State v. Hopkins

537 P.3d 845

STATE of Kansas, Appellee,

v.Mark HOPKINS II, Appellant.

No. 124,851

Supreme Court of Kansas.

Submitted Without Oral Argument February 3, 2023.

Opinion Filed October 20, 2023.

Debra J. Wilson, of Capital Appeals and Conflicts Office, was on the briefs for appellant.

Natalie Chalmers, assistant solicitor general, Derek Schmidt, former attorney general, and Kris W. Kobach, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by Stegall, J.:

Mark Hopkins II was sentenced to life imprisonment without the possibility of parole for 50 years after being convicted of murdering two people in 2020. He spent 572 days in jail awaiting sentencing. At sentencing, the district court denied Hopkins credit against his sentence for the time spent in jail based on this court's precedent which has, until now, required the sentencing judge to only award a defendant credit for time spent in custody "solely" on the charge for which he or she is being sentenced. See, e.g., State v. Smith, 309 Kan. 977, 981, 441 P.3d 1041 (2019) ; State v. Harper, 275 Kan. 888, 890, 69 P.3d 1105 (2003) ; Campbell v. State, 223 Kan. 528, 528-31, 575 P.2d 524 (1978). Because history demonstrates confusion, difficulty, and inconsistency in the application of this court-made rule over the last 45 years, we have no difficulty revisiting and revising this rule to reflect the plain language of the statute. As such, today we hold that the award of credit under K.S.A. 2022 Supp. 21-6615(a) is not limited to time spent "solely" in custody for the charge for which the defendant is being sentenced.

FACTS

In June 2020, Hopkins and a codefendant met up with two individuals in rural Cherokee County, Kansas. The two victims believed they were meeting to obtain methamphetamine from Hopkins; however, Hopkins thought the victims were acting as law enforcement informants against him. So, Hopkins decided to kill the two. He zip-tied a flashlight to the barrel of his 9 mm rifle and shot each of them in the head. Hopkins and the codefendant left the scene in separate vehicles, and Hopkins fled to Oklahoma. Oklahoma law enforcement apprehended Hopkins after locating him asleep in his car. Hopkins eventually confessed to committing the murders.

Hopkins waived extradition, was served with the arrest warrant, and was then held without bond in the Cherokee County Jail. While he was in jail, the State filed a motion to revoke probation in a prior theft case from 2018. This motion remained pending until its eventual dismissal as part of a plea agreement in the murder case.

In May 2021, Hopkins escaped from the Cherokee County Jail. He remained at large for four days before being captured. Upon his return to jail, the State filed two new charges against Hopkins relating to the escape from custody.

In November 2021, Hopkins entered a plea bargain with the State. Hopkins agreed to plead guilty to two counts of premeditated first-degree murder and the State agreed to withdraw the pending Motion to Revoke Probation in the theft case; dismiss the escape charges in Cherokee County; and dismiss an additional pending Labette County case.

Before sentencing, Hopkins filed a motion for durational departure sentences, requesting that the court impose sentences of 25 to life. The motion was accompanied by information about Hopkins' background and a psychological evaluation. The motion contained lengthy descriptions of Hopkins' troubled, dysfunctional, and abusive childhood, his abuse of a dizzying array of drugs and substances beginning at a young age, and his struggles with ADHD and other developmental disorders.

In further support of that motion, Hopkins presented the testimony of Dr. Robert McCaffrey—a New York-based neuropsychologist—at sentencing in December 2021. Dr. McCaffrey did not evaluate or test Hopkins; he merely reviewed his records. Dr. McCaffrey testified that in his long experience he had never encountered an individual that has used the variety and the extent of substances Hopkins abused; noting that beginning substance abuse at an early age would disrupt normal neuropsychological cognitive functions. Of particular concern to Dr. McCaffrey was Hopkins' use of aerosols ("huffing"), testifying that adolescents who regularly abuse aerosols "are referred to as having swiss cheese brains" because it "is very, very toxic."

Based on Hopkins' history, Dr. McCaffrey opined that he could anticipate Hopkins' executive functioning being impaired. But Dr. McCaffrey also agreed that several of the red flags he observed in Hopkins' record—including the disordered family life and long-term substance abuse—were common in society, and made clear that he was "absolutely not" opining that Hopkins was incapable of premeditating murder.

The State then presented victim impact statements from family members, which included testimony about one of the victim's three children being left without their father.

The district court considered and denied Hopkins' departure motion, explaining:

"I cannot and I do not find substantial and compelling reasons which would justify a departure. While it's true that 18 months following the commission of two acts of premeditated murder Mr. Hopkins did accept responsibility and plead guilty and agreed to testify against his co-defendant. But that standing alone is not sufficient in my judgment for me to find substantial and compelling reasons to depart. It just doesn't meet the threshold. I agree that Mr. Hopkins' childhood and background has been tragic. I would state from my years of experience that common thread tends to run against most people who commit premeditated first degree murder. He has a sad criminal history. By my count he has 22 convictions during the past 13 years on 16 separate dates, 17 of them are misdemeanors, four are felonies, one is a person felony, aggravated battery in 2016. All but one occurred in this judicial district. I think it's a stretch for me to find that his desire to work to support his family and his desire to by his example be a deterrent to his younger family members is a—it's just based on speculation from where I see it. Furthermore I don't—I'm confused by Dr. McCaffrey's testimony. He said he's got a swiss cheese brain. I'm not sure I know what that means. I'm not a neuropsychologist. But these things he testified to—well, and his testimony was all speculative because he didn't examine Mr. Hopkins. He didn't do an evaluation. But he says that he's got red flags toward a negative outcome. And then he says those red flags still exist. His guardrails are gone. His guardrail, his final guardrail was his grandfather who died in 2014. He's still subject to impulsive behavior without any guardrail to restrain him. That tends to support that if given parole at an early age he may be subject to commission of another crime like this."

Though the State requested that the sentences run consecutive, the court sentenced Hopkins to the hard 50 on count 1 and sentenced count 2 to run concurrent, expressing a desire to give Hopkins a "degree of hope" that he could be released at 80 years old.

The parties then turned to discussing jail time credit. After the following exchange, the district court declined to grant Hopkins any credit:

"[THE STATE]: Your Honor, for purposes of the journal entry with regard to any credit we note that the defendant also had a pending other case and probation violation. I don't believe that our plea agreement contemplated any credit for time served.

"THE COURT: That was my understanding. Is that correct? My understanding he had cases pending in this county and in Labette County and he had a revocation somewhere.... I did not contemplate granting him credit for time served to date unless by law he's entitled to it.

"[DEFENSE COUNSEL]: I think for some of the time he's in custody he had two cases he was under. One was dismissed in November. Our hopes at that time—

"THE COURT: Well according to the PSI he was taken into custody on June 16th, 2020, and then apparently released May 24th, 2021.

"[THE STATE]: Oh, he wasn't released, Judge. He escaped.

"THE COURT: Oh, he escaped. Okay. So that's 358 days. Then taken into custody again May 28th, 2021 to date. 214 days.

"[DEFENSE COUNSEL]: We'd ask that time be applied to this case.

"THE COURT: Unless by law I must grant that I'm denying it.

"[THE STATE]: We don't believe that he is.

"THE COURT: I don't think so either. All right."

Hopkins filed a timely notice of appeal to this court.

DISCUSSION

Hopkins is entitled to jail time credit against his sentence.

Since 1978 we have held that the language in K.S.A. 2022 Supp. 21-6615(a) requires the sentencing judge to award a defendant credit for all time spent in custody "solely" on the charge for which the defendant is being sentenced while awaiting disposition of his or her case, and that a defendant is not entitled to credit for time " ‘which he has spent in jail upon other, distinct, and wholly unrelated charges.’ " Smith , 309 Kan. at 981, 441 P.3d 1041 ; Campbell , 223 Kan. 528, Syl. ¶ 2, 575 P.2d 524.

But the statute does not say that. Rather, K.S.A. 2022 Supp. 21-6615(a) provides:

"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."

It is not obvious that "the time which the defendant has spent incarcerated pending the disposition of the defendant's case" should be interpreted in any way other than straightforwardly giving jail time credit for every day the defendant...