State v. Sauvage

NOT DESIGNATED FOR PUBLICATION No. 129,438 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. DELANE LEWIS SAUVAGE, Appellant. MEMORANDUM OPINION Appeal from Decatur District Court; JESSIE A. THOMPSON, judge. Submitted without oral argument. Opinion filed October 30, 2026. Sentence vacated in part, and case remanded with directions. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Andrew J. Lohmann, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee. Before COBLE, P.J., BRUNS and ISHERWOOD, JJ. PER CURIAM: Delane Lewis Sauvage appeals the district court's award of jail credit, arguing he is entitled to duplicative credit for time spent in both this case and another case under K.S.A. 2022 Supp. 21-6615. The State contends that the 2026 amendments to the jail credit statute, which became effective on July 1, 2026, preclude Sauvage's claim and supersede the Kansas Supreme Court cases interpreting the previous version of the statute as allowing duplicative credit. Sauvage did not brief the issue of the 2026 statutory amendment. Given the lack of briefing on the recent amendments, and in consideration of recent appellate decisions, we vacate the district court's award of jail 1 credit and remand this case to the district court to reconsider the issue of jail credit as directed below. FACTUAL AND PROCEDURAL BACKGROUND We first acknowledge that the State asks this court to take judicial notice of filings from case No. 2023-CR-000010 (Case 1), a Decatur County case filed against Sauvage in June 2023. Sauvage likewise references Case 1 in his argument, conceding that Case 1 is relevant here, and does not dispute that the court may take judicial notice of its filings. K.S.A. 60-409 allows judicial notice to be taken of certain facts and circumstances that "are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy." K.S.A. 60-409(b)(4); see also In re Nwakanma, 306 Kan. 704, 706, 397 P.3d 403 (2017) ("'[J]udicial notice may be taken of matters of public record in other courts or governmental bodies.'"); cf. State v. Wente, No. 128,231, 2026 WL 849335, at *3 (Kan. App.) (unpublished opinion) (implicitly taking judicial notice of a pending case and previous criminal conviction in reviewing a jail credit claim), rev. denied 322 Kan. ___ (2026). The State charged Sauvage in Case 1 for sex offense crimes committed in 2014 through 2017. Sauvage was arrested on June 27, 2023, and remained in jail while the case was pending. He entered into a diversion agreement on a felony charge of aggravated child endangerment and pleaded guilty to three counts of misdemeanor sexual battery. On August 10, 2023, the district court sentenced him to a controlling term of one year in jail. While serving his sentence in Case 1, the State charged Sauvage with drug possession offenses in case No. 2023-CR-300006 (Case 2) on November 28, 2023, for acts committed on April 26, 2023—before his arrest in Case 1. He was arrested on November 29, 2023, convicted of a single distribution offense, and sentenced on April 24, 2024. At sentencing in Case 2, the district court granted Sauvage a dispositional 2 departure to probation for five years. The court ordered an underlying sentence of 130 months of imprisonment, consecutive to Sauvage's sentence in Case 1. Addressing jail credit in Case 2, the district court found Sauvage was entitled to credit for time served pending resolution of that case, but only in one of his two cases. The court applied the credit to Case 1 and, finding Sauvage was not entitled to duplicate credit, declined to credit any jail credit in Case 2. The following events unfolded in parallel across both cases. While on probation in Case 2, Sauvage served two intermediate jail sanctions after violating his probation. He first served a two-day sanction on September 6-8, 2024, and later a three-day sanction on November 15-18, 2024. Meanwhile, in Case 1, Sauvage stipulated to violating his diversion agreement on November 27, 2024. He agreed to plead guilty to the original charge of felony aggravated child endangerment. The district court found him guilty and ordered him to be remanded to jail on December 3, 2024. Two months later, the district court sentenced Sauvage to 13 months of imprisonment on Case 1 and awarded him credit for the time that he spent in jail between December 3, 2024, and sentencing on February 3, 2025. He was also credited in Case 1 with the one-year jail term that he served from June 27, 2023, to June 21, 2024. Approximately two months later, the State filed a motion to revoke Sauvage's probation in Case 2. He was arrested on April 29, 2025. On July 14, 2025, the district court revoked Sauvage's probation and imposed his original 130-month sentence. The district court awarded Sauvage 81 days of jail credit for the time that he served for his two intermediate jail sanctions (September 6-8, 2024, and November 15-18, 2024) and the time he was held over on the State's motion to revoke (April 29 to July 14, 2025). 3  Sauvage received credit for all the time he spent in jail on matters related to Case 2, except for the 147-day period between his initial arrest on November 29, 2023, and his initial sentencing on April 24, 2024. As explained, Sauvage was simultaneously serving a one-year jail sentence throughout that entire period in Case 1, and the district court credited all 147 days toward Sauvage's sentence in that case. Sauvage also highlights that the district court did not award any jail credit in Case 2 for time that he was incarcerated for matters related only to Case 1. Sauvage timely appeals. DISCUSSION On appeal, Sauvage contends that he is entitled to the jail credit calculation announced in State v. Hopkins, 317 Kan. 652, 652, 657, 537 P.3d 845 (2023), and subsequently clarified in State v. Ervin, 320 Kan. 287, 311-12, 566 P.3d 481 (2025). As in most cases invoking those holdings, Sauvage argues that he is entitled to duplicative credit for time that he spent incarcerated in both of his criminal cases pending disposition of Case 2. He also argues that he is entitled to credit for the time he spent incarcerated in Case 1 only. The State responds that the 2026 amendments to the jail credit statute, K.S.A. 21- 6615, apply to Sauvage's sentence and bars his request for duplicative credit. The State also argues that the amended statute supersedes our Supreme Court's holding in Hopkins and its progeny and broadly prohibits duplicative jail credit in any case. In the alternative, the State argues that Sauvage is not entitled in this case to any credit for time served in Case 1 and is eligible for, at most, the 147 additional days under Hopkins. 4 Preservation We must first address a preservation concern. Sauvage concedes he did not present this issue to the district court but argues that we should consider it because it primarily involves a question of law. The State, however, argues that this issue should be dismissed as unpreserved because Hopkins was decided before Sauvage's sentencing and yet he still failed to raise the issue. Generally, issues that are not raised before the district court cannot be raised for the first time on appeal. State v. Williams, 311 Kan. 88, 92, 456 P.3d 540 (2020). We can review an unpreserved claim if it satisfies one of the available preservation exceptions. Those exceptions include the following: (1) The new claim raises only a question of law based on uncontested facts; (2) consideration is necessary to serve the ends of justice or prevent denial of fundamental rights; or (3) the district court's judgment is correct for the wrong reason. State v. Rhoiney, 314 Kan. 497, 500, 501 P.3d 368 (2021). Since Hopkins was decided, our appellate courts have regularly accepted the first two of these exceptions in granting review of unpreserved jail credit issues. See, e.g., Ervin, 320 Kan. at 306 (invoking question-of-law exception to preservation and addressing merits of jail credit claim for the first time on appeal); State v. Brown, 65 Kan. App. 2d 663, 671, 570 P.3d 1278 (finding review of jail credit issue necessary to serve the ends of justice and prevent the denial of fundamental rights), rev. denied 321 Kan. 791 (2025). Yet even if an exception applies, this court retains discretion and may decline review. State v. Mendez, 319 Kan. 718, 730, 559 P.3d 792 (2024). Kansas caselaw is clear that "an appellate court has discretion to decide when to walk this path." State v. Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017). The State is correct that Sauvage could have raised this claim before the district court. The mandate in Hopkins was issued on January 19, 2024, and the Ervin mandate 5 followed on June 2, 2025. Months after Hopkins, the district court addressed jail credit at Sauvage's initial sentencing on April 24, 2024. Then, after Ervin, the district court considered jail credit at Sauvage's probation revocation on July 14, 2025. This provided defense counsel with ample time to at least familiarize themselves with the rulings and lodge an objection at one or both hearings. Cf. State v. Neal, No. 128,454, 2026 WL 1846729, at *2 (Kan. App. 2026) (unpublished opinion) (giving similar consideration to the option of dismissing unpreserved jail credit argument), petition for rev. filed July 27, 2026. Even so, we acknowledge that a majority of the jail credit challenges addressed by our courts have been technically unpreserved. And, given the recent amendment to K.S.A. 21-6615(d) which directs both our discussion below and decision to remand this matter for the district court's consideration, we opt to entertain Sauvage's current challenge as a question of law and one which is necessary to serve the ends of justice and prevent the denial of fundamental rights. Standard of Review To the extent this issue involves statutory interpretation, appellate review is unlimited. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024). The right to jail credit is purely statutory. State v. Fowler, 238 Kan. 326, 336, 710 P.2d 1268 (1985). Statutory interpretation presents a question of law over which appellate courts have unlimited review. Daniels, 319 Kan. at 342. Appellate courts "exercise plenary review over questions of statutory interpretation." Hopkins, 317 Kan. at 656. Our goal in interpreting statutes is to give effect to the Legislature's intent, evinced through the statutory language it has enacted. John Doe v. M.J., 315 Kan. 310, 320, 508 P.3d 368 (2022). We thus "'follow the express 6 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]). An appellate court should not speculate about the legislative intent behind clear statutory language. State v. Keys, 315 Kan. 690, 698, 510 P.3d 706 (2022). We do not resort to canons of construction or legislative history to construe the Legislature's intent unless the text is unclear or ambiguous. State v. Betts, 316 Kan. 191, 198, 514 P.3d 341 (2022). Overview of Current Kansas Caselaw and Statutes K.S.A. 21-6615 governs the award of jail credit, which until recent changes stated that a defendant in a criminal case must receive "an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant's case." K.S.A. 21-6615(a) (Self 2023). "In the past, the Kansas appellate courts interpreted this language to mean that defendants could receive credit only if they were not being confined for any other pending case or sentence." State v. Watie, 66 Kan. App. 2d 166, 168, 577 P.3d 674 (2025) (citing State v. Smith, 309 Kan. 977, 981, 441 P.3d 1041 [2019]), rev. denied 321 Kan. 795 (2026). However, in 2023 and 2025, our Supreme Court interpreted this provision in Hopkins and Ervin to mean that a criminal defendant is entitled to jail credit for time spent incarcerated awaiting resolution of criminal charges in a particular case. Hopkins held that credit is not limited to time spent "solely" on the charge of conviction, then Ervin clarified and extended Hopkins to duplicative jail credit across cases, regardless of credit received in another case. If a defendant is held in jail awaiting resolution of multiple cases, he or she is entitled to jail credit for that time in each of those cases so 7 long as he or she is held on those cases. Hopkins, 317 Kan. at 659; Ervin, 320 Kan. at 311-12; see also Watie, 66 Kan. App. 2d at 171 (holding that Hopkins and Ervin obligate a district court to "award an allowance for all time spent incarcerated pending the disposition of his case, even if that would result in duplicative credit, and even if that result would effectively eliminate the consecutive sentence required by K.S.A. 21- 6606[c]"). In response to Hopkins, the Kansas Legislature amended K.S.A. 21-6615. See L. 2024, ch. 96, § 7. As amended, the statute provides as follows: "(2) When computing the defendant's sentence, the following shall not be considered time spent incarcerated pending disposition of the defendant's case: (A) Any time awarded as credit in another case when consecutive sentences are imposed on a defendant; or (B) any time spent incarcerated in another jurisdiction if no hold has been issued in such jurisdiction for the case being sentenced." K.S.A. 2024 Supp. 21-6615(a)(2). Since the 2024 amendments went into effect, appellate disputes have tended to revolve around which version of the statute applies to a particular claim. The State's position has been that the Legislature intended the 2024 amendments to apply to all sentences imposed after the effective date of the statute. The competing claim asserts that the amendments apply only to crimes committed after the effective date of the amendments. See, e.g., State v. Mitchell, 66 Kan. App. 2d 196, 203, 579 P.3d 970 (2025), rev. granted 321 Kan. 793 (2026); State v. Voelker, No. 128,912, 2026 WL 1758479, at *2-3 (Kan. App. 2026) (unpublished opinion). Among relevant considerations in determining this, the Kansas Supreme Court has held that changes in the law generally apply prospectively. State v. Jacobson, 319 Kan. 70, 77, 552 P.3d 1239 (2024). It is also well-established that the date of the defendant's 8 crime usually determines which sentencing statute applies. State v. Juiliano, 315 Kan. 76, 80, 504 P.3d 399 (2022). Applying these basic statutory rules in Mitchell, our court determined that the 2024 amendments apply only prospectively. More specifically, the panel found the amended statute only applies to crimes committed after the amendments went into effect, not if the defendant committed crimes before but was sentenced after the effective date. 66 Kan. App. 2d at 206-07. The panel reached this conclusion by adhering to the following three longstanding statutory rules: (1) Interpretation must be based on express language only; (2) a defendant is sentenced according to the date of their offense; and (3) unless a statute expressly provides for retroactive application, it presumably applies only prospectively. Mitchell, 66 Kan. App. 2d at 203-04. Based on this review, the panel concluded that the "[L]egislature provided no indication that it intended the amended jail- credit statute to apply retroactively in any respect." 66 Kan. App. 2d at 204. Subsequent panels of this court adopted Mitchell's reasoning and thus declined to find the 2024 version of the statute applicable regardless of the defendant's sentencing date. As in Mitchell, the panels found the date of the offense controls which version of the statute applies. See, e.g., State v. Walker, No. 128,268, 2026 WL 1701350, at *6 (Kan. App. 2026) (unpublished opinion), petition for rev. filed July 13, 2026; Voelker, 2026 WL 1758479, at *3. Another common argument raised here by the State and in many other cases is that Hopkins and Ervin were wrongly decided. Our Supreme Court took up this argument in State v. Zongker, 322 Kan. 137, 140-43, 586 P.3d 769 (2026), and ultimately denied that it erred in interpreting the statute as allowing duplicative credit. As a part of this review, the court considered the Legislature's intent in passing the 2024 amendments. Rather than viewing the action as indicating that the Legislature never intended to allow duplicative 9 credit, the court found the amendment was "evidence that Ervin read the statute correctly." Zongker, 322 Kan. at 141. Following the decisions in Mitchell and Zongker, the Legislature passed another amendment to K.S.A. 21-6615, which recently took effect on July 1, 2026. See L. 2026, ch. 62, § 1. The State asserts that as amended, the statute now unequivocally supersedes Hopkins and Ervin and precludes Kansas courts from awarding duplicative jail credit in any case, following the law's plain language: "(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 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." (Emphases added.) K.S.A. 2026 Supp. 21-6615(d). Our Supreme Court has not yet answered the question of whether or how the amended statute applies to a pending appeal. But a very recent opinion by our court squarely addresses this question. In State v. Channel, a panel of our court found that the 2026 statutory amendment to K.S.A. 21- 10 6615(d) violates the Ex Post Facto Clause of the United States Constitution, as applied to that defendant. 67 Kan. App. 2d ___, 2026 WL 3030978, at *10 (2026) (petition for review period still pending). There, much like Sauvage, Channel's crime occurred prior to the Hopkins decision, but her sentencing occurred after Hopkins. The panel noted that "[b]ecause Hopkins and Ervin were decided before Channel's sentence [became] final, she ordinarily is entitled to receive the benefit of the holdings in those decisions." Channel, 67 Kan. App. 2d ___, 2026 WL 3030978, at *6 (citing State v. McAlister, 310 Kan. 86, 91, 444 P.3d 923 [2019]). Even so, the current amendment, K.S.A. 2026 Supp. 21-6615(d) expressly applies retroactively and to all sentences, even those pronounced before the statute's adoption. The Channel court explained how the retroactive application of the 2026 amendment creates an ex post facto violation. Important to Sauvage's case, it found that "when the Kansas Supreme Court decided Hopkins and Ervin, it was explaining its understanding of what the jail credit statute was always intended to mean, albeit overruling prior decisions in the process." Channel, 67 Kan. App. 2d ___, 2026 WL 3030978, at *9. So, then, whether Sauvage's crime was committed pre-Hopkins or not would not matter. As in Channel, Sauvage would likely be "entitled to the benefit" of the holdings in Hopkins and Ervin but the "retroactive application of the 2026 amendment to the jail credit statute to [Sauvage's] case is taking that benefit away." Channel, 67 Kan. App. 2d ___, 2026 WL 3030978, at *10. Unfortunately, the procedural posture of this case presents problems which were not present before the panel in Channel. Here, Sauvage opted not to reply to the State's minimal argument on the 2026 amendments to the jail credit statute. But the amended statute, by its clear language stating it applies to "all sentences" and "any case posture," must be considered. See K.S.A. 2026 Supp. 21-6615(d). Given the significant revisions to that statute and the explosion of caselaw since Sauvage's sentencing hearings, his failure to argue the effect of the 2026 amendments on appeal stymies our ability to decide the 11 issue. And, although Sauvage's claim is not particularly fact-intensive, the record is scant as it relates to jail credit and lacks almost any details about the proceedings in Case 1; for instance, whether a "hold" was placed on Sauvage for Case 2 while he served his sentence in Case 1. See, e.g., State v. Thompson, 66 Kan. App. 2d 223, 229-30, 579 P.3d 511 (2025) (finding the defendant was not entitled to jail credit for time he spent, after his convictions but prior to sentencing, incarcerated in another state following his arrest in that state on a separate charge), rev. granted 321 Kan. 794 (2026); State v. Capps, No. 126,906, 2026 WL 412584, at *3 (Kan. App. 2026) (unpublished opinion) (finding a defendant is not entitled to jail credit in a case when the defendant is released on bond in that case, but is incarcerated on an unrelated matter); see also State v. Robinson, No. 127,629, 2025 WL 3048957, at *3 (Kan. App. 2025) (unpublished opinion) (remanding and directing the district court to make factual findings addressing the time Robinson was being held on a federal sentence, in the Leavenworth County jail, and in Larned State Hospital pending the disposition of charges in that case and to calculate jail credit accordingly), rev. granted 321 Kan. 794 (2026). As a result, we do not decide Sauvage's jail credit challenge on appeal. Instead, we vacate the district court's jail credit determination and remand this matter to the district court for reconsideration of the jail time credit due to Sauvage under the recent amendments to K.S.A. 21-6615(d) and appellate caselaw, including Channel. Sentence vacated in part, and case remanded with directions. 12