State of Kansas, Appellee, v. Terrence M. Douglas, Appellant. (2026)

MEMORANDUM OPINION

Atcheson, J.:

Defendant Terrence M. Douglas appeals the Sedgwick County District Court's denial of jail credit to him on a sentence in one case it ordered served consecutively to a sentence it imposed in another case. Given the chronology of the cases and changes in how jail credit should be determined under K.S.A. 21-6615 over the past several years, we find the district court erred. Douglas is entitled to the same jail credit in each case, resulting in a double counting as the Kansas Supreme Court recognized in State v. Hopkins, 317 Kan. 652, 657, 537 P.3d 845 (2023), and State v. Ervin, 320 Kan. 287, 311-12, 566 P.3d 481 (2025). The Kansas Legislature amended K.S.A. 21-6615 in 2024 and earlier this year to negate Hopkins and Ervin. If applied to Douglas, those legislative fixes would violate the Ex Post Facto Clause of the United States Constitution. We, therefore, reverse the district court's denial of jail credit and remand with directions that Douglas be given credit for 211 days he spent in custody awaiting disposition of this case.

The procedural history here shows that Douglas was required to comply with the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., based on a 2011 conviction for aggravated assault. In 2021, Douglas pleaded guilty to violating KORA. In that case, the district court imposed a 37-month prison sentence and placed Douglas on probation. Fast-forward to this case. The State charged Douglas with violating KORA by failing to register by April 1, 2024. Douglas pleaded guilty to that charge in October 2024. At a hearing on February 7, 2025, the district court sentenced him to 60 months in prison in this case, revoked his probation on the 2021 conviction, and ordered the sentences to be served consecutively. The district court awarded Douglas 211 days of jail credit on the 37-month sentence in the earlier case and no jail credit on the sentence in this case precisely because the 211 days he spent in custody had been credited in the earlier case. Douglas appeals and challenges only the denial of jail credit in this case.

The outcome of the appeal turns on the interplay of Hopkins and Ervin and the 2024 and 2026 amendments to the jail credit statute. We see no disputed facts, so the issue presents a question of law. Accordingly, we owe no deference to the district court's ruling. State v. Mejia, 58 Kan. App. 2d 229, 231-32, 446 P.3d 1217 (2020) (when material are facts undisputed, issue presents question of law; no deference given to district court).

If Hopkins and Ervin apply, then Douglas should have received 211 days of jail credit in this case, even though he also got credit for that time in the earlier case. The 2024 amendment to K.S.A. 21-6615 went into effect on May 23, 2024, and precluded a double credit of jail time when a defendant receives consecutive sentences in separate cases. The amendment did not contain language requiring it to be applied retroactively.

As we have outlined, Douglas committed the crime of conviction in this case— failing to register under KORA—as of April 1, 2024, before the amendment went into effect. But he was sentenced after the effective date. That prompted the State to argue on appeal that the 2024 amendment should apply, overriding Hopkins and Ervin. Conversely, Douglas argues the jail credit law in effect at the time he committed the crime governs. He argues applying the 2024 amendment to him would violate the Ex Post Facto Clause. The State counters that there would be no constitutional violation.

Following the court's decision in Ervin, the Legislature again stepped into the jail credit fray and amended K.S.A. 21-6615 effective July 1, 2026, to again preclude double credit for consecutive sentences and included explicit language requiring retroactive application of the amendment. Because we had not resolved Douglas’ appeal before July 1, we asked the parties to submit supplemental briefs regarding the 2026 amendment. They have done so.

Although the question of whether the 2024 amendment could be applied to Douglas because he was sentenced after its effective date might be fairly debated, that application would deprive him of the benefit of Hopkins and its construction in Ervin. And that poses an ex post facto problem insofar as it would adversely affect his incarceration for criminal conduct occurring before the amendment went into effect. See Weaver v. Graham, 450 U.S. 24, 33, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981) (statute that “substantially alters the consequences attached to a crime already completed” deemed retroactive and “can be constitutionally applied ․ only if it is not to [defendant's] detriment”). The 2026 amendment presents the same problem if that change were applied to Douglas. Given the express retroactivity language in the 2026 amendment, we cannot avoid the ex post facto question. So we are not unnecessarily reaching and deciding a constitutional claim. See Butler v. Shawnee Mission School District Board of Education, 314 Kan. 553, 573-75, 502 P.3d 89 (2022) (courts should avoid deciding constitutional issues unless necessary). We address the 2024 and 2026 amendments jointly in taking up the issue.

An ex post facto violation occurs if a defendant is punished for an act that was not criminal at the time they did the act, the punishment has been made more burdensome, or a defense to the crime has been abrogated. See Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 70 L. Ed. 216 (1925); State v. Todd, 299 Kan. 263, 276-77, 323 P.3d 829 (2014). The jail credit amendments implicate the second type of violation. That may occur when the change in the governing law creates a “significant risk of prolonging [a defendant's] incarceration.” Garner v. Jones, 529 U.S. 244, 251, 120 S. Ct. 1362, 146 L. Ed. 2d 236 (2000). And the violation need not involve a vested right. Weaver, 450 U.S. at 30-31. Jail credit is neither a constitutional nor an inherent right of criminal defendants; it is purely statutory. State v. Hopkins, 295 Kan. 579, 581, 285 P.3d 1021 (2012). But that is enough to bring jail credit within the scope of the Ex Post Facto Clause because it affects how long a defendant will be incarcerated while serving a prison sentence.

In Weaver, the Court found an ex post facto violation when Florida changed and applied retroactively the way it determined “gain-time” credit (essentially time off a sentence for good behavior in prison) in a manner disadvantaging inmates. 450 U.S. at 33-34. The Kansas Supreme Court reached a like conclusion about good-time credit in Stansbury v. Hannigan, 265 Kan. 404, 417, 960 P.2d 227 (1998). Good-time credit presents an exceptionally close analogy to jail credit for ex post facto purposes. They are both statutory grants that serve to shorten the time convicted defendants must spend in prison to satisfy their sentences.

We conclude that the 2024 and 2026 amendments to K.S.A. 21-6615 would violate Douglas’ rights protected in the Ex Post Facto Clause. They would prolong his incarceration for a completed criminal act and would necessarily do so through an impermissible retroactive application. Our ex post facto analysis and conclusion parallel those in the decision of this court in State v. Barrager, 67 Kan. App. 2d ___ (No. 128,787, this day decided), slip op. at 6-7.

We, therefore, reverse the district court's judgment to the extent it denies Douglas 211 days of jail credit in this case, and we remand with directions that the district court enter an amended judgment awarding him 211 days of jail time.

Reversed and remanded with directions.