State of Kansas, Appellee, v. Blake Wayne Feikert, Appellant. (2026)

MEMORANDUM OPINION

This appeal arises from Blake Wayne Feikert's decision to enter no-contest pleas to kidnapping and aggravated assault after mediation substantially reduced the charges against him. Before sentencing, Feikert sought to withdraw those pleas, asserting that he misunderstood the agreement, had been pressured to accept it, and remained innocent. The district court found that Feikert had entered the pleas fairly and with an understanding of their consequences and denied his motion. Feikert now challenges that ruling and the district court's failure to award him jail-time credit.

We find no abuse of discretion in the denial of his motion to withdraw his pleas, but we remand for the district court to determine the amount of jail credit, if any, to which he is entitled.

Factual and Procedural History

On January 23, 2023, the State charged Feikert with six crimes: (1) rape of a child under the age of 14; (2) aggravated indecent liberties with a child under the age of 14; (3) rape; (4) aggravated indecent liberties with a child at least 14 but under 16 years of age; (5) criminal threat; and (6) misdemeanor battery. After a preliminary hearing the State amended the first count—the rape charge—to a charge of aggravated indecent liberties with a child under the age of 14. The State also added four counts of aggravated assault.

Subsequently, the State, Feikert, and Feikert's attorney engaged in a mediation at the Thomas County Justice Center in Colby. The mediation session lasted approximately four-and-a-half hours. Upon the conclusion of the session, the parties informed the district court judge they were ready for him to take Feikert's plea. The State also filed a second amended complaint, reflecting the counts to which Feikert intended to plea: (1) kidnapping and (2) aggravated assault. At the plea hearing that same day, the State explained the terms of the plea, referring to the new, second amended complaint:

“My understanding is on the Second Amended Complaint Count l of Kidnapping, Mr. Feikert is going to enter a plea of No Contest. He is going to enter a plea of No Contest to the Second Amended Complaint Count 2 Aggravated Assault. We believe Mr. Feikert is an ‘A’ Criminal History. The State at Sentencing is going to ask for the Aggravated Range on Count 1, which is 247 months, that being ran consecutive to Count 2, Aggravated Range of 13 months for 260 months. My understanding is Mr. Feikert is going to ask the Court to impose the mitigated arranged in each box for 221 months and 11 months. In regard to other sentencing issues, parties have agreed not to impose a fine. Defendant will be responsible for Court costs, obviously with the length of incarceration, the attorney's fees will be determined by the Court per the—Mr. Feikert's financial status. I would ask that Mr. Feikert reimburse the State for any medical expenses and Thomas County Case 2023-CR-26, we'll dismiss that sentence; and this plea grows out of mediation that started around noon with Judge Marquez out of Garden City.”

After the State's explanation, the district court judge asked Feikert if he shared that understanding of the terms of the plea, and Feikert responded that he did. Feikert's attorney stated that he had also reviewed the second amended complaint with Feikert before the hearing. Feikert then stated that he wished to enter a no contest plea to each of the two counts. The court asked the State how it wanted to “handle the probable cause,” and the State responded with a brief proffer that was essentially a recitation of the language in the second amended complaint. The State identified the victim of both charges as J.S. The court asked the defense if there was any dispute about the proffer, and Feikert's attorney stated that there was none.

Before accepting his pleas, the district court engaged in a colloquy with Feikert, asking him if he understood the rights he was waiving by entering the pleas. The court asked Feikert whether “anyone promised [him] probation other than what was set out today by [the State's attorney], or is in the sentencing guidelines,” and Feikert said, “No.” After the district court accepted Feikert's no contest pleas, it set the matter for sentencing on January 12, 2024.

On the same day as the mediation and the hearing, Feikert signed a tender of plea of nolo contendere. The document included a section that explained the presumptive sentencing ranges for the counts to which Feikert plead.

Before sentencing, Feikert's counsel submitted a motion for durational departure. The motion recapped the plea agreement and requested the district court grant Feikert the mitigated numbers in the presumptive sentencing boxes for the two counts. After filing the motion, Feikert's attorney went to the jail to visit Feikert, who informed him at that time that he wished to withdraw his plea.

At the sentencing, Feikert's counsel informed the district court of Feikert's desire to withdraw his plea. The court asked Feikert if giving him a couple more weeks for his counsel to talk to him and explain the caselaw concerning pleas would be of value to him. Feikert responded, “Your Honor, he is a good lawyer ․, I'm just not guilty of this and I'm not willing to take the charges of this and deal with this for the rest of my life.” The court then granted Feikert's counsel's request to withdraw as Feikert's representation. At the end of the hearing, Feikert asked the court if he “could be released on probation or parole in the meantime” while new counsel was appointed and a new hearing was scheduled, but the court denied Feikert's request.

Feikert's new counsel filed Feikert's motion to withdraw his no contest plea. Feikert argued the following reasons constituted good cause to withdraw his pleas:

(1) The plea was not knowingly entered and was involuntary, the court failed to ask him personally about the facts of the alleged crime charged, and the court failed to establish a sufficient factual basis for the plea;

(2) he did not understand the plea agreement and believed the court would grant him probation based on the mediator judge's advice that a judge can depart sua sponte;

(3) he was unduly pressured by counsel to enter the plea;

(4) there was insufficient evidence to support the convictions; and

(5) he was innocent.

The State responded to Feikert's motion and argued that the district court should deny Feikert's request to withdraw his pleas. Two days later, the district court held a hearing on the motion to withdraw. At the hearing, Feikert testified that his former attorney and the mediator judge “pressured [him] for hours and hours on end trying to get [him] to take this deal.” Feikert stated, “I didn't want to take it, and I told them I'm not guilty in this and they just wouldn't budge on trying to make any progress in taking it to trial.” Feikert said that since his arrest, he was consistent that the charges against him were false. Feikert added that the meaning of a no contest plea was never explained to him and that he did not really know what it meant. Feikert explained that he had been in custody for about 17 months before taking his plea and that he was overwhelmed with the process, was neglected and mistreated in jail, and was eager to make progress in his case.

Feikert testified about his understanding that he might receive probation. He stated that nobody told him that he might get probation because of the plea. He stated that he believed the court would see that he did not commit the crimes based on a lack of evidence. He thought that “maybe the Judge would see through my innocence on this and that I could get out and prove—further prove my innocence.” Feikert professed his innocence at least three times during his questioning.

Feikert also added that someone had told him about a separate child custody decision that referenced him and the alleged victim in this case. In that opinion (which is unpublished), he believed there were statements contrary to the claims here that would prove his innocence in this case.

Feikert's prior attorney, Richard Boeckman, also testified at the hearing. Boeckman testified that he did not believe he unduly pressured Feikert into taking a plea. Boeckman explained that on the day of the mediation, the parties met from about noon until 4:30 p.m., and then when they came to an agreement, they took a break to wait for the judge to travel to them from a different city and take the plea. Boeckman testified that while they waited for the judge, he went over the tender of plea document with Feikert. Boeckman said that he fully explained the State's allegations to Feikert. He stated that at the mediation, there was a “fairly relaxed atmosphere” and that both he and the mediator judge explained to Feikert what a no contest plea was. Boeckman stated, “In dealing with Mr. Feikert, I know that one must be careful in explaining things to him and I have no doubt that I was very careful in explaining that.”

Boeckman testified that he filed a motion for durational departure because the plea agreement provided that he could. He said, however, that he did not file a motion for dispositional departure “because the agreement did not provide for that.” Boeckman said that he could not find a document stating that he was prevented from filing a dispositional departure, but he believed that was what the agreement was. We pause to note, that at the beginning of the evidentiary hearing, Feikert's new counsel noted that he had discussions with the prosecutor, who agreed that the plea agreement did not prevent counsel from arguing for a dispositional departure and if that was Feikert's concern, the State would not object to that motion being made and argued in lieu of a plea withdrawal. The State would, however, argue against granting a dispositional departure—as it would have done at the time.

Boeckman testified that there may not have been a written plea agreement, but that he believed that Judge Marquez had written a summary of the plea which may not have been filed with the tender of plea. He could not say whether Feikert had reviewed a written plea agreement, but he knew definitively that he had reviewed the tender of plea document with Feikert.

At the conclusion of the hearing, the district court judge took Feikert's motion to withdraw his plea under advisement. About two weeks later, the judge filed an order denying Feikert's motion to withdraw his plea. In its order, the district court found that Feikert was represented by competent counsel at the time of his plea, that Feikert's plea was fairly and understandingly made, and that Feikert failed to establish good cause for the court to grant his request to withdraw his plea.

The matter proceeded to sentencing on September 4, 2024. At sentencing, Feikert's attorney stated that “because the Court is enforcing the previous plea agreement, that binds us to seek nothing more beyond the mitigated sentence. So, that's all we will be seeking today.” The district court sentenced Feikert to 247 months in prison for kidnapping and 12 months in prison for aggravated assault. The court ordered that the counts run consecutive to each other and consecutive to two other criminal cases for which Feikert had already been sentenced.

At sentencing, the parties disagreed about whether Feikert should receive jail credit for the time spent incarcerated while this matter was pending. The State argued that the Legislature's amendment to K.S.A. 21-6615, which was effective on May 23, 2024, controlled and required that no jail credit be awarded in Feikert's case. Feikert argued that the amendment was not retroactive and that he was entitled to jail credit. In the journal entry of sentencing, the “Incarceration Credit” section provides no information about time Feikert spent in custody and awards no jail credit.

Feikert timely appealed.

Analysis

I. The District Court Did Not Abuse Its Discretion in Denying Feikert’s Motion to Withdraw His Plea

Our standard of review is abuse of discretion and Feikert bears the burden of proof.

Appellate courts review a district court's decision to deny a presentence motion to withdraw a guilty or no contest plea for an abuse of discretion, and the defendant bears the burden to prove the court abused its discretion in denying the motion. State v. Bilbrey, 317 Kan. 57, 63, 523 P.3d 1078 (2023). A judicial action constitutes an abuse of discretion if: (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. 317 Kan. at 63.

A plea may be withdrawn upon the court's discretion for good cause shown.

A guilty or no contest plea may be withdrawn at any time before the sentence is adjudged “for good cause shown and within the discretion of the court.” K.S.A. 22-3210(d)(1). In conducting this analysis, courts consider the following nonexclusive factors from State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006): (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. These factors, which establish viable benchmarks for the district court when exercising its discretion, should not be applied mechanically to the exclusion of other factors that might exist in a particular case. Bilbrey, 317 Kan. at 62-63. Our Supreme Court has also explained that the court can consider whether the defendant is claiming innocence as a factor. State v. Garcia, 295 Kan. 53, 63, 283 P.3d 165 (2012) (A court can consider whether the defendant is claiming innocence but cannot require a claim of innocence as a prerequisite for withdrawing a plea.).

Feikert does not contend that the district court failed to comply with statutory or constitutional requirements for accepting his plea. See K.S.A. 22-3210. Rather, Feikert asserts that his plea was not understandingly made because there was no written plea agreement and there was ambiguity as to whether Feikert could ask for a dispositional departure to probation—essentially the third Edgar factor. We will address each claim in turn.

The Lack of a Written Plea Agreement

While no written plea agreement is in the record, Kansas law does not require the plea agreement to be in writing. The statute requires that the plea be entered in open court, that the court informs the defendant of the consequences of the plea, that the court addresses the defendant personally and determines that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea, and that the court is satisfied that there is a factual basis for the plea. K.S.A. 22-3210(a)(1)-(4). Here, the statutory requirements were met. The transcript shows that the district court asked whether Feikert understood the rights he would give up by entering his plea and the potential sentencing ramifications for each charge. After the State's proffer, Feikert and his attorney stated there was no objection. After the State provided its understanding of the plea agreement, both Feikert and Feikert's attorney stated that they had the same understanding as the State. Under these facts, Feikert's claim that the lack of a plea agreement requires the court to grant his motion to withdraw his plea fails.

Failure to File a Motion for Dispositional Departure

Feikert relies on the fact that his attorney failed to file a motion for a dispositional departure to argue that he misunderstood the consequences of his plea agreement. He also points out that his attorney believed that the plea agreement did not allow for a motion for dispositional departure.

But this claim is inconsistent with Feikert's testimony at the plea withdrawal hearing. At the hearing, Feikert testified that nobody told him that he might get probation because of the plea. Rather, he stated that he believed the court would see that he did not commit the crimes based on a lack of evidence and would grant him probation on its own. Since no testimony suggested that Feikert expected to request and receive a dispositional departure sentence, any confusion that Feikert or his attorney may have had about Feikert's ability to ask for a dispositional departure does not appear to constitute good cause to allow Feikert to withdraw his plea. This claim also fails.

Consideration of Feikert's Assertion of Innocence

Feikert argues the district court made an error of law by: (1) considering an assertion of innocence at the time of the plea to be a prerequisite to Feikert demonstrating good cause to withdraw his plea; and/or (2) considering Feikert's entry of a no contest plea to be a bar to his claim of innocence.

In its written order denying Feikert's motion to withdraw his plea, the district court stated the following about Feikert's claim of innocence:

“The Defendant also asserted that he has maintained his innocence throughout this whole case. A claim of innocence may be considered by the Court to determine good cause. See, State v. Garcia, 295 Kan. 53, 62, 283 P.3d 165, 172 (2012). Mr. Boeckman testified that the Defendant during mediation asserted his innocence. Mr. Boeckman explained to the Defendant the difference between a guilty plea and no contest plea. Mr. Boeckman explained a no contest plea was not an admission to guilt. At no time during the plea hearing did the Defendant assert his innocence. Rather, he knowingly entered a ‘no contest’ plea. Therefore, the Court finds that the Defendant's continued assertion of innocence does to [sic] represent good cause.”

As our Supreme Court has explained, “ ‘[A] trial judge may consider whether the defendant is claiming innocence—such a claim might well support good cause. What the district court can't do is require a claim of innocence to withdraw a plea.’ ” Garcia, 295 Kan. at 63.

Feikert argues the district court's statements reveal that it believed Feikert was required to affirmatively protest his innocence at the time he entered his plea in order to claim his innocence when he wished to withdraw his plea. But a reasonable interpretation of the district court's statement is that Feikert's claim of innocence was out in the open during the mediation and that Feikert nonetheless knowingly entered the no contest plea.

The district court did not require Feikert to proclaim his innocence when he entered his plea as a prerequisite to withdraw his plea.

The record does not support a finding that the district court dismissed Feikert's motion to withdraw his plea because Feikert failed to claim his innocence. Rather, the court simply found Feikert's claim was an uncompelling justification for withdrawing his plea. The district court acknowledged Feikert's assertion of his innocence, but it dismissed that assertion as failing to represent good cause to withdraw his plea. This is distinguishable from Garcia, in which a district court's statements at the plea withdrawal hearing lead the reviewing court to the conclusion that it “may have given the absence of an allegation of innocence more weight than it deserved.” 295 Kan. at 63. As a note, the district court here even went so far as to cite the Garcia case in its ruling, which is the case that explains that the court cannot treat an assertion of innocence as a prerequisite to a showing of good cause.

The district court did not consider Feikert's entry of a no contest plea to be a bar to his claim of innocence.

In a similar vein, Feikert argues that the district court erroneously believed that Feikert's entry of a no contest plea was a bar to his claim of innocence. In other words, when the district court said that Feikert “knowingly entered a ‘no contest’ plea,” it meant that Feikert dropped his assertion of innocence. However, the district court's statements do not support this interpretation. Rather, as explained above, the district court's statements show its reasoning that Feikert entered his no contest plea despite his claims of innocence, meaning that Feikert must have had other reasons to enter the plea. It is not unreasonable for the district court to conclude that Feikert was maintaining his assertion of innocence but chose to enter a plea agreement despite that assertion.

The district court did not abuse its discretion by not considering evidence Feikert failed to provide.

At the plea hearing, Feikert testified that he learned about a court decision that could help him prove his innocence. Feikert stated that it was a child custody case in which “supposedly the victim saying the total opposite about I was a good father and good for the kids and just some other statements that prove[ ] my innocence.” Feikert did not provide any other details or further identify the decision for the district court. The district court did not mention this claim in its written decision denying Feikert's motion to withdraw his plea.

On appeal, Feikert asserts that the decision was In re Marriage of Boles, No. 122,330, 2021 WL 745402 (Kan. App. 2021) (unpublished opinion). Feikert's argument is based on testimony described in that case, which was heard by District Court Judge Kevin Berens, who was the same judge who denied Feikert's motion to withdraw his plea.

The parties do not dispute that In re Marriage of Boles concerned a divorce action and custody dispute between two parties with no familial connection to Feikert, that the mother in that custody dispute was also the mother of the victims in this case, and that the mother was the same person who provided a victim impact statement at Feikert's sentencing in this case. Feikert argues that the district court erred because it “knew there was sworn testimony that could be exculpatory” and that “the uncontested evidence was Mr. Feikert had learned about this evidence after he entered his plea.”

There are several issues with Feikert's claim. First, Feikert does not explain why the district court judge should be faulted for not recognizing the case Feikert vaguely referenced at the plea withdrawal hearing and for not remembering the specifics of testimony that the court heard in a separate case years earlier. Second, though Feikert takes issue with the fact that the district court did not address this case in its denial of his motion to withdraw his plea, Feikert never identified the case or explained how testimony in the case would help to prove his innocence. “[A] defendant seeking to withdraw his or her plea prior to sentencing has the burden to show the existence of good cause for permitting the plea withdrawal.” State v. Schow, 287 Kan. 529, 546, 197 P.3d 825 (2008). In other words, Feikert bore responsibility for providing the court with the information he believed would help his cause. Feikert failed to carry that burden. Additionally, even assuming the district court recalled and addressed the testimony that Feikert claims is exculpatory, it is unclear how that testimony would have constituted good cause for Feikert to withdraw his plea.

Conclusion

In sum, contrary to Feikert's challenge on appeal, he has failed to establish that the district court abused its discretion when it found that Feikert entered the plea fairly and with understanding. The plea agreement was announced before Feikert entered his plea, it was outlined in his motion requesting a departure sentence, and his attorney testified that he went over the tender of plea document with Feikert. Attorney Boeckman stated that he fully and carefully explained the State's allegations to Feikert. Before entering his pleas, Feikert confirmed that he understood the terms of the plea agreement, and he also confirmed that no one had promised him probation other than what was set out by the prosecutor or was in the sentencing guidelines.

The district court's conclusion is grounded in the applicable law and is supported by substantial competent evidence from which a reasonable judge could conclude that Feikert entered the plea knowingly, fairly, and with an understanding of its consequences. See, e.g., State v. Rayton, 321 Kan. 677, 693, 583 P.3d 898 (2026) (concluding the same). Thus, Feikert has failed to meet his burden to show that the district court abused its discretion in denying his motion to withdraw his plea.

II. The District Court Erred in Failing to Award Feikert Jail Credit in This Case

On appeal, Feikert argues the district court erred by failing to award him jail credit for all the days he spent incarcerated pending the disposition of his case.

We elect to consider Feikert's unpreserved claim.

At sentencing, Feikert argued that he should receive jail credit in this case. (The district court's journal entry contains no information regarding jail credit.) It does not provide a calculation of time Feikert spent in custody while his case was pending, nor does it state anything about whether credit for time spent in custody was awarded in another case. Yet Feikert did not raise this issue with the district court. See Trotter v. State, 288 Kan. 112, 124, 200 P.3d 1236 (2009) (“[I]ssues not raised before a district court, including constitutional grounds for reversal, cannot be raised for the first time on appeal.”).

Feikert argues that this court should extend a prudential exception to the preservation requirement and review this issue for the first time on appeal, because consideration of the claim is necessary to prevent the denial of Feikert's fundamental right to liberty—he claims that his challenge implicates 17 months of his imprisonment. See Trotter, 288 Kan. at 124-25 (recognizing limited exceptions to the preservation rule).

Moreover, Feikert's claim primarily involves statutory interpretation. The right to jail credit in Kansas is statutory. Statutory interpretation presents a question of law over which this court's review is unlimited. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024). We elect to consider Feikert's unpreserved claim.

The sentencing provisions in effect at the time of the crime guide our decision.

Kansas appellate courts have found that “ ‘the fundamental rule for sentencing is that the person convicted of a crime is sentenced in accordance with the sentencing provisions in effect at the time the crime was committed.’ ” State v. McLinn, 307 Kan. 307, 337, 409 P.3d 1 (2018) (quoting State v. Overton, 279 Kan. 547, 561, 112 P.3d 244 [2005]); see also State v. Juiliano, 315 Kan. 76, 80, 504 P.3d 399 (2022) (“The court sentences a person convicted of a crime in accordance with the sentencing provisions in effect when the person committed the crime.”). And panels of this court have relied on the date of the offense for determining the applicable version of the jail credit statute. See, e.g., State v. Mitchell, 66 Kan. App. 2d 196, 206-08, 579 P.3d 970 (2025) (holding that the defendant's jail credit was governed by the statute in effect at the time he committed the crimes), rev. granted 321 Kan. 793 (2026); State v. Watie, 66 Kan. App. 2d 166, 168, 577 P.3d 674 (2025) (“Watie committed the offense giving rise to his criminal-threat conviction in June 2022. At that time, jail credit was controlled by K.S.A. 2022 Supp. 21-6615[a].”).

Feikert committed the offense giving rise to Count 1 on or about December 1, 2017, continuing to on or about April 1, 2019. He committed the offense giving rise to Count 2 on or about December 1, 2017, continuing to on or about July 31, 2018. When Feikert committed his crimes, K.S.A. 21-6615(a) provided:

“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.” (Emphasis added.)

While Feikert's case was pending disposition in the district court, the Kansas Supreme Court interpreted K.S.A. 21-6615(a) in State v. Hopkins, 317 Kan. 652, 657, 537 P.3d 845 (2023). While the Hopkins court technically interpreted K.S.A. 2022 Supp. 21-6615, that version of the statute is identical to K.S.A. 21-6615(a) (Self 2023).

In Hopkins, the Kansas Supreme Court found that defendants are entitled to jail credit against their sentence for all the time spent incarcerated while their case is pending disposition. 317 Kan. at 657. In State v. Ervin, 320 Kan. 287, 311-12, 566 P.3d 481 (2025), the Kansas Supreme Court interpreted the same version of K.S.A. 21-6615(a) to mean that a district court must award jail credit for all the time the defendant spent incarcerated pending the disposition of their case, regardless of whether they also received credit for some or all of that time against a sentence in another case.

Effective May 23, 2024, the Kansas Legislature amended K.S.A. 21-6615 to exclude “time awarded as credit in another case when consecutive sentences are imposed on a defendant” from what should be considered “time spent incarcerated pending disposition of the defendant's case.” K.S.A. 2024 Supp. 21-6615(a)(2); L. 2024, ch. 96, § 7. The State argues that Ervin should not be applied in this case because Feikert was sentenced after the statutory amendments to K.S.A. 21-6615 went into effect.

The State acknowledges that the general rule is that the date of the crime determines when sentencing statutes apply, but it contends this rule has exceptions when the Legislature intends the statute in effect at sentencing to apply. The State cites State v. King, 14 Kan. App. 2d 478, 793 P.2d 1267 (1990) (which involved a previous jail-credit provision for probation revocations), and State v. Patton, 315 Kan. 1, 15, 503 P.3d 1022 (2022) (which involved a DUI sentencing statute). However, the same arguments raised in the State's brief have been addressed and found unpersuasive by this court. See Mitchell, 66 Kan. App. 2d at 207 (“In short, K.S.A. 2024 Supp. 21-6615[a] includes no language indicating that the legislature intended to apply it retroactively to pending cases awaiting sentencing. In the absence of any such indication, the 2024 amendments apply only to sentences for crimes committed on or after May 23, 2024.”).

We find that the version of the jail credit statute applicable to this case is K.S.A. 21-6615 (Self 2023) and that the 2024 amendment does not apply retroactively to Feikert's case, which was pending sentencing when the amendment became effective on May 23, 2024. Accordingly, under K.S.A. 21-6615(a) and the court's interpretation of the statute in Hopkins and Ervin, the district court needed to award Feikert jail credit “for all days incarcerated on a case, regardless of whether the defendant received a credit for some or all that time against a sentence in another case.” Ervin, 320 Kan. 287, Syl. ¶ 12, 311-12. Ervin was issued after Feikert's sentencing and while Feikert's appeal was pending. Our Supreme Court has established a “longstanding rule that in a direct appeal, a defendant will receive 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); see Watie, 66 Kan. App. 2d at 167-68 (applying Ervin in a case that was pending appeal when Ervin was issued).

The State alternatively argues that Ervin was wrongly decided. However, the Kansas Court of Appeals is duty bound to follow Kansas Supreme Court precedent unless there is some indication that the Supreme Court is departing from its previous position. Patton, 315 Kan. at 16. Because there is no such indication, we must apply the binding precedent in Ervin.

In its brief, the State says that “the district court awarded credit from January 24, 2023, to April 26, 2023, to a prior case, and the record reflects that Feikert was serving his prison sentences in the prior cases from April 26, 2023, until he was sentenced in this case.” At sentencing, the State argued that if Feikert received sentences in this case that were consecutive to “the matters he is in DOC for, then he wouldn't get any jail credit.” At one point during sentencing, the district court asked whether the defense believed it made a difference that Feikert was “serving a sentence ․ as opposed to simply being held on a warrant” while his case was pending.

It is not entirely clear to us from the record how many days of jail credit Feikert is entitled to. Accordingly, we remand this case to the district court to make findings as to whether Feikert was in State custody pending disposition of this case and, if he was, how many days of jail credit he is entitled to under Ervin.

We affirm the district court's denial of Feikert's motion to withdraw his plea, but we vacate the sentencing order awarding no jail credit and remand for imposition of an allowance of jail credit consistent with Hopkins and Ervin.

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

Per Curiam: