State of Kansas, Appellee, v. Zachary Neil Salazar, Appellant. (2026)

MEMORANDUM OPINION

Zachary Neil Salazar appeals from sentences imposed in two consolidated cases after he pled guilty to battery against a correctional officer in case No. 23-CR-199 and to an amended count of criminal threat in case No. 20-CR-697. He raises two issues: (1) The district court denied him jail credit for time spent in custody while case 20-CR-697 was pending disposition; and (2) the district court engaged in unconstitutional judicial factfinding under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it implicitly found he was under the age of 25 at the time of the offense in case 20-CR-697 for purposes of scoring a prior juvenile adjudication.

While this appeal was pending, the Legislature amended K.S.A. 21-6615, effective July 1, 2026, to bar duplicative jail credit across consecutive sentences and to apply the bar to direct appeals pending on that date. L. 2026, ch. 62, § 1 (codified at K.S.A. 2026 Supp. 21-6615[d]). We ordered supplemental briefing on the amendment's effect. We hold that K.S.A. 2026 Supp. 21-6615(d) applies to this appeal by its plain terms and that its application to Salazar violates neither the Ex Post Facto Clause of Article 1, Section 10 of the United States Constitution nor the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We affirm on the jail-credit issue and decline to reach Salazar's unpreserved constitutional challenge to his criminal history.

FACTS

In December 2020, the State charged Salazar in case 20-CR-697 with aggravated burglary, attempted aggravated robbery, and aggravated assault with a deadly weapon. In April 2023, the State charged him in case 23-CR-199 with battery against a county correctional officer or employee for an offense committed in November 2022.

On April 23, 2024, Salazar and the State entered a plea agreement. Salazar agreed to plead guilty to battery against a correctional officer in case 23-CR-199 and to an amended count of criminal threat in case 20-CR-697. In exchange for his guilty plea, the State agreed to dismiss the remaining charges pending against Salazar in case No. 21-CR-661 and case No. 22-CR-702. The parties jointly recommended a durational departure to 60 months in case 23-CR-199 and to 8 months in case 20-CR-697, to run consecutive for a total of 68 months. The plea agreement included Salazar's waiver of his right to a jury trial in the cases being pled. The district court accepted Salazar's pleas, found him guilty, and ordered presentence investigation (PSI) reports.

Both reports listed Salazar's year of birth as 1997. In case 20-CR-697, his criminal history score was reported as B; in case 23-CR-199, as C. As Salazar points out, his criminal history scores were different because a juvenile adjudication was scored as a prior person felony conviction in 20-CR-697 but as a decayed juvenile adjudication in 23-CR-199. The PSI reports classified the prior juvenile adjudication differently in his two cases based on the fact that he was under the age of 25 when he committed his crime of conviction in 20-CR-697 but over the age of 25 when he committed his crime of conviction in 23-CR-199.

At sentencing on May 29, 2025, Salazar did not object to either criminal history score. The court imposed 57 months in 23-CR-199 and 13 months in 20-CR-697, to run consecutive. As to jail credit, the court stated orally that Salazar would “receive credit for all the time served in both of these cases, which I understand to be 563 days,” and that the credit applied to “both of these cases together.” The journal entries, however, awarded only 469 days in 23-CR-199 (February 15, 2024, through May 29, 2025) and only 94 days in 20-CR-697 (July 13, 2021, through October 15, 2021). No credit was included in 20-CR-697 for the time Salazar spent incarcerated after February 15, 2024, while both cases remained pending.

Salazar filed a late notice of appeal in both cases on June 13, 2025. This court retained jurisdiction under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), and granted consolidation.

Legal Analysis

I. Salazar is not entitled to additional jail credit.

Salazar contends the district court erred by denying him jail credit in case 20-CR-697 on the ground that the same time was credited in case 23-CR-199. He relies on State v. Hopkins, 317 Kan. 652, 537 P.3d 845 (2023), and State v. Ervin, 320 Kan. 287, 566 P.3d 481 (2025), which construed the pre-2024 version of K.S.A. 21-6615(a) to require duplicative credit for consecutive sentences. In supplemental briefing he argues that although K.S.A. 2026 Supp. 21-6615(d) purports to bar the credit he seeks, applying that subsection to him would violate the Ex Post Facto and Due Process Clauses.

A. Preservation

Salazar concedes that he did not object below. Ordinarily, issues not raised before the district court cannot be raised on appeal. State v. Green, 315 Kan. 178, 182, 505 P.3d 377 (2022). There are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, however, including the following: (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. State v. Allen, 314 Kan. 280, 283, 497 P.3d 566 (2021); see Supreme Court Rule 6.02(a)(5) (2026 Kan. S. Ct. R. at 36).

Salazar claims his jail-credit challenge satisfies two Allen exceptions: (1) the claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to prevent the denial of fundamental rights.

Salazar's appeal presents a question of law involving interpretation of a statute that is presented on admitted facts, similarly recognized by our Supreme Court in Ervin, 320 Kan. at 306, and reaffirmed in State v. Zongker, 322 Kan. 137, 139, 586 P.3d 769 (2026). As for Salazar's second exception, he asks this court to use its discretion in considering his claim to prevent the denial of a fundamental right. Because our Supreme Court has already determined that an issue like Salazar's jail time credit may be reviewed for the first time on appeal, this court may choose to review Salazar's challenge. We elect to do so.

B. Standard of Review

Because Salazar's appeal hinges on the meaning of K.S.A. 21-6615(a), we exercise unlimited review. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024). We “ ‘follow the express language used when it is plain and unambiguous, giving common words their ordinary meanings, without adding to or subtracting from the text.’ ” Ervin, 320 Kan. at 306-07 (quoting American Warrior, Inc. v. Board of Finney County Comm'rs, 319 Kan. 78, 81, 552 P.3d 1219 [2024]).

C. A long-standing rule on jail credit was swept away by a new vision of the law.

With the passage of time, laws and interpretations of the law change. At the time Salazar committed his crimes (2020 and 2022), the long-standing interpretation of K.S.A. 21-6615(a) was that defendants receive jail credit only for time spent in custody “solely” on the charge being sentenced. Campbell v. State, 223 Kan. 528, Syl. ¶ 1, 575 P.2d 524 (1978), overruled by State v. Hopkins, 317 Kan. 652, 537 P.3d 845 (2023). That interpretation banned duplicative credit for time spent in jail.

On October 20, 2023, our Supreme Court departed from that long-standing interpretation. The court held that, under the plain language of the statute, a defendant gets credit for all time spent in custody pending disposition of the defendant's case. Hopkins, 317 Kan. at 656-57. More changes followed.

Effective May 23, 2024, the Legislature amended K.S.A. 21-6615(a) to bar duplicative credit in consecutive sentences. L. 2024, ch. 96, § 7. In Ervin, decided April 11, 2025, interpreting the pre-2024 statute, the court held a defendant gets one day of credit for each day incarcerated pending disposition regardless of whether the defendant received a credit for some or all of the time against a sentence in another case. 320 Kan. at 311-12. Zongker reaffirmed Ervin on April 23, 2026. Zongker, 322 Kan. at 139.

A further legislative response followed. Effective July 1, 2026, the Legislature added subsection (d) to K.S.A. 21-6615. L. 2026, ch. 62, § 1. Subsection (d)(1) reads: “When consecutive sentences are imposed on a defendant, days spent in custody that are attributable to more than one case shall be credited only once against the aggregated consecutive term.” K.S.A. 2026 Supp. 21-6615(d)(1). The change is retroactive to “[a]ll sentences, whether pronounced before, one or after July 1, 2026,” and applies to “any case posture, including ․ direct appeals ․ pending on or filed after July 1, 2026.” K.S.A. 2026 Supp. 21-6615(d)(2).

D. K.S.A. 2026 Supp. 21-6615(d) applies to this appeal.

When statutory language is plain, we give effect to the intent the Legislature expressed. Zongker, 322 Kan. 137, Syl. ¶ 2; Ervin, 320 Kan. at 306-07. Salazar's appeal was pending on July 1, 2026, and remains pending. Subsection (d) applies to it by its terms.

This distinguishes State v. Mitchell, 66 Kan. App. 2d 196, 579 P.3d 970 (2025), rev. granted 321 Kan. 793 (2026), which held that the 2024 amendment could not be applied retroactively because it contained no expression of retroactive intent. 66 Kan. App. 2d at 204-07. Subsection (d) declares its application to pending direct appeals in plain terms. The only remaining question is whether it may constitutionally be applied to Salazar.

E. The Ex Post Facto Clause is implicated because canceling jail credits lengthens the time in prison.

Although not a part of the offender's original sentence, the Supreme Court has held that laws canceling early release credits violated the Ex Post Facto Clause because the laws “ ‘lengthen[ed] the period that someone in petitioner's position must spend in prison.’ ” Lynce v. Mathis, 519 U.S. 433, 442, 117 S. Ct. 891, 137 L. Ed. 2d 63 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 33-34, 101 S. Ct. 960, 67 L. Ed. 2d 17 [1981]). The Kansas Supreme Court held the same in Stansbury v. Hannigan, 265 Kan. 404, 417, 960 P.2d 227 (1998): “[F]or each good time credit the petitioner failed to earn, his conditional release date and, thus, the actual term of his punishment, would be extended.” This holding applies to laws canceling jail credit as well.

An ex post facto law is any law “ ‘that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.’ ” Peugh v. United States, 569 U.S. 530, 538, 133 S. Ct. 2072, 186 L. Ed. 2d 84 (2013). The relevant question is whether the new law poses a “ ‘sufficient risk of increasing the measure of punishment attached to the covered crimes.’ ” 569 U.S. at 539; see also Garner v. Jones, 529 U.S. 244, 257, 120 S. Ct. 1362, 146 L. Ed. 2d 236 (2000) (a “significant risk of increased punishment”).

The central concern of the Ex Post Facto Clause is “the lack of fair notice ․ when the legislature increases punishment beyond what was prescribed” when the crime was committed. Weaver, 450 U.S. at 30; see U.S. Const. art. I, § 9, cl. 3, § 10, cl. 1. As Weaver explained:

“The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.” 450 U.S. at 30-31.

See Stansbury, 265 Kan. 404, Syl. ¶ 3.

Following these principles, we must decide what notice Salazar had when he committed his crimes and then decide if the 2026 amendment increased his sentence beyond what was prescribed at that time. This is not a question of whether Salazar is entitled to less punishment but a question of the consequences for his crimes in effect when he committed them.

F. We find no ex post facto violation here.

The Ex Post Facto Clause is not violated in Salazar's case because the no-duplicate-jail-credit rule was the same when Salazar committed his crimes as it is now. He cannot lose what he never had. The prohibition against ex post facto laws applies only to criminal statutes “which disadvantage the offender affected by them.” Collins v. Youngblood, 497 U.S. 37, 41, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990). The ex post facto inquiry is measured against the law in effect at the time the crime was committed. See Peugh, 569 U.S. at 533.

The purpose of the Ex Post Facto Clause is to give fair warning to individuals before crimes are committed. Lynce, 519 U.S. at 441. Salazar had fair warning that he would not be awarded duplicate jail credit before he committed his crimes because that was the long-standing interpretation of the statute by Kansas courts. Campbell, 223 Kan. 528, Syl. ¶ 1. Salazar committed his crimes in December 2020 and November 2022, both before Hopkins and Ervin.

The majority of our Supreme Court has held that the Hopkins decision changed the law on jail credit. State v. Romney, 321 Kan. 400, 419, 580 P.3d 1 (2025). In response to Hopkins, the Legislature codified the no-duplicate-jail-credit rule effective May 23, 2024, before our Supreme Court had the chance to decide Ervin. Salazar has never been awarded jail credit under Ervin, so applying K.S.A. 2026 Supp. 21-6615(d) to him does not disadvantage him relative to the law in effect when he offended.

Said another way, with the enactment of the 2026 amendment the question is not whether Salazar is entitled to the benefit of the Hopkins and Ervin holdings, but whether application of the amendment to his case violates the Ex Post Facto Clause. It does not, because he committed his crimes before Hopkins. Application of the 2026 amendment to his case would not change his punishment and would not inflict a greater punishment that the law annexed to the crimes when he committed them. See Peugh, 569 U.S. at 539.

The result is the same even if we treat Ervin as the change in the law, because Ervin was not decided until April 11, 2025, nearly a year after the 2024 amendment took effect. On that view, Salazar had no expectation of duplicate credit at any point before he offended. Either way, Salazar's offenses fall outside any period in which the operative law entitled him to duplicative credit.

G. The direct-appeal doctrine does not compel a different result.

This case is a direct appeal. A defendant whose case is pending on direct appeal generally receives the benefit of any change in the law that occurs while the direct appeal is pending. State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019); State v. Ford, 302 Kan. 455, 471, 353 P.3d 1143 (2015). The doctrine gives the defendant the law as it stands at appellate review. At appellate review here, the operative law is K.S.A. 2026 Supp. 21-6615(d), enacted while this appeal was pending. The direct-appeal doctrine delivers Salazar to the current statute, not a snapshot of Ervin at the moment it was decided.

H. Salazar has no vested right that the 2026 amendment could impair.

Salazar alternatively argues he acquired a vested right to duplicative credit under Hopkins and Ervin. He did not. A vested right is one “ ‘so fixed that it is not dependent on any future act, contingency or decision to make it more secure.’ ” State v. Dupree, 304 Kan. 43, 52, 371 P.3d 862 (2016). When Salazar committed his offenses, any right to duplicative credit was dependent on future Supreme Court decisions the court had not yet issued. A right contingent on a future judicial decision is not vested under Dupree. Under the Campbell rule, Salazar was not entitled to duplicate jail credit then. And he is not entitled to it now. See Campbell, 223 Kan. 528, Syl. ¶ 1.

II. Salazar's constitutional challenge to his criminal history score is unpreserved, and we decline to reach it for the first time on appeal.

Next Salazar argues the district court violated his constitutional right to a jury trial by increasing his prison sentence based on its own finding that he was under the age of 25 at the time of the offense in case 20-CR-697 and using that finding to score a prior juvenile adjudication as a person felony rather than as a decayed adjudication.

A. The challenge was not raised below.

Salazar acknowledges he never objected to either criminal history score and never raised an Apprendi claim at sentencing. He invokes K.S.A. 21-6820(e)(3) and the Allen preservation exceptions.

K.S.A. 21-6820(e) authorizes appellate review of whether the sentencing court correctly included, excluded, ranked, or classified a prior conviction or juvenile adjudication for criminal-history purposes. Salazar does not contend that the district court miscalculated his criminal history under the statutes that govern scoring. He concedes that the PSI report's treatment of the juvenile adjudication tracks with the statutory framework given his age on each offense date. Instead, Salazar tries to repackage a criminal history scoring argument as one that is constitutional.

Moreover, our Supreme Court has squarely held that “the use of criminal history scores is not unconstitutional under Apprendi,” State v. Baker, 287 Kan. 345, 371, 197 P.3d 421 (2008), and that including prior convictions and adjudications in the criminal-history calculation does not run afoul of Apprendi, State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002). The age-related component of that scoring tracks with the prior conviction exception.

B. The applicable preservation rule and State v. Jelinek’s reasoning.

Issues not raised below are generally not addressed on appeal. Green, 315 Kan. at 182; see also State v. Mendez, 319 Kan. 718, 730, 559 P.3d 792 (2024) (rule applies even when those theories allege constitutional violations). Although Allen exceptions exist, appellate review of an unpreserved claim is prudential; even if an exception applies, the appellate court is not obligated to review the claim. State v. Rhoiney, 314 Kan. 497, 500, 501 P.3d 368 (2021). Under Supreme Court Rule 6.02(a)(5), an appellant must explain why a new theory should be reached for the first time on appeal. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019).

A panel of this court recently declined a virtually identical, unpreserved Apprendi age-finding challenge in State v. Jelinek, 66 Kan. App. 2d 158, 163-64, 577 P.3d 662 (2025), petition for rev. filed October 8, 2025. Jelinek emphasized that the defendant offered no explanation for his failure to object, that adequate collateral avenues remained (K.S.A. 60-1507; plea withdrawal under K.S.A. 22-3210[d][2]), and that Apprendi age- finding claims are far from novel in Kansas. 66 Kan. App. 2d at 163-164; see State v. Nunez, 319 Kan. 351, 356, 554 P.3d 656 (2024); State v. Sanders, 65 Kan. App. 2d 236, 253, 563 P.3d 234 (2025); State v. Conkling, 63 Kan. App. 2d 841, 844, 540 P.3d 414 (2023). The same reasoning applies here. Salazar offers no explanation for his silence at sentencing; he waived a jury trial in exchange for a favorable global plea; and he leaves the district court and the State with no record on which to address age, stipulation, or harmless-error issues.

To reach the claim on this record would reward silence at sentencing and deny the district court and the State any opportunity to address stipulation, harmlessness, or remedy. These are the very concerns Jelinek and Mendez identify. We therefore decline to reach the claim.

Salazar was convicted of crimes committed in December 2020 and November 2022, both before Hopkins. Under the Campbell rule, he was not entitled to duplicate jail credit then; he is not entitled to it now. The enactment of K.S.A. 2026 Supp. 21-6615(d), retroactively denying duplicate jail credit, has no ex post facto effect on his case. Salazar lost nothing with that law's enactment. The district court's jail-credit determination is affirmed. In all other respects, the sentences are affirmed.

Affirmed.

Per Curiam: