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No. 35140 - State v. David Eilola
McHugh, Justice, concurring:
I agree with the holding of the majority opinion and concur only to address an
aspect of the application of credit for time served to multiple indeterminate consecutive
sentences that is necessary to a comprehensive understanding of the issue. As the majority
opinion states, for purposes of determining parole eligibility, it is appropriate to apply the
credit for prior time served to the aggregated minimum term of the multiple indeterminate
consecutive sentences. In calculating the entirety of the aggregate term to be served,
however, the ultimate result should be emphasized. In this case, the Appellant was entitled
to 495 days of prior time served. Thus, the effective sentencing date was determined to be
March 29, 2006, which is 495 days prior to the actual sentencing date of August 8, 2007. By
altering the sentencing date in such manner, the Court is effectively crediting the time served
against both the minimum aggregate sentence and the maximum aggregate sentence to
establish a new term of incarceration which accurately reflects the time period during which
the individual has already been incarcerated. This method does not provide double credit for
the prior time served; it simply adjusts the aggregate term to acknowledge the prior time
served. The duration of the aggregate sentence remains the same.
This result is consistent with jurisdictions which arrive at the same outcome,
through application of statute or otherwise, by crediting the prior incarceration time against
both the minimum and maximum sentence. See State v. Tauiliili, 29 P.3d 914, 917 (Hawaii
2001) (The statutory language read in the context of the entire statute requires that
presentence credit be applied to both the minimum and maximum imprisonment terms. In
computing the terms of imprisonment, the circuit court properly applied Tauiliili's
presentence credit by deducting 853 days from both the minimum and maximum terms of his
sentence. In its brief, the prosecution concedes that, pursuant to HRS § 706-671, credit for
time served must be applied against the minimum term, as well as the maximum term of
imprisonment.); Edwards v. Travis, 802 N.Y.S.2d 519, 520 (N.Y. A.D. 2005) (finding that
parole eligibility and maximum expiration dates were properly calculated by crediting the
694 days against both the minimum and maximum sentences . . . .); Abitbol v. State, 178
P.3d 415 (Wyo. 2008); Doolittle v. State, 154 P.3d 350 (Wyo. 2007).
The purpose of this computation is to attempt to place an in-custody criminal
defendant unable to afford bail in the same position as his counterpart who has the financial
means to post bail. Nissel v. Pearce, 764 P.2d 224 (Or. 1988).
Statutes giving credit for presentence time served were
designed to ensure equal treatment for indigent and non-indigent
defendants. An example will illustrate this point. Suppose that
codefendants A and B commit a felony together. While they are
awaiting trial, A, who has access to money, bails himself out of
jail. But B, who is indigent, is unable to post security and
spends 180 days in jail before conviction. Both receive a two
year prison term. If B is not credited for the 180 days spent in
presentence confinement, she will spend two years and 180 days
in custody while A will spend only two years so confined.
764 P.2d at 225-26 (footnote omitted). Similarly, in Dewees v. State, 444 N.E.2d 332 (Ind.
App.1983), the court explained that credit for presentence time served was premised upon
double jeopardy and equal protection guarantees. The end result is that a defendant,
because of time spent in jail awaiting trial, will not serve more time than the statutory penalty
for the offense, and will not serve more time than a defendant who has the good fortune to
have bail money. 444 N.E.2d at 334; see also Neb. Rev. St. § 83-1,106(1) (1988); Ohio
Adm. Code 5120-2-04(G) (2008).
Although the majority opinion does not explicitly state that the prior time
served is being credited against both the minimum and maximum aggregate terms in the
present case, that is the ultimate effect of shifting the period of potential incarceration by
establishing an effective sentencing date of 495 days prior to the actual sentencing date.