Request By:
Charles D. Weaver, Jr.
Executive Director
Department of Justice
Parole Board
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert W. Hensley, Assistant Attorney General
This is in response to your letter to this office concerning an interpretation of KRS 532.120, more particularly KRS 532.120 (3).
In your letter you state: "Daily we are faced with the application of this particular statute with regard to the credit a person receives for the time he spends in jail prior to being received by the Bureau of Corrections."
In your letter you also state:
The courts throughout this state are not uniform in their application of this law. In some instances, more particularly Louisville-Jefferson County, the circuit courts send separate commitment orders when a person is convicted of a multiple count crime. In these separate commitment orders, the defendant is given credit for each day he spends in the Jefferson County Jail prior to being convicted and sent to the Bureau of Corrections. The problem arises in that when a person receives convictions on multiple counts, the jail time is doubled or tripled over what he actually spent in jail, and we have had in certain instances a person eligible for parole three to four years prior to his commission of the crime, which is ludicrous. The question the Board has requested I pose to you is how should KRS 532.120 (3) be interpreted when you have multiple count crimes and how should the Board treat incorrect interpretations of this section.
As we understand your first question, it involves two situations: first where a person remains in jail awaiting trial on (1) a felony or (2) felonies, and for purposes of this discussion, let's say two Class D felonies. Also, for purposes of this discussion, let's say that the person stays in jail thirty (30) days awaiting trial.
If in situation (1) the person is convicted at the conclusion of the trial and, let's say, receives a five (5) year sentence, he or she would be credited, under KRS 532.120(3), with the time spent in jail prior to the commencement of the sentence. Thus if the person had been in jail for 30 days prior to the sentence, he or she, upon arriving at the institution under the jurisdiction of the Bureau of Corrections, would only have to serve four (4) years and 335 days, that is the fifth year of 365 days would be reduced by the pre-sentence incarceration under KRS 532.120 (3) by thirty (30) days.
If in situation (2) the person is convicted at the conclusion of the trial and, let's say receives a five year sentence on each of the two felonies the trial judge, as you know, under KRS 532.110 and RCr 11.04, can order the two sentences to run concurrently or consecutively. If the trial judge orders the sentences to run concurrently there would seem to be little problem in that even if the judge should determine that the thirty (30) days should be credited to each sentence, logically, it would seem, the Court would also consider the thirty (30) days concurrent with each other, so to speak, so that in reality all the convicted person would have would be thirty days credit on the sentence and practically speaking that would be on a five year sentence, i.e. two five year sentences running concurrently. Of course it is possible for the judge to consider thirty (30) days twice, consecutively, so as to construe the five (5) years sentence (i.e. two five years sentences running concurrently) reduced by sixty (60) days. However from what we are about to say later neither of these computations would be legally correct.
However the trial judge in situation (2) could also order the two five (5) year sentences to run consecutively. Therein, in all liklihood, so far as the Parole Board is concerned, lies the problem. Thus the question is whether the prisoner is credited with only thirty (30) days toward the ten year sentence-which, in effect is what the convict faces under two five year sentences running consecutively -- or thirty days times two (30 days X 2) for a total of sixty (60) days towards the ten year sentence?
In order to answer your question let's first consider KRS 532.120 (3). It provides:
Time spent in sustody prior to the commencement of a sentence as a result of the charge that culminated in the sentence shall be credited by the court imposing sentence toward service of the maximum term of imprisonment. If the sentence is to an indeterminate term of imprisonment, the time spent in custody prior to the commencement of such sentence shall be considered for all purposes as time served in prison.
We would note that the predecessor to this statute was KRS 431.155. It provided:
(1) Any person convicted and sentenced to a state penal institution shall receive a credit on his sentence for the amount of time the person has spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence. The credit herein provided shall be calculated from the date the sentence commences and shall not include any time that is credited against the term of any previously imposed sentence to which the person is subject. Where the charge or charges culminate in more than one sentence, the credit shall be applied as follows:
(a) If the sentences run concurrently, the credit shall be applied against each such sentence;
(b) If the sentences run consecutively, the credit shall be applied against the aggregate term of the sentences.
(2) In any case where a person has been in custody due to a charge that culminated in a dismissal or an acquittal, the amount of time that would have been credited against a sentence for such charge, had one been imposed, shall be credited against any sentence that is based on a charge for which a warrant or commitment was lodged during the pendency of such custody.
(3) The Department of Corrections is charged with the responsibility of determining the credit to be applied under this section.
(4) The provisions of this section shall apply only to sentences imposed after June 13, 1968.
Concerning KRS 431.155 being the predecessor to KRS 532.120, in the COMMENTARY (1974) to KRS 532.120 (which may be found in the CRIMINAL LAW OF KENTUCKY 795 (1978) it is stated:
Relationship to Pre-existing Law: Pre-existing law on the subject matter of this section was quite limited. The only provisions for which there were comparable pre-existing principles are subsections (3) and (4). KRS 431.150 [*] and KRS 431.155 provided credit for time served in custody prior to imposition of sentence. In every significant way, these two statutes are adopted into this revision. All of the other subsections of the provision would have to be considered additions to the law. At the same time, it should be stated that not a single one of them makes any substantial change in prior practice.
Before continuing, we would note that KRS 431.150 and KRS 431.155 were both repealed, effective January 1, 1975 being the effective date of the new KENTUCKY PENAL CODE.
Now to answer your precise question as we construe it concerning a person in jail awaiting trial for thirty (30) days and upon the conclusion of trial convicted of two or more felonies, and the court orders the sentences to run concurrently or consecutively. In the interest of continuity we are including a copy of OAG 68-227. In particular we direct your attention to paragraph VIII. You will see that this opinion is based upon KRS 431.155, and, as we have already said, this is the predecessor statute to KRS 532.120 which according to the COMMENTARY (1974) makes no substantial change in prior practice. Thus, based upon OAG 68-227 and the COMMENTARY (1974) to KRS 532.120, it is our opinion that no matter how many felony convictions one is convicted of and no matter if the sentences are ordered to run concurrently or consecutively, the person gets but one days' credit for each day spent in jail awaiting trial.
Before moving on to your second question we could note that by operation of KRS 532.120 (3) what is in essence a security measure -- jail awaiting trial -- is recognized, retroactively, as a penal condition in that the jail time is considered part of the penalty adjudged so as to reduce the final sentence to be served.
Now we come to your second question: "[H]ow should the Board treat incorrect interpretations of the section?" We gather from the tenor of your second question that the Parole Board is contemplating the problem occasioned by an order of a circuit court which erroneously credits a defendant with too much jail time towards the final sentence imposed. And here we must emphasize that we are talking about an erroneous credit of jail time by the sentencing court since our office, in OAG 75-399 (copy included), opined that if the jail credit makes the person eligible for parole consideration upon arrival at the institution the Parole Board, nevertheless, can administratively require a certain minimum period of time to be served at the institution before reviewing the person's case for parole eligibility. But that opinion did not deal with the question of how should the Board treat an incorrect interpretation of the statute, i.e. an improper or erroneous credit of jail time.
Due to what we are about to say, and even though we are aware of the problems it has caused in terms of computations of parole eligibility dates, we are of the opinion that there is very little, if anything, the Parole Board can do about such an erroneous credit of jail law.
First off, we would note that in
Polsgrove v. Kentucky Bureau of Corrections, Ky. App. 549 S.W.2d 834 (1977) * the Court of Appeals specifically recognized that the statute which you quote, KRS 532.120, concerns the circuit court only. The Court of Appeals stated at pp. 836-837:
[T]he Court feels it would be remiss in not setting out proper guidelines in the event an habeas corpus action is brought in the Franklin Circuit Court. First, it is the opinion of this Court that the Kentucky Bureau of Corrections is the proper party herein. Ky. Rev. Stat. Chapter 197 is directed to the Bureau of Corrections and not to the circuit court, while Ky. Rev. Stat. Chapter 532 is directed toward the circuit court. In the instant case, the actual jail time of 317 days was credited by the court toward the service of the maximum term of imprisonment as required by Ky. Rev. Stat. 532.120 (3). The following sentence relating to consideration of time spent in custody can only be applied by the Bureau of Corrections pursuant to Ky. Rev. Stat. 197.045 (1).
Thus insofar as KRS 532.120 (3) it clearly is directed toward the circuit court and not to the Bureau of Corrections nor, for that matter in our opinion, the Parole Board.
Secondly, another problem we would call to your attention is that nearly three years ago there was a civil suit filed in the Franklin Circuit Court, Bernie Gibson, Plaintiff/Petitioner v. Kentucky State Parole Board, Defendant/Respondent, File No. 86720, in which the plaintiff sued the Parole Board for credit for time spent in jail awaiting transfer to the Kentucky State Penitentiary for recommitment as a parole violator. In the process of preparing an answer in that case the undersigned attorney conferred several times with Honorable Edwin A. Logan, Attorney at Law, Frankfort, Kentucky, who, at that time, represented the Kentucky Bureau of Corrections. We determined that the plaintiff's suit was subject to dismissal since, in our opinion, the Kentucky Parole Board, based upon our interpretation of KRS 439.330, did not have jurisdiction to award such jail time. Therefore, based upon our mutual analysis of the statute, the defendant/respondent filed a motion to dismiss. The Franklin Circuit Court, by order of April 9, 1976, dismissed the suit. Though no appeal was taken by either side in the case we are of the opinion that this is authority against the Parole Board exercising any authority or discretion insofar as jail time credit.
A third point we would mention to you is that the Parole Board is limited by statute in its powers. See KRS 439.330. Therefore, in view of the statutory limits on the authority of the Parole Board, KRS 439.330, we are of the opinion that the Board cannot file a motion to intervene so as to correct or modify an erroneous sentence in regards to jail time credit.
Fourth, although the Parole Board does have the statutory authority to adopt such rules or regulations wit respect to the eligibility of prisoners for parole, see KRS 439.340 (3), we are of the opinion that this statute may not be stretched to the point of administratively disregarding an incorrect order of a circuit court concerning jail time.
We are of the opinion that insofar as your second question, if this problem of the Parole Board is going to be dealt with then it must be by the Kentucky Legislature. Possibly all this would require would be an amendment to KRS 439.330 permitting the Parole Board to intervene by motion after judgment in order to correct an erroneous order of jail time credit on the sentence imposed.
Footnotes
Footnotes
* KRS 431.150
If in any trial in a circuit, county, quarterly, justice's or police court of this state, the defendant has been compelled to remain in jail, by reason of his inability to execute bond, to answer the charge in the court in which he is held, and, on trial had in such court, he has been found guilty and his punishment fixed at a fine or a term in the county jail, he shall, in the case of a fine, be given credit at the rate of two dollars per day for each day he was so compelled to remain in jail, and in the case of a jail sentence, shall be given credit on such sentence for the time he was so compelled to remain in jail. The court shall endorse on the judgment a credit for the number of days the defendant was so compelled to remain in jail, and, in the case of a jail sentence, shall make an entry on the commitment and the defendant shall be discharged from the county jail when he has served the full term for which he was convicted less such credit of time as he is to receive as herein provided.
* See the same case on discretionary review in the Supreme Court of Kentucky, Polsgrove v. Kentucky Bureau of Corrections, Ky. 559 S.W.2d 736 (1977).