Full Opinion

No. 128,787 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. JOSEPH JONATHAN BARRAGER, Appellant. SYLLABUS BY THE COURT 1. Criminal statutes and penalties in effect at the time of a criminal act are controlling. 2. In a direct appeal, a defendant will receive the benefit of any change in the law that occurs while the direct appeal is pending. 3. The Ex Post Facto Clause of the United States Constitution forbids legislative enactments that impose a punishment for an act that was either not punishable when it was committed or that impose additional punishments to those then prescribed. 4. A law is ex post facto if two critical elements are present: (1) The law is retrospective, and (2) the law disadvantages the offender affected by it. 1 Appeal from Montgomery District Court; JEFFREY GETTLER, judge. Oral argument held July 27, 2026. Opinion filed September 18, 2026. Vacated and remanded with directions. Sam Schirer, of Capital Appeals and Conflicts Office, for appellant. Ethan C. Zipf-Sigler, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee. Before BOLTON FLEMING, P.J., HILL and GARDNER, JJ. HILL, J.: Due process takes time, especially if there are criminal charges pending in different counties. Offenders often spend months behind county jail bars before they are brought to justice and receive their sentences. One thing is true: Incarceration is incarceration. The bars of a county jail are just as cold, comfortless, and confining as the bars of a Kansas prison. Recognizing this truth, the Kansas Legislature enacted K.S.A. 21-6615 directing that defendants must receive credit on their felony sentences for their time spent behind bars awaiting the disposition of their charges. This is an appeal about jail-time credit. We must decide whether Joseph Jonathan Barrager is entitled to 138 days of jail credit on his 30-month prison sentence for possessing methamphetamine. After H.B. 2444 took effect on July 1, 2026, we ordered supplemental briefing on what effect, if any, the enactment of that law has on Barrager's jail-credit claim. The State argues that Barrager cannot receive such credit because it is duplicative credit and the amendments found in 2026 H.B. 2444 revising K.S.A. 21-6615 prevent such an award. Barrager contends this law should not be enforced in his case. He argues that the retroactive barring of this award, even though it is duplicative, is an ex post facto application of the law that is prohibited by the United States Constitution. 2 A drug possession charge leads to a new conviction and probation revocation. Charged with three drug crimes committed on March 6, 2024, Barrager pled no contest to one count of possession of methamphetamine, in exchange for the State's dismissal of the two remaining charges. At the same time, Barrager stipulated to probation violations in two separate cases. Barrager spent 138 days incarcerated in jail awaiting disposition of this case. The court sentenced Barrager on July 14, 2024, to 30 months in prison for this crime. The sentencing court stated that Barrager would receive credit for time served but noted that the court expected the jail credit would go to Barrager's sentences in the probation violation cases first. In Barrager's two pending probation cases, the sentencing court revoked his probation and imposed the prison sanctions in both. The court then ordered consecutive sentences for the two probation revocation cases and then directed that the sentence in this case is to be served consecutive to those two. The court gave jail credit to Barrager on the prison sentences for the two probation revocation cases but not here. This is Barrager's direct appeal. His notice of appeal was filed December 3, 2024. He seeks 138 days' jail credit. The jail credit saga in Kansas begins with Supreme Court opinions and ends with a statutory fix. For over 40 years, Kansas courts interpreted K.S.A. 21-6615(a) to mean that defendants only received jail credit for time spent in custody "solely" on the charge being sentenced. Campbell v. State, 223 Kan. 528, Syl. ¶ 1, 575 P.2d 524 (1978). This interpretation led to some offenders being given no jail credit when held in jail on 3 multiple cases. See State v. Hopkins, 317 Kan. 652, 655-58, 537 P.3d 845 (2023). But that interpretation also gave the statute a common meaning that offenders did not receive duplicate jail credit when in jail on multiple cases. In Hopkins, decided on October 20, 2023, the Supreme Court departed from the interpretation of K.S.A. 21-6615(a) which allowed no jail credit when offenders were in jail on multiple charges. The jail credit issue arose during Hopkins' sentencing for first- degree murder. While in jail pending disposition of the murder charges, Hopkins was also in jail on other pending cases. Those other cases were dismissed after Hopkins pled guilty to two counts of premeditated first-degree murder. The court ordered Hopkins' murder sentences to run concurrent. But the sentencing court refused to give Hopkins jail credit because, while he was in custody for the murder case, he was also in custody on some other cases. For the first time, our Supreme Court held that, under the plain language of the statute, a defendant gets credit for all time spent in custody pending disposition of the defendant's case, regardless of whether the defendant had other cases pending. 317 Kan. at 656-59. Hopkins did not address how the statute applied when the defendant was given consecutive prison sentences in separate cases. Perhaps foreseeing that Hopkins could be read more broadly, effective May 23, 2024, the Legislature preemptively amended K.S.A. 21-6615(a). L. 2024, ch. 96, § 7. After the amendments the statute read: "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." K.S.A. 2024 Supp. 21-6615(a)(2)(A). Despite that 2024 enactment, our Supreme Court followed up and expressly held that, under the pre-2024 statute, defendants can get duplicate jail credit. State v. Ervin, 4 320 Kan. 287, Syl. ¶ 12, 566 P.3d 481 (2025). The court made manifest what was implied by the ruling in Hopkins. In Ervin, decided on April 11, 2025, interpreting the pre-2024 statute, the court held a defendant gets one day of credit for each day incarcerated pending disposition of the defendant's case regardless of whether the defendant received a credit for some or all of that time against a sentence in another case. 320 Kan. at 311-12. After Ervin, the Legislature stepped in again. With the enactment of HB 2444, effective July 1, 2026, the Legislature clarified the statute again; it bars duplicate jail credit. K.S.A. 2026 Supp. 21-6615(d)(1) reads, in relevant part: "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." This law is retroactive. It applies to "[a]ll sentences, whether pronounced before, on or after July 1, 2026," and applies to "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 . . . pending on or filed after July 1, 2026." K.S.A. 2026 Supp. 21-6615(d)(2)(A)-(B). Barrager contends that this retroactivity provision is an ex post facto law and is thus unconstitutional when it is applied to his case. Ex post facto violations occur when laws retroactively inflict greater punishment than what was allowed under the law when the crime was committed. We begin with a fundamental rule that applies here. "Criminal statutes and penalties in effect at the time of the criminal act are controlling." State v. Rice, 308 Kan. 1510, 1512, 430 P.3d 430 (2018). But laws are always changing, and we must often decide if new enactments apply to old facts. That leads to a second fundamental rule: the ban on ex post facto laws. 5 The Ex Post Facto Clause of the United States Constitution forbids legislative enactments that impose a punishment for an act that was not punishable when it was committed or that impose additional punishments to those then prescribed. See U.S. Const. art. I, §§ 9, 10; State v. Davidson, 314 Kan. 88, 90, 495 P.3d 9 (2021). A law is ex post facto if two critical elements are present: (1) The law is retrospective, and (2) the law disadvantages the offender affected by it. State v. Meredith, 306 Kan. 906, 910, 399 P.3d 859 (2017). A good time credits case offers an example of an unconstitutional ex post facto law. In Stansbury v. Hannigan, 265 Kan. 404, Syl. ¶ 3, 960 P.2d 227 (1998), the Supreme Court held that a change in a statute which had the effect of reducing the good time credits a defendant would receive violated the Ex Post Facto Clause. 265 Kan. at 417. The court reasoned that, because the new law affected the defendant's parole eligibility and an earlier release date, the law constituted an ex post facto application of law. 265 Kan. at 417. In its reasoning, the court cited Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981), in which the United States Supreme Court similarly held that a new law which resulted in a reduction in "'gain-time credits'" violated the Ex Post Facto Clause by altering the defendant's prison term retroactively. Stansbury, 265 Kan. at 413-14; see also Lynce v. Mathis, 519 U.S. 433, 445-47, 117 S. Ct. 891, 137 L. Ed. 2d 63 (1997) (holding state legislature's new law was an ex post facto violation because the law retroactively limited a defendant's ability to earn "overcrowding credits" after the commission of a crime). Is Barrager entitled to additional jail time credit? Dates are important here. Barrager committed this crime on March 6, 2024. This was after the Hopkins opinion was filed on October 20, 2023, and before the 2024 amendments to K.S.A. 21-6615 became effective on May 23, 2024. The 2024 amendments do not apply. Hopkins controls the jail credit question in this case and not 6 the old rule from Campbell. Hopkins held that a defendant is entitled to get credit for all time spent in custody, and that is the law controlling Barrager's case. But we must go further. This direct appeal commenced December 3, 2024, and was pending when the Ervin ruling disregarding the ban against duplicative jail credits became the controlling rule. 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. Dawson, 310 Kan. 112, Syl. ¶ 1, 444 P.3d 914 (2019). This is Barrager's direct appeal. This means that when we apply the Hopkins/Ervin rules to Barrager's case, he is entitled to 138 more days of jail credit on his sentence. What is the effect of HB 2444 to this holding? The retroactive provision of this law takes away the jail credit that Barrager was entitled to under the Hopkins/Ervin rules. This law fits the definition of an ex post facto law found in Meredith. To deny Barrager this credit is an ex post facto unconstitutional application and must be denied. We reject the State's argument that jail credit is neither part of a defendant's sentence nor is it "punishment" for purposes of an ex post facto law application. As we stated earlier, the truth is: incarceration is incarceration. The State's attempts to characterize jail credit as merely a calculation for determining the date from which a sentence runs fails to appreciate the practical effects of jail credit calculations. Logically, any amount defendants are awarded in jail time credit reduces the days which they serve on their sentence. For example, in Barrager's case, he was sentenced to 30 months in prison, or about 900 days. Awarding Barrager the 138 days as credit for the time he spent incarcerated while his case was pending would reduce his 900-day sentence to 762 days, or around 25.5 months. 7 Said another way, applying the retroactivity provision in K.S.A. 2026 Supp. 21- 6615(d) has the effect of increasing Barrager's sentence by four and a half months. Thus, the retroactivity provision inflicts a greater punishment for Barrager than what the previous law would have imposed. That is an ex post facto violation. In conclusion, we hold that the 2024 amendments to K.S.A. 21-6615(a) do not apply because they became effective after Barrager committed this crime. We also hold that the law in effect when Barrager committed his crime was the Hopkins ruling. His direct appeal was pending when the Ervin ruling became effective, and thus he was entitled under those decisions to additional jail credits on his sentence. Barrager is disadvantaged by the application of the retroactivity provision in K.S.A. 2026 Supp. 21- 6615(d) to his sentence, and we find that provision is unenforceable here as an ex post facto law. We vacate the district court's denial of jail credits and remand with directions to award Barrager 138 more days of jail credit toward his sentence. Vacated and remanded with directions. 8