whether Denney had received 230 days of jail credit awarded by the court. The district court appointed counsel to Denney “for the sole purpose of contacting KDOC regarding the calculation of his sentence to [e]nsure that Denney has received the 230 days of jail credit ordered to him in 1994 in [Case 2].”

On December 30, 2024, Denney filed identical motions to suspend sentence in both cases in which he requested that the district court suspend the Case 1 sentence, under K.S.A. 1992 Supp. 21-4603(2)(d) and K.S.A. 22-3717(j)(1). The rationale supporting the motions is difficult to follow but appeared to rely on an unspecified document listing a discharge date of “99 99 9999” for the Case 2 sentence, which Denney claimed should list, “October 29, 2041,” representing Denney's anticipatory release date from prison plus 24 months of postrelease supervision in Case 2. The State responded that the statutes on which Denney relied did not authorize the district court to grant Denney's requested relief and argued that if Denney had concerns about his release date calculation, he needed to first address that administratively with the KDOC.

Denney replied through appointed counsel and clarified that a discharge date of “99 99 9999 ․ has been reflected in KDOC documentation” and was contrary to the Case 2 journal entry of resentencing which set his postrelease supervision date in Case 2 at October 29, 2041. Denney also asserted in his reply that “he should receive 15 years of prior penal credit from [Case 1] applied to [Case 2], per 1992 K.S.A. 21-4608(d).”

On January 30, 2025, Denney's appointed counsel filed a letter with the district court in Case 2 regarding the “Application of jail time credit.” Denney's counsel reported that “Michelle Sullivan from KDOC” had clarified that most of the 230 days of jail credit in Case 2 had already been applied to Case 1. Denney's counsel alleged Sullivan reported that the Case 1 sentence begins date of July 30, 1993, reflected “216” days of jail credit with the remaining 14 days applied as nonduplicative credit applied to Case 2. Denney's counsel reported that the 14 days of jail credit in Case 2 was calculated as 230 possible days minus 216 days of credit applicable to both cases that had already been applied to Case 1. Denney's counsel also asserted that “Mr. Denney maintains pursuant to the 1992 version of K.S.A. 21-4608(d), he should receive 15 years of credit from [Case 1], applied as prior penal credit in [Case 2], and his release date would have been October 1, 2024.”

The district court entered a written journal entry on February 27, 2025, where it addressed multiple motions including Denney's motion for jail time credit and motions to suspend. On the motion for jail time credit, the district court found in a brief analysis that KDOC indicated that Denney received “215” days of jail credit in Case 1, representing time spent in custody from July 30, 1993, when the Case 1 charges were filed, and sentencing on March 2, 1994. The district court found Denney was then awarded 14 days in Case 2, so “[d]espite Denney's assertion, he has received all of the jail credit that was awarded him at sentencing.” Attached to the journal entry was a “Sentence Structure” report prepared by Sullivan on January 28, 2025. That report represented that Denney received 215 days of jail credit in Case 1, which was calculated as the time spent incarcerated between July 30, 1993, and March 2, 1994, for a sentence begins date of July 30, 1993. The jail credit in Case 2 was calculated as 230 days representing the time spent incarcerated between July 16, 1993, and sentencing on March 3, 1994. Under the jail credit calculation for Case 2 was a note that Denney would receive 14 days of non-duplicate credit representing the time incarcerated between July 16, 1993, and July 30, 1993, with the credit from July 30, 1993, to March 2, 1994, already credited to Case 1.

Regarding Denney's claim that he should receive 15 years of prior penal credit from Case 1 applied to Case 2, the district court found that Denney supplied no authority to support his interpretation of K.S.A. 1992 Supp. 21-4608(6)(d) and that the statute did not support his claim. Turning to the motions to suspend, the district court found that the cases cited in Denney's motions did not support his argument and that the district court had “no authority to order as Denney desires.” Denney timely appealed the denial of the motion for jail time credit and the motions to suspend.

Analysis

On appeal, Denney first claims the district court erred in denying his motion for 230 days’ jail credit in Case 2. This claim includes a sub-issue whether Denney should receive a 15-year prior penal credit from Case 1 applied to Case 2. Denney next claims the district court erred in denying his motion to suspend the Case 1 sentence. The State asserts that none of these claims are properly before this court because Denney should have brought the claims in a K.S.A. 60-1501 proceeding filed in the county of his confinement instead of through motions filed in the district where he was sentenced. Alternatively, the State asserts that none of Denney's claims have merit. Each claim presents a question of statutory interpretation for which this court has unlimited review. See State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024).

Is Denney entitled to 230 days of jail credit to be awarded in Case 2?

As a threshold issue, the State claims this court lacks jurisdiction to hear the appeal where Denney should have raised his jail credit claims in a K.S.A. 60-1501 petition and not a motion for jail credit. Denney disagrees and argues the district court had authority to correct the journal entries to reflect the jail credit he is entitled to receive. Denney is partially correct and his motion for jail credit before the sentencing court was proper to the extent that Denney is alleging a district court error and not a KDOC error.

A K.S.A. 60-1501 petition is the appropriate vehicle for claims against the KDOC for its failure to properly apply the district court's jail credit award to determine an inmate's appropriate release date. See Safarik v. Bruce, 20 Kan. App. 2d 61, 66-67, 883 P.2d 1211 (1994) (finding a K.S.A. 60-1501 petition is the proper mechanism for challenging the mode or conditions of an inmate's confinement, including administrative decisions made by the KDOC); State v. Chambers, No. 100,493, 2009 WL 2436683, at *2 (Kan. App. 2009) (unpublished opinion) (finding a K.S.A. 60-1501 petition is the proper vehicle for challenging the KDOC's calculation of jail credit).

Denney claims the KDOC has misapplied his 230 days’ jail credit award in Case 2 against his indeterminate sentence in Case 1 for which he has now been paroled. The State is correct that this type of claim should be brought under K.S.A. 60-1501. But Denney also claims the district court erred by not awarding 230 days of jail credit in Case 2 at resentencing because it omitted that time in the journal entry of resentencing. He also now claims that he should receive duplicative jail credit in both cases under the holding in State v. Ervin, 320 Kan. 287, 311-12, 566 P.3d 481 (2025). These latter two claims allege a district court error in awarding jail credit and not a KDOC error in properly applying a jail credit award. Denney's motion before the sentencing court was the appropriate forum for these two claims, and we can address these claims on appeal.

Denney first claims that the district court erred when, in the journal entry of resentencing in Case 2, it did not include any mention of the 230 days of jail credit that the 1994 sentencing journal entry included. But a review of the record shows that Denney is mistaken. The 1994 Case 2 sentencing journal entry listed “230 days” of jail credit. But it is not accurate to say that the journal entry from the Case 2 resentencing included no determination of jail credit. The resentencing journal entry did not specifically include “230 days” of jail credit, but it did include that the sentence was to begin on July 16, 1993. That sentence begins date necessarily represents a calculation of 230 days between the dates of July 16, 1993, when the Case 2 offenses occurred and Denney was arrested, and sentencing on March 3, 1994. Thus, both the 1994 and 2000 Case 2 sentencing journal entries reflect 230 days of jail credit contrary to Denney's assertion.

Denney also relies on the holding in Ervin to argue that he should receive duplicative jail credit in Cases 1 and 2. Ervin holds that under K.S.A. 21-6615, the district court must award one day of jail credit for each day the defendant is incarcerated pending disposition of a 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. Ervin extended the holding in State v. Hopkins, 317 Kan. 652, 657-59, 537 P.3d 845 (2023), that a defendant is entitled to jail time credit against his or her sentence for all time spent incarcerated while the defendant's case was pending disposition, and not just for time the defendant spent in jail “solely” on the charge for which the defendant is being sentenced. Ervin, 320 Kan. at 311-12. Our Supreme Court's holding in Hopkins changed Kansas law on awarding jail credit and expressly overruled its prior decision in Campbell v. State, 223 Kan. 528, 530-31, 575 P.2d 524 (1978). See State v. Romey, 321 Kan. 400, 419-20, 580 P.3d 1 (2025) (recognizing the Hopkins decision as a change in the law and Ervin as a clarification of Hopkins and how it applies).

But Denney cannot receive relief under the holdings in Ervin and Hopkins because his sentence became final and the mandate was issued in his direct appeal before the opinion in Hopkins was released. A sentence is not illegal “because of a change in the law that occurs after the sentence is pronounced.” K.S.A. 22-3504(c)(1). A “change in the law” includes an opinion by a Kansas appellate court, “unless the opinion is issued while the sentence is pending an appeal from the judgment of conviction.” K.S.A. 22-3504(c)(2). Kansas courts apply the longstanding rule that “ ‘changes in the law apply prospectively and only to cases on direct review.’ ” State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019); see also State v. Dawson, 310 Kan. 112, Syl. ¶ 2, 444 P.3d 914 (2019) (“After a direct appeal is final, a movant seeking the correction of an illegal sentence under K.S.A. 22-3504[1] will have the sentence's legality determined by the law in effect at the time the sentence was pronounced, unaffected by any subsequent change in the law.”). Denney's jail credit award was lawful based on the law in effect when his sentences were pronounced. The subsequent rulings in Ervin and Hopkins did not affect the legality of Denney's sentence after it was final. See State v. Jones, No. 129,508, 2026 WL 1506277, at *2 (Kan. App. 2026) (unpublished opinion) (“Jones is not entitled to receive relief under Hopkins because his sentence became final and the mandate was issued in his direct appeal before the opinion in Hopkins was released.”).

To sum up, to the extent that Denney's motion for jail credit is properly before this court, he is not entitled to relief where the record shows no error in how the district court awarded Denney jail credit based on the law in effect when Denney was sentenced. To the extent that Denney's motion raised claims that the KDOC misapplied his 230 days’ jail credit award in Case 2 against his indeterminate sentence in Case 1, this claim should have been brought against the KDOC under K.S.A. 60-1501 in the county where Denney is incarcerated. Although not cited by either party, we observe that in Johnson v. Zmuda, 59 Kan. App. 2d 360, 366, 481 P.3d 180 (2021), this court holds that the proper course for a district court faced with a K.S.A. 60-1501 petition filed in the wrong county is to transfer the case to the district court where the petitioner is being confined. But that is not the situation we have here. Denney sought relief through a motion for jail credit filed before the sentencing court and made no claim against the KDOC. Although Denney's claim alleging KDOC error should have been brought under K.S.A. 60-1501 in the county of Denney's incarceration, the district court could not achieve that end by simply transferring Denney's motion for jail credit to the appropriate county.

Is Denney entitled to a 15-year prior penal credit?

Denney next claims that he is entitled to 15 years of prior penal credit under K.S.A. 1992 Supp. 21-4608(6)(d). Denney raised this claim in his reply to the State's response to his motions to suspend sentence. The issue was more fully argued in the letter from Denney's counsel reporting her findings on the 230-day jail credit issue. K.S.A. 1992 Supp. 21-4608(6)(d) provided:

“When indeterminate sentences are imposed to be served consecutively to sentences previously imposed in any other court or the sentencing court, the aggregated minimums and maximums shall be computed from the effective date of the subsequent sentences which have been imposed as consecutive. For the purpose of determining the sentence begins date and the parole eligibility and conditional release dates, the inmate shall be given credit on the aggregate sentence for time spent incarcerated on the previous sentences, but not exceeding an amount equal to the previous minimum sentence less the maximum amount of good time credit that could have been earned on the minimum sentence. For the purpose of computing the maximum date, the inmate shall be given credit for all time spent incarcerated on the previous sentence. This method for computation of the maximum sentence shall be utilized for all sentences computed pursuant to this subsection after July 1, 1983.”

Denney interprets this provision to mean that the district court was required to apply a 15-year prior penal credit from the time served in the Case 1 sentence to the Case 2 sentence. Denney asserts here that this claim revolves around the conversion of the previously indeterminate sentence in 87 CR 944 into a determinate 36-month sentence, which he claims affects whether Cases 1 and 2 should be aggregated in a manner that would require 15-year prior penal credit under the statute. He asserts in conclusory fashion and without support that if he “was not on parole in 1987-CR-944 and received new charges [in Cases 1 and 2], then KDOC must aggregate [Case 2] and [Case 1].” He ultimately claims that “KDOC is treating the 36-life sentence in [Case 1] as separate, contrary to KDOC documents, to keep Mr. Denney from receiving 15 years of prior penal credit applied to the 228 month sentence in [Case 2], per K.S.A. 21-4608(d).”

The district court found that Denney supplied no authority to support his interpretation of K.S.A. 1992 Supp. 21-4608(6)(d) and that the statute did not support his claim. But for the reasons we have already discussed, Denney should have brought this claim in a K.S.A. 60-1501 petition. This court has already ruled that a previous attack by Denney on “KDOC's computation and aggregation of his sentences” must be raised in a K.S.A. 60-1501 petition in the county of confinement and not the county where he was sentenced. See State v. Denney, No. 98,288, 2008 WL 3367606, at *1 (Kan. App. 2008) (unpublished opinion) (addressing the facts surrounding 87 CR 944 and its interaction with Cases 1 and 2). Denney's claim for a 15-year prior penal credit alleges a KDOC error in aggregating Denney's sentences and determining his release date—the type of claim that Denney must bring against the KDOC under K.S.A. 60-1501.

Did the district court err in denying Denney's motion to suspend the Case 1 sentence?

Denney claims the district court erred in denying his motion to suspend the Case 1 sentence. Denney argues that because parole was granted in Case 1, he is now only serving his sentence in Case 2, which he asserts to mean that he should be discharged from all sentences in both cases on October 29, 2041. That date comes from his potential October 29, 2039 release date in Case 2 with good time credit plus 24 months’ postrelease supervision. In other words, Denney argues that when he completes his Case 2 prison term and postrelease supervision, he should at that point be discharged from KDOC custody entirely, instead of remaining on parole in Case 1. Thus, he wants the KDOC calculation documents to reflect an October 29, 2041 discharge date and believes suspending the Case 1 sentence is how to make that happen.

We again agree with the State that Denney should have brought this claim in a K.S.A. 60-1501 petition and it is not properly before this court. Denney's core complaint is that the KDOC has miscalculated, or not calculated at all, his discharge date, and he alleges no district court error on this issue. A K.S.A. 60-1501 petition filed in the county of incarceration is the appropriate vehicle for claims that the KDOC has miscalculated a release date. See State v. Mebane, 278 Kan. 131, 136, 91 P.3d 1175 (2004) (holding a challenge to KDOC's calculation of a parole eligibility date should be raised in a K.S.A. 60-1501 petition). Because Denney challenges only the KDOC's calculations of his discharge date, he should have raised this claim in a K.S.A. 60-1501 petition. The claim did not allege a district court error and was not properly raised in the sentencing court.

Affirmed.

Per Curiam: