King v. Wyrick

Decision Date21 May 1975
Docket NumberNo. 75-1020,75-1020
Citation516 F.2d 321
PartiesMichael R. KING, Petitioner-Appellant, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent-Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

John S. Sandberg, St. Louis, Mo., for appellant.

William F. Arnet, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before MATTHES, Senior Circuit Judge, ROSS and WEBSTER, Circuit Judges.

MATTHES, Senior Circuit Judge.

We are required to determine on this appeal by petitioner Michael R. King, a state prisoner, the extent to which he is entitled to receive jail time credit on two concurrent prison sentences. Specifically, petitioner seeks credit on concurrent second degree murder and burglary sentences for the 403 days he spent in jail awaiting disposition of the charges which led to his conviction for the murder and the burglary. The district court granted a 403 day credit on the 10-year burglary sentence, but denied credit on the murder sentence of 12 years.

A summary of the relevant facts follows.

On December 22, 1967, petitioner was arrested and incarcerated on a first degree murder indictment filed July 6, 1967. On January 19, 1968, while still in custody on the murder charge, petitioner was charged by information with second degree burglary. Bail on the two charges was set on January 27, 1968, at $8,000. Petitioner was unable to furnish bail because of indigency.

On January 27, 1969, the State agreed to reduce the homicide charge against the petitioner to second degree murder. Petitioner then withdrew his previous plea of not guilty on the first degree murder charge and pleaded guilty to second degree murder. He was sentenced that day to 12 years imprisonment on the murder conviction, although he could have been sentenced to as long as life imprisonment. At the same time petitioner changed his plea to guilty on the second degree burglary charge and was sentenced to the statutory maximum of 10 years, to run concurrently with the sentence of 12 years imposed for the murder conviction. The state circuit judge who sentenced petitioner observed at the time of sentencing:

THE COURT: All right, Mr. King, in accordance with your plea of guilty to burglary second degree, the Court will sentence you to ten years in the Department of Correction, at Jefferson City, Missouri, to remain there until you have fully served your time, or discharged by due process of law; this will run concurrently, however, with the sentence in Cause No. 1147-P. You understand there will be no jail time allowed?

MR. KING: Yes, sir.

THE COURT: I think you are getting off very easy the way it is.

At the time petitioner was sentenced, the granting of jail time credit on a prison term, i. e., credit toward one's prison sentence for the time spent in jail pending trial and sentencing, was a matter for the discretion of the state sentencing court. But the state statute allowing such discretion was amended in 1971 to make the granting of jail time credit mandatory. See Mo.Rev.Stat. § 546.615 (Supp.1971), amending § 546.615 (1969), V.A.M.S. Petitioner in 1972 petitioned the Circuit Court of St. Louis pursuant to Mo.Sup.Ct.R. 27.26, V.A.M.R., for a credit of 403 days (the time spent in jail between his arrest and his sentencing) on his concurrent sentences. Petitioner contended that the 1971 legislation requiring that jail time credit be given should be applied retroactively to his sentencing in 1969. Petitioner also urged that the failure to grant him jail credit was a denial of equal protection, since he had had to serve time in connection with the charges against him which a wealthier man could have avoided by posting bail bond. In denying the petitioner 27.26 relief the state circuit court found that the sentencing judge had not granted petitioner any credit for jail time; 1 held that under the then existing statute the granting of jail time credit was within the discretion of the sentencing judge; and further held that the subsequently amended statute making credit mandatory was not retroactive. The court also rejected petitioner's claim that credit for jail time was constitutionally mandated. The Missouri Court of Appeals affirmed. King v. State, 510 S.W.2d 747 (Mo.App.1974).

Subsequently petitioner instituted this habeas corpus action in federal district court on July 25, 1974. 2 On December 6, 1974, a report by United States Magistrate William Bahn on petitioner's habeas corpus petition was filed in the district court. In his report Magistrate Bahn recommended that petitioner be granted jail time credit on the burglary sentence, since not to grant credit would mean that petitioner actually would be incarcerated for more than 11 years in connection with the burglary charge, even though the maximum allowable sentence was 10 years, solely because he had been unable to meet bail in 1968. Magistrate Bahn recommended, however, that no credit be granted on the concurrent second degree murder sentence, since it was within the range of punishment allowed by statute and less than the maximum of life imprisonment. On the same day District Judge Wangelin filed an order adopting the recommendations of Magistrate Bahn to grant credit on the burglary sentence but not on the murder sentence. This appeal followed.

Of course, the decision of the district court has gained petitioner nothing: although he received credit on the burglary sentence, he would not be released any sooner as a result of the district court decision, since he is also incarcerated on the longer concurrent 12-year sentence, for which no credit was given. On this appeal petitioner urges that the district court erred in failing to grant him credit on the 12-year sentence as well. We agree.

Since Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), many federal courts have come to recognize that failure to grant credit on an indigent prisoner's sentence for time spent in jail before sentencing for failure to meet bail due to indigency has constitutional implications. Several courts have held that it is a denial of equal protection not to grant an indigent prisoner credit for jail time served after he has been unable to meet bail due to indigency when his sentence plus the previous jail time adds up to a total period of incarceration longer than the maximum allowable term prescribed by law for the offense committed. See, e. g., Parker v. Estelle, 498 F.2d 625 (5th Cir. 1974); Hook v. State of Arizona, 496 F.2d 1172 (9th Cir. 1974); Hill v. Wainwright, 465 F.2d 414 (5th Cir. 1972); Hart v. Henderson, 449 F.2d 183 (5th Cir. 1971). See also Reanier v. Smith, 83 Wash.2d 342, 517 P.2d 949 (1974) (credit on statutory maximum and minimum sentences); In re Young, 32 Cal.App.3d 68, 107 Cal.Rptr. 915 (1973) (credit on statutory minimum sentence). This result follows from the holding in Williams v. Illinois, supra, 399 U.S. at 244, 90 S.Ct. at 2023, that "the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status." It was pursuant to this equal protection rationale that the Magistrate recommended that petitioner be granted credit on the maximum 10-year sentence for burglary.

It is obvious, however, that equal protection considerations obtain as well in the case of an indigent prisoner who is denied jail time credit on a prison term less than the allowable maximum prescribed by statute. He still must serve a longer term in connection with the offense than would a wealthier prisoner who is sentenced to the same term but who is able to meet bail to avoid incarceration before trial and sentencing. See generally Schornhorst, Presentence Confinement and the Constitution: The Burial of Dead Time, 23 Hastings L.J. 1041, 1056 et seq. (1972); Note, Sentence Crediting for the State Criminal Defendant A Constitutional Requirement, 34 Ohio St.L.J. 586, 587-588 (1973); cf. Morris v. Schoonfield, 399 U.S. 508, 509, 90 S.Ct. 2332, 26 L.Ed.2d 773 (1970) (White, J., concurring). See also Williams v. Missouri Department of Corrections, 463 F.2d 993, 995 (8th Cir. 1972). 3 Thus several district courts have resolved jail time credit cases on equal protection grounds without limiting the implications of the constitutional analysis to circumstances in which the total length of incarceration exceeds the maximum term allowed by law. See Mohr v. Jordan, 370 F.Supp. 1149 (D.Md.1974); White v. Gilligan, 351 F.Supp. 1012 (S.D.Ohio 1972) (3-judge court); Workman v. Cardwell, 338 F.Supp. 893 (N.D.Ohio), vacated in part as mooted, 471 F.2d 909 (6th Cir. 1972). See also Monsour v. Gray, 375 F.Supp. 786 (E.D.Wis.1973); Anglin v. State, 525 P.2d 34 (Nev.1974).

Nevertheless, the State contends that petitioner is not entitled to jail time credit on the 12-year murder sentence. The State refers us to Stapf v. United States, 125 U.S.App.D.C. 100, 367 F.2d 326 (1966), a decision which in the course of construing certain amendments to the federal jail time credit statute, 18 U.S.C. § 3568, first employed the principle that, "wherever it is possible, as a matter of mechanical calculation, that credit could have been given, we will conclusively presume it was given." 367 F.2d at 330. Of course, if a prisoner has been sentenced to a maximum term, it is impossible to say that credit was given by the sentencing judge. But if a prisoner, such as petitioner, has been sentenced to a term less than the allowable maximum, it is possible that at least one reason why the sentencing judge gave less than the maximum sentence was to allow...

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    ...even though he did not receive the maximum sentence. See, e.g., Faye v. Gray, 541 F.2d 665, 668-69 (7th Cir.1976); King v. Wyrick, 516 F.2d 321, 323-25 (8th Cir.1975). The Fifth Circuit, however, has explicitly declined to extend the reach of the Williams holding to defendants who have not ......
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