DAVID EARL BRYANT v. COMMONWEALTH OF KENTUCKY
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RENDERED: March 26, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-001418-MR
DAVID EARL BRYANT
APPELLANT
APPEAL FROM TODD CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 00-CR-00038
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, VACATING AND REMANDING IN PART
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI, AND McANULTY, JUDGES.
McANULTY, JUDGE.
David Earl Bryant (Bryant) appeals the Todd
Circuit Court’s denial of jail credit for time that Bryant
served on a charge that was ultimately dismissed and on the
underlying charge prior to entering a plea of guilty; and
further, that the Court erred by raising Defendant’s bond on the
underlying charge without proper notice.
Because we believe the
trial court improperly denied Bryant credit for time he served
in custody prior to the commencement of his sentence, we vacate
and remand in part.
Further, we affirm the conviction as it
pertains to the issue of bail.
On December 17, 1999, officers of the Pennyrile
Narcotics Task Force arrested Bryant after he ran from the
officers when they attempted to serve a bench warrant on him.
Eventually, the officers were able to catch Bryant and place him
under arrest.
After apprehending Bryant, the officers conducted
a search and located marijuana and methamphetamine in the pocket
of Bryant’s pants.
The officers also found a tube with residue
and burnt aluminum foil in Bryant’s jacket pocket along with
several 20-gauge shotgun shells.
Bryant’s arraignment was held on December 20, 1999,
and Bryant entered a plea of “not guilty.”
Bryant’s bail bond at $1,500 cash.
The trial court set
Bryant made bail on January
4, 2000, and he was released from custody on bond.
On May 1, 2000, the Todd County Grand Jury returned an
indictment charging Bryant with the following offenses stemming
from the arrest on December 17, 1999:
(1) first-degree
possession of a controlled substance -- firearm enhancement; (2)
possession of marijuana -- firearm enhancement; (3) possession
of drug paraphernalia -- firearm enhancement; (4) possession of
a firearm by convicted felon; and (5) being a persistent felony
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offender in the second degree.
Apparently, Bryant remained out
of custody on bond.
On December 12, 2000, Bryant was arrested on different
charges resulting from his actions on October 27, 2000.
The
charges were first-degree manufacturing methamphetamine and
being a second-degree persistent felony offender.
On January
10, 2001, the trial court ruled that KRS 218A.1432, the
manufacturing methamphetamine statute, was unconstitutional.
Subsequently, the trial court dismissed the manufacturing and
PFO charges against Bryant.
However, Bryant remained in jail
because after the trial court dismissed these charges, it raised
the bond on the initial charges of May 1, 2000, from $1,500 cash
to $15,000 cash.
On March 24, 2001, Bryant entered a guilty plea to the
single count of possession of methamphetamine (no firearm
enhancement) from the initial indictment of May 1, 2000.
In the
Final Judgment Sentence of Imprisonment issued May 16, 2001,
(final judgment) and entered May 30, 2001, the trial court
sentenced Bryant to five years imprisonment.
In the final
judgment, the trial court specified that Bryant was to be
credited with twenty-one (21) days spent in custody prior to the
commencement of his sentence toward the maximum term of
imprisonment.
Bryant appeals from the trial court’s
determination of this credit.
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Bryant argues that he is entitled to a credit of 202
days for time that he spent in jail on the manufacturing
methamphetamine charge that was ultimately dismissed.
Notwithstanding the fact that Bryant did not properly preserve
his argument for our review because he raises a different
argument on appeal than he did at the trial court level, we will
consider the issue on the merits as we determine that manifest
injustice has resulted from errors in calculating Bryant’s jail
credit.
See RCr 10.26.
Our task in considering this matter is
further complicated by the fact that, in his brief, Bryant does
not specify the time period that comprises the 202 days for
which he is entitled to jail credit.
We agree that Bryant was
entitled to jail credit in excess of the 21 days given by the
trial court in its final judgment, however, we do not agree that
Bryant is entitled to credit for 202 days.
Our review of the
record reveals that Bryant was in custody on the manufacturing
charge that was ultimately dismissed from December 5, 2000, to
January 10, 2001, for a total of 37 days.
After the trial court
dismissed the manufacturing charges, Bryant remained in custody
on the initial charges because he could not make bail after the
trial court increased his bond to $15,000 cash.
Prior to final
sentencing on the initial charges, Bryant remained in custody
from January 10, 2001, to May 16, 2001, for a total of 127 days.
KRS 532.120(3) states:
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Time spent in custody 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 the sentence shall be considered for all
purposes as time served in prison.
Accordingly, under KRS 532.120(3) Bryant shall be credited for
the time he spent in custody on the possession charge prior to
the commencement of his five-year sentence.
However, Bryant
shall not receive credit on his five-year sentence for time he
spent in custody on the manufacturing methamphetamine charge
that was ultimately dismissed (37 days by our calculation).
In
this case, Bryant was out of custody on bond when he was
arrested on a new set of charges, therefore, he does not fall
under the provisions of KRS 532.120(4), and we decline to extend
the application of KRS 532.120(4) to encompass the circumstances
of this case.
In summary, we vacate so much of the trial court’s
final judgment as it pertains to the calculation of Bryant’s
jail credit and remand this case for the purpose of determining
the number of days that Bryant spent in custody on the
possession charges prior to the commencement of his sentence
(Case Number 00-CR-00038).
We are unable to calculate the jail
credit because there are no records from probation and parole
included in the record on appeal.
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While we have attempted to
make that calculation in the preceding paragraphs, we do not
believe we have all the information necessary to finally
determine the matter.
In this appeal, Bryant further argues that the trial
court erred when it failed to give Bryant notice and a hearing
when it increased Bryant’s bond on the initial charges from
$1,500 cash to $15,000 cash.
At the conclusion of the hearing
on January 10, 2001, during which the trial court dismissed the
manufacturing charges against Bryant, the trial court raised the
bond on the initial charges to $15,000 cash.
In so doing, the
trial court reasoned that although it was dismissing the
charges, it recognized that Bryant was “running around with a
bunch of stuff that can be used to make methamphetamine.”
Bryant contends this action was in contravention of RCr 4.42,
which specifies the procedure the trial court must follow in
changing the conditions of a defendant’s release on bail.
Bryant concludes that the trial court committed reversible error
by increasing Bryant’s bond without adhering to the due process
procedures set forth in RCr 4.42 and without a material change
in circumstances.
While Bryant did argue against the bond increase at
the conclusion of the January 10, 2001, hearing, Bryant did not
adhere to RCr 4.43 in seeking appellate review of the action of
the trial court respecting bail.
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Moreover, Bryant ultimately
entered a voluntary guilty plea, thereby constituting a break in
the chain of events.
See Centers v. Commonwealth, Ky. App., 799
S.W.2d 51, 55 (1990).
Because Bryant entered a guilty plea, he
is prohibited from raising independent claims related to the
deprivation of constitutional rights occurring before entry of
the guilty plea.
See id.
For the foregoing reasons, the order of judgment as it
pertains to jail credit is vacated and this matter is remanded
for proceedings consistent with this opinion.
Moreover, the
issue of the change of conditions of bail is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa Clare
Frankfort, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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