State v. Hildebrandt

MODIFIED OPINION1 NOT DESIGNATED FOR PUBLICATION Nos. 128,479 128,480 128,481 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. LAWRENCE KEITH HILDEBRANDT JR., Appellant. MEMORANDUM OPINION Appeal from Leavenworth District Court; GERALD R. KUCKELMAN, judge. Submitted without oral argument. Original opinion filed September 18, 2026. Modified opinion filed October 30, 2026. Affirmed in part, vacated in part, and remanded with directions. Dylan J. Pryor, of Kansas Appellate Defender Office, for appellant. Andrew J. Lohmann, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee. Before MALONE, P.J., HURST and COBLE, JJ. PER CURIAM: Lawrence Keith Hildebrandt Jr. pled guilty in three separate cases and now seeks additional jail credit and the reversal of laboratory fees associated with 1 REPORTER’S NOTE: No. 128,479 was modified by the Court of Appeals in response to the motion for rehearing or modification filed by the appellant on October 2, 2026. The modified language appears throughout the opinion. 1 those convictions. Before sentencing, Hildebrandt moved to withdraw his plea which the district court denied and subsequently sentenced him to three consecutive prison terms— one for each case. Hildebrandt successfully appealed the district court's denial of his motion to withdraw his plea, and he was awarded a new hearing on the matter with new counsel. On remand, the district court yet again denied the motion to withdraw his plea and then resentenced Hildebrandt to the original sentence with credit for the time served toward his sentence during the appeal. Hildebrandt brings two claims on appeal, one seeking jail credit and one seeking reduction or elimination of lab fees. In his first claim, Hildebrandt seeks the benefit of cases decided during his first appeal that permit defendants to receive duplicative jail credit for the time he spent incarcerated pending disposition of his original sentencing and the time he spent incarcerated pending disposition of his appeal from his original sentencing date until he was resentenced. Contrary to Hildebrandt's argument, because he remained convicted and sentenced during the appeal, that incarceration time was not time spent pending the disposition of his cases and he is not entitled to duplicative jail credit for that time. However, Hildebrandt is correct that under the current caselaw the district court erred in calculating the jail credit he should receive for the time spent incarcerated pending disposition of his original sentencing. Hildebrandt is also correct that the district court erred in assessing him two lab fees in his third case. Therefore, the district court’s jail credit calculation and its $800 lab fee are both vacated, and this case is remanded for the district court to recalculate Hildebrandt’s jail credit for the time spent incarcerated pending disposition of his original sentencing in August 2022 consistent with this opinion. FACTUAL AND PROCEDURAL BACKGROUND In 2022, Hildebrandt pled guilty and was sentenced in three separate criminal cases: 2018-CR-694 (Case One), 2019-CR-789 (Case Two), and 2020-CR-405 (Case 2 Three). Before sentencing, the district court addressed Hildebrandt's motions related to withdrawing his guilty plea. The court first denied the motion made by Hildebrandt's counsel to withdraw, finding that no conflict arose between counsel and Hildebrandt despite counsel's repeated concerns of a conflict. The district court denied Hildebrandt's motion to withdraw his plea on its merits. The court then sentenced Hildebrandt to a total of 126 months of imprisonment—43 months in Case One, 43 months in Case Two, and 40 months in Case Three—and ordered that the sentences be served consecutively. At the original sentencing in August 2022, the district court awarded Hildebrandt 263 days of jail credit in Case One and 411 days of jail credit in Case Three, and no days of jail credit in Case Two. Hildebrandt's First Appeal and Remand In October 2022, Hildebrandt appealed the district court's denial of the motion to withdraw his plea, arguing in part that the district court abused its discretion by denying Hildebrandt's motion without holding a substantive hearing. See State v. Hildebrandt, No. 125,659, 2024 WL 302045, at *3 (Kan. App. 2024) (unpublished opinion). In January 2024, a panel of this court found that Hildebrandt was not represented by conflict-free counsel during the motion to withdraw his plea, and was thus not meaningfully heard, and reversed the denial and remanded "for the appointment of conflict-free counsel to represent Hildebrandt on his motion to withdraw plea." 2024 WL 302045, at *3. On remand, the district court held a new hearing on Hildebrandt's motion to withdraw his plea where he was represented by new counsel. The court found that Hildebrandt failed to show good cause to withdraw his plea and again denied his motion. After seeking input from the parties, the court set the case for a hearing and explained it would resentence Hildebrandt, or, if the parties believed that the previous sentence still stood, it would do nothing. 3 Hildebrandt's Resentencing At the hearing in November 2024, the district court asked the State whether the court needed to resentence Hildebrandt. The State responded that it had "found some cases that state that if there is a conflicted counsel, that it may impede the right to effective assistance of counsel in proceedings; and so I think out of an abundance of caution, we could re-sentence, Judge, but I found nothing solid on that point." Following the State's contention, the district court resentenced Hildebrandt to 126 months' imprisonment, mirroring the same sentence it originally imposed in all other meaningful respects. The only change was that the district court awarded an additional 808 days of credit in Case One for the time Hildebrandt was incarcerated between the original sentencing in August 2022 and the resentencing in November 2024. The court ordered, as it had at the original sentencing, that the sentence in Case One run consecutive to any other sentences based on a special rule for a crime committed while on felony probation. In Case Two, the court imposed a prison sentence of 43 months, and it did not mention jail credit. In Case Three, the court imposed a prison sentence of 40 months and stated that Hildebrandt would "be granted credit for the jail time that has been served in this matter." In the journal entries of judgment, the district court awarded Hildebrandt 1071 days of credit in Case One, 0 days in Case Two, and 411 days in Case Three, which represented the original credit plus an additional 808 days in Case One for the time spent on appeal. In the jail credit section of the journal entry for Case Two, the district court noted that the "[s]entence begins when sentence in [Case One] is complete." In the jail credit section of the journal entry for Case Three, the district court noted that the "[s]entence begins when sentence in [Case One] and [Case Two] is complete." The district court also imposed a lab fee of $800 in Case Three, and that fee is reflected in the journal entry of sentencing. 4  Following the resentencing, Hildebrandt filed a notice of appeal. DISCUSSION On appeal, Hildebrandt brings three claims of error. First, Hildebrandt claims the district court erred in calculating his credit for time incarcerated seeking duplicative credit in Cases Two and Three for the time spent incarcerated during his appeal. Second, he argues the district court erred in calculating the credit for the time he spent incarcerated pending disposition of his original sentencing. Finally, he contends the district court erred in imposing the $800 lab fee in Case Three. As a preliminary matter, the State argues for the first time in this appeal that Hildebrandt's claims are barred or waived because the district court erred in resentencing him in November 2024. According to the State, when the district court denied Hildebrandt's presentence motion to withdraw on remand there were no issues remaining that needed to be decided; thus, the district court lacked authority to resentence Hildebrandt. The State argues that because Hildebrandt's original sentence remained effective and the district court had no authority to resentence him, Hildebrandt has waived any issues not brought in his first appeal. While the State's argument regarding the necessity of resentencing in November 2024 might have merit, the State did not challenge the district court's authority to resentence Hildebrandt at that time. See State v. Rodriguez, 60 Kan. App. 2d 320, 337, 494 P.3d 155 (2021) (noting resentencing on remand not necessary when mandate did not vacate sentence). Rather, at that time the State raised the concern that Hildebrandt's lack of conflict-free counsel at his previous sentencing might have burdened his right to effective assistance of counsel at the original sentencing and suggested that the district court should resentence Hildebrandt out of an "abundance of caution." In fact, the State suggested the resentencing it now claims was an error. 5  Now, for the first time on appeal, the State argues—as a defense to Hildebrandt's claims—that the district court should not have resentenced Hildebrandt in November 2024. The State did not appeal or cross appeal the district court's resentencing, and this court is limited to reviewing district court decisions that are brought to it on appeal or cross appeal. Thus, the State's attempt to attack the district court's decision to resentence Hildebrandt as a defense to his current appeal is not subject to appellate review. See K.S.A. 60-2103(h) (a cross appeal must be filed when "the appellee desires to have a review of rulings and decisions of which such appellee complains"); see also State v. Volle, 321 Kan. 447, 455, 580 P.3d 1223 (2025) (finding State needed to file cross appeal to permit appellate review of district court's probable cause finding). I. HILDEBRANDT'S JAIL CREDIT CLAIMS Hildebrandt asks this court to address jail credit issues relating to two distinct categories of time: (a) the time he was incarcerated on appeal from his original sentencing date until he was resentenced and (b) time that he spent incarcerated pending disposition of his original sentences. These two time periods must be addressed separately, but the question of preservation and issues related to determining the applicable legal standard apply equally to both. While the State's argument regarding waiver holds no merit, there remains a preservation requirement for appellate review. See State v. Green, 315 Kan. 178, 182, 505 P.3d 377 (2022) ("In general, issues not raised before the district court may not be raised on appeal."). Hildebrandt admits he did not object to the district court's jail credit award at the original sentencing or resentencing but contends that unpreserved review of these issues are within a well-recognized exception to the general prohibition. Hildebrandt maintains his claims raise questions of law based on admitted facts. Kansas appellate courts have regularly reached this issue without preservation. See State v. Rhoiney, 314 Kan. 497, 500, 501 P.3d 368 (2021) (identifying exceptions to the 6 preservation rule); State v. Ervin, 320 Kan. 287, 306, 566 P.3d 481 (2025) (jail credit issue reached without preservation); State v. Watie, 66 Kan. App. 2d 166, 168, 557 P.3d 674 (Kan. App. 2025) (exercising discretion to consider the defendant's jail credit challenge for the first time on appeal and "find[ing] it significant" that the Ervin decision was issued during the pendency of the defendant's case). Hildebrandt's jail credit claims are properly reviewed as a question of law on known facts. Having found Hildebrandt’s jail credit claims properly reviewable, this court must determine which statutes and case law related to calculating jail credit apply to his claims. This question involves some complexity because of the evolving jail credit precedent. Hildebrandt committed the underlying offenses in Cases One, Two, and Three in June 2018, December 2019, and September 2020. The version of the jail credit statute in effect on those dates 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.) K.S.A. 21-6615(a). In Ervin, the Kansas Supreme Court interpreted this jail credit statute 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 the defendant also received jail credit for some or all of that time against a sentence in another case. 320 Kan. at 311- 12. Essentially, as this court has addressed numerous times since Ervin, when a defendant is ordered to serve consecutive prison sentences the defendant may be entitled to duplicative jail credit. Additionally, according to the Kansas Supreme Court, the statutory 7 interpretation outlined in Ervin was established in a prior case that represents the "change in the law" used for determining its applications. See State v. Romey, 321 Kan. 400, 420- 21, 580 P.3d 1 (2025) (stating Hopkins was the "change in the law" regarding jail credit); State v. Hopkins, 317 Kan. 652, 537 P.3d 845 (2023). As Hildebrandt contends, the sentencing statute interpreted in Hopkins and Ervin was the same one in effect when he committed the crimes underlying this appeal that were resentenced in November 2024. Additionally, the Hopkins decision was issued while Hildebrandt's appeal of the district court's denial of his motion to withdraw his plea was pending. 317 Kan. at 652. The State argues that the duplicative jail credit holdings in Hopkins and Ervin should not apply to Hildebrandt’s jail credit claims. In its first argument, the State contends that the Kansas Legislature's amendment to K.S.A. 21-6615, effective May 23, 2024, which removed the application of duplicative jail credit established in Ervin, should apply to Hildebrandt. See K.S.A. 2024 Supp. 21-6615(a)(2)(A) (excluding "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"). The State contends the amended statute should apply because Hildebrandt was resentenced in November 2024, after the effective date of the amended statute. However, as the State acknowledges, applying the generally applicable standard regarding sentencing, the statutory amendment does not apply to Hildebrandt because the date of the commission of the crime, not the date of sentencing, controls the applicable version of the sentencing law. See 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."). Hildebrandt committed the crimes relevant to this appeal between 2018 and 2022, meaning that the 8 2024 sentencing amendment is not applicable to his case. In Romey, the Kansas Supreme Court followed this rule and explained that "[t]he legislature has amended the jail-credit statute, but the version we considered in Ervin applies because it was in effect when [the defendant] committed the murder." 321 Kan. at 417-18. In its second argument, the State contends that Hopkins and Ervin were wrongly decided. 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. State v. Patton, 315 Kan. 1, 16, 503 P.3d 1022 (2022). There is no indication that the court intends to depart from those holdings, so this court must apply Ervin while it remains the law of the land. Finally, the State argues that Ervin is no longer controlling because the Kansas Legislature again amended K.S.A. 21-6615 effective July 1, 2026, in yet another effort to prevent the imposition of duplicative jail credit. The 2026 amendment added the following language to retroactively apply the amended statutory language and thus cut off the application of Ervin and Hopkins: "(d) (1) 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. The sentencing court may allocate such days to one case or apportion such days among cases, but the same days shall not be applied more than once to reduce multiple portions of consecutive terms. "(2) The provisions of this subsection shall apply to: (A) All sentences, whether pronounced before, on or after July 1, 2026, and to all computations of jail credit by the department of corrections and the courts; and (B) any case posture, including, but not limited to, direct appeals, probation revocation proceedings, motions to correct illegal sentence, habeas corpus actions and actions under 9  K.S.A. 60-1507, and amendments thereto, pending on or filed after July 1, 2026. "(3) Any judicial interpretations regarding application of jail time credit to consecutive sentences in conflict with or inconsistent with this section and the amendments to this section by this act are superseded to the extent of such conflict or inconsistency." K.S.A. 2026 Supp. 21-6615(d), as amended by L. 2026, ch. 62, § 1. At this court's request, the parties each filed supplemental briefing addressing the application of the 2026 statutory amendment to Hildebrandt's claims. Hildebrandt argues that retroactive application of the statutory amendment would violate the Ex Post Facto Clause of the United States Constitution and thus deprive him of a vested right. The United States Constitution provides that: "No State shall . . . pass any . . . ex post facto Law." U.S. Const. Art. I, § 10, cl. 1. The Ex Post Facto Clause "generally prohibits the retroactive criminalization of an act or the retroactive increase in the severity of punishment for an offense." Patton, 315 Kan. at 6. Unsurprisingly, the State contends that application of the amended sentencing statute would not violate the Constitution and it should be applied to Hildebrandt here. This issue is addressed more fully below. A. Hildebrandt is Not Entitled to Additional Credit for the Time Spent Incarcerated During Appeal Hildebrandt’s claim for duplicative jail credit during the pendency of his appeal is not subject to the holdings of Hopkins and Ervin. Hildebrandt's time incarcerated on appeal from his original sentencing date until he was resentenced does not constitute time spent "pending the disposition" of his cases as contemplated by these cases. Hildebrandt's cases were disposed of through the original sentencing in 2022. Thereafter Hildebrandt successfully appealed the district court's denial of his motion to withdraw his appeal, but that appeal did not affect his conviction or sentence. In fact, the appellate court did not reverse Hildebrandt's conviction or vacate his sentence and he remained convicted and 10 sentenced during his appeal, and thus he was not still “pending disposition” during that time. While distinguishable from the unique facts of this case, panels of this court have differentiated post-sentencing incarceration time from time spent incarcerated pending the disposition of the case. See State v. Martin, 66 Kan. App. 2d 173, 176, 577 P.3d 667 (2025) (time spent incarcerated for a conviction not considered as time spent pending disposition of separate crime charged during that incarceration); see also State v. Thompson, 66 Kan. App. 2d 223, 229-230, 579 P.3d 511 (2025) (time released on bond after conviction and sentencing but incarcerated in another state for unrelated charges not counted for jail credit). Additionally, although the term jail credit is not defined in the statute, for purposes of computing a sentence the Department of Corrections defines jail credit to be "the time spent in confinement, pending the disposition of the case, before the sentencing to the custody of the secretary of corrections . . . .'' K.A.R. 44-6-101(c)(1). The time Hildebrandt spent incarcerated post-conviction during appeal was time spent post-sentencing in the custody of the secretary of corrections and not time spent "pending the disposition of the case." Therefore, Hildebrandt is not entitled to duplicative jail credit under the holdings of Hopkins and Ervin for that time. B. Hildebrandt is Entitled to Additional Credit for Time Spent Incarcerated Pending the Original Sentencing This court must now address Hildebrandt’s claim that he is entitled to jail credit for the time spent incarcerated pending disposition of his original sentence. For the reasons stated above, the decisions in Ervin and Hopkins apply to the time Hildebrandt spent incarcerated pending the disposition of his original sentences. Therefore, this court must determine whether the 2026 statutory amendment to the Kansas jail credit statute at K.S.A. 21-6615(d) violates the Ex Post Facto Clause of the United States Constitution, as applied to Hildebrandt in this case. 11  While the parties argue about whether Hildebrandt has a "vested right" to jail credit, this question is irrelevant, as a law "need not impair a 'vested right' to violate the ex post facto prohibition." Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981). The Ex Post Facto Clause prohibits the application of a change in law where: (1) a defendant is punished for an act that was not criminal at the time they committed the act, (2) the punishment for an offense has been made more burdensome after the act was committed, or (2) 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). "To fall within the ex post facto prohibition, a law must be retrospective" and must disadvantage the criminal offender "by . . . increasing the punishment for the crime." Lynce v. Mathis, 519 U.S. 433, 441, 117 S. Ct. 891, 137 L. Ed. 2d 63 (1997). To put it simply, a statute that purports to impose an additional punishment to that which was prescribed at the time the crime was committed violates the Ex Post Facto Clause. State v. Davidson, 314 Kan. 88, 90, 495 P.3d 9 (2021). "The central concerns of the Ex Post Facto Clause are: 'the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.'" Lynce, 519 U.S. at 441. Hildebrandt argues that the 2026 jail credit amendment, which states that it applies to "[a]ll sentences, whether pronounced before, on or after July 1, 2026," and to "any case posture, including, but not limited to direct appeals …" retroactively increases the punishment he faces for his offenses. The parties do not dispute the retrospective nature of the 2026 statutory amendments. The first issue is whether this retrospective change increases Hildebrandt's punishment. 12  The State contends that jail credit merely changes the starting date of the sentence and thus does not increase Hildebrandt's punishment. That argument lacks support. The United States Supreme Court has held that a change in law that canceled provisional release credits for certain inmates resulting in the defendant retroactively losing 1,860 days of provisional credit violated the Ex Post Facto Clause. Lynce, 519 U.S. at 446. Similarly, the United States Supreme Court also held that an amendment to a Florida statute retroactively reducing the rate of gain-time earned for good conduct violated the Ex Post Facto Clause where "this reduction in gain-time accumulation lengthens the period that someone in petitioner's position must spend in prison." Weaver, 450 U.S. at 32-33. The Kansas Supreme Court applied Weaver, concluding that an amended regulation's potential to reduce good time credit was ex post facto because good time credit no longer earned extended "the actual term of . . . punishment." Stansbury v. Hannigan, 265 Kan. 404, 416-17, 960 P.2d 227 (1998). The State presents no argument to distinguish why this same logic should not apply to jail credit where a reduction in jail credit effectively increases a criminal defendant's actual term of incarceration by extending their prison stay. The State argues that since Hildebrandt committed his crimes before Hopkins and Ervin were decided, retroactive application of the 2026 amendment to the jail credit statute cannot be deemed to increase his punishment in violation of the Ex Post Facto Clause. It reasons that Hildebrandt cannot be subject to an ex post facto violation if the retroactive amendment only changes the law back to that which Hildebrandt should have expected when he committed his crimes. However, that timing does not address the meaning of the statute in effect when Hildebrandt committed the crimes—it merely notes the fundamental principle in the law that "'statutes operate only prospectively, while judicial decisions operate retrospectively.'" Rivers v. Roadway Express, Inc., 511 U.S. 298, 311, 114 S. Ct. 1510, 128 L. Ed. 2d 274 (1994). "A judicial construction of a 13 statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction." 511 U.S. at 312-13. As a panel of this court recently explained in addressing the same argument, the decisions in Hopkins and Ervin merely explained the court's "understanding of what the jail credit statute was always intended to mean . . . . " State v. Channel, 67 Kan. App. 2d __, 2026 WL 3030978, at *10 (2026). In short, as interpreted by the court in Hopkins and Ervin, under the pre-2024 version of the Kansas jail credit statute in effect when Hildebrandt committed his crimes, a criminal defendant is entitled to receive jail time credit for all the time the defendant is incarcerated pending the disposition of their case, regardless of whether the defendant receives credit for some or all of that time against a sentence in another case. Here, Hildebrandt spent some amount of time incarcerated pending the disposition of Case One, Case Two, and Case Three between January 2019 until his original sentencing in August 2022. The district court accounted for some of that time by awarding credit in Case One and Case Three at the original sentencing, but under the holdings of Hopkins and Ervin the district court erred in those calculations. As a result, this court vacates the jail credit award and remands with directions for the district court to determine Hildebrandt's jail credit for the time he spent incarcerated pending the disposition of his original sentence, consistent with the decision in Ervin. II. THE DISTRICT COURT ERRED BY IMPOSING TWO LAB FEES In Hildebrandt's final claim of error, he argues that the district court improperly imposed a $800 lab fee in Case Three. Under K.S.A. 28-176(a)(1), a sentencing court "shall order" a person convicted or adjudicated of certain offenses "to pay a separate court cost of $400 for every individual offense if forensic science or laboratory services . . . are provided, in connection with the investigation, by . . . [t]he Kansas 14 bureau of investigation." Hildebrandt argues that because the district court convicted him of only one crime in Case Three, he should not have received duplicative $400 fees. He also argues that this court should vacate the entire $800 fee because the State failed to present evidence that the KBI provided any laboratory services. Once again, Hildebrandt brings a claim on appeal that was not raised before the district court. Like his other issue, Hildebrandt contends this court should accept review because the claim fits within a recognized exception permitting appellate review of unpreserved claims—that its resolution is a question of law raised on admitted facts. See Rhoiney, 314 Kan. at 500 (listing recognized exceptions permitting appellate review, including that "the new claim raises only a question of law based on uncontested facts"). Notably, the State admits that the district court was only authorized to impose a $400 KBI lab fee under K.S.A. 28-176(a) and concedes that this court should vacate the assessment of the $800 KBI lab fee and remand with directions to order a $400 KBI lab fee. The State agrees that although Hildebrandt failed to object to the imposition of the $800 lab fee, his claim that he should only have received one $400 fee based on his single conviction is a question of law on admitted facts. However, the State contends—and this court agrees—that Hildebrandt's argument that no KBI lab testing was performed is an unpreserved question of fact that does not fit within the exception permitting appellate review. See State v. Gatewood, 321 Kan. 564, 576, 582 P.3d 534 (2026) (declining to reach the merits of an unpreserved claim related to forensic fees where it "appear[ed] to be a fact question that should have been addressed by the district court," among other reasons). Hildebrandt's first claim of error regarding lab fees is merely a question of law. Pursuant to K.S.A. 28-176(a), Hildebrandt is only responsible for a $400 lab fee for each conviction, and thus the district court erred in assessing an $800 fee in Case Three. See, e.g., State v. Jones, No. 127,293, 2025 WL 2741851, at *18 (Kan. App. 2025) 15 (unpublished opinion) (finding the district court should have assessed one $400 fee per conviction), rev. granted 321 Kan. 792 (2026) (review granted on issues not related to the lab fees). This court declines to review Hildebrandt's unpreserved second claim that the district court lacked sufficient evidence to assess any lab fees as it involves a question of fact. See, e.g., State v. Daniels, No. 129,105, 2026 WL 1045410, at *2 (Kan. App. 2026) (unpublished opinion) (declining to review the merits of the defendant's challenge and finding Gatewood persuasive), petition for rev. filed May 18, 2026. CONCLUSION Despite being resentenced after remand from appeal, Hildebrandt stood convicted and sentenced during his appeal and is not entitled to duplicative jail credit for that time. However, he is entitled to the benefit of the holding in Ervin in this appeal of his sentence for time spent incarcerated pending disposition of his original sentencing. Regarding his third issue, the district court erred by imposing more than one lab fee based on the plain language of K.S.A. 28-176(a), but this court will not review Hildebrandt's unpreserved claim regarding the basis of the lab fees. Hildebrandt's jail credit calculation and the $800 lab fee are vacated, and this matter is remanded for recalculation of Hildebrandt's jail credit for the time spent incarcerated pending the disposition of his original sentence in August 2022 and for imposition of a $400 lab fee. Affirmed in part, vacated in part, and remanded with directions. *** COBLE, J., dissenting: I respectfully dissent on one issue. While I agree with my colleagues' conclusion that Hildebrandt is not entitled to duplicative jail credit for the time during which he remained convicted and sentenced during his appeal, awaiting resentencing, I would likewise find he is not entitled to the benefit of the holding in Ervin for time spent incarcerated pending disposition of his original sentencing. 16  Two distinct paths are emerging from our court as to how we view the retroactive application of the 2026 amendments to crimes which were committed before our Supreme Court decided Hopkins. One, which the majority follows, is that of State v. Channel, 67 Kan. App. 2d ___, 2026 WL 3030978, at *10 (2026), which reasons that the decisions in Ervin and Hopkins merely explained the court's "understanding of what the jail credit statute was always intended to mean . . . ." Channel, 67 Kan. App. 2d ___, 2026 WL 3030978, at *10. As a result, any defendant whose sentence and jail credit order is not final and is on direct appeal receives the benefit of the holdings in Hopkins and Ervin, even if the defendant’s crimes were committed pre-Hopkins. A second path derives from our court's recent decision in State v. Bellamy, 67 Kan. App. 2d 132, 2026 WL 2794389 (2026), petition for rev. filed October 19, 2026; see also State v. Salazar, No. 129,255, 2026 WL 2883904 (Kan. App. 2026) (unpublished opinion) (finding no ex post facto violation of the 2026 amendments to pre-Hopkins crimes), petition for rev. filed October 16, 2026. In Bellamy, another panel of our court found that the Ex Post Facto Clause was not violated there because the no duplicate jail credit law found in the 2026 amendment to K.S.A. 21-6615(d) "is the same now as it was when Bellamy committed her crimes and violated her probation. She cannot lose what she never had. The prohibition against ex post facto laws only applies to criminal statutes 'which disadvantage the offender affected by them.'" Bellamy, 67 Kan. App. 2d at 141, 2026 WL 2794389 (quoting Collins v. Youngblood, 497 U.S. 37, 41, 110 S. Ct. 2715, 111 L. Ed. 2d 30 [1990]). As determined by our court in Bellamy, application of the 2026 amendments to Hildebrandt's case would not change his punishment and "would not inflict a greater punishment than the law annexed to the crime when committed." 67 Kan. App. 2d at 141, 2026 WL 2794389. I would choose to follow the logic of the panels in Bellamy and Salazar to find that, because Hildebrandt committed his crimes before our Supreme Court changed decades of judicial interpretation in Hopkins, he bore no expectation of duplicative jail 17 credit at the time his crimes were committed, and as a result, the retroactive application of the 2026 amendment to K.S.A. 21-6615(d) does not create an ex post facto violation. I would deny Hildebrandt's request for duplicative jail credit for the time he spent incarcerated pending disposition of his original sentencing. In all other respects, I join my colleagues' well-reasoned decision. 18