State v. Davenport

• Decision Date: 26 July 1996
• Docket Number: No. 74994,74994
• Parties: STATE of Kansas, Appellee, v. Michael L. DAVENPORT, Appellant.
• Court: Kansas Court of Appeals

Page 475

920 P.2d 475

22 Kan.App.2d 683

STATE of Kansas, Appellee, v. Michael L. DAVENPORT, Appellant.

No. 74994.

Court of Appeals of Kansas.

July 26, 1996.

Review Denied Sept. 25, 1996.

Syllabus by the Court

1. Courts possess the inherent power to punish for contempt of court.

2. Jail time credit is permitted only for time a defendant is held in custody on those charges for which the sentence is imposed.

3. Contempt of court may be a coercive remedy, the sole purpose of which is to compel

a party to provide information pursuant to a court order.

4. A prison sentence may be interrupted as a result of imposition of a contempt penalty.

5. A defendant will not receive credit on an original sentence for any time served on a contempt citation.

J. Richard Lake, Holton, for appellant.

E. Bernard Hurd and Michelle V. Hostetler, Assistant District Attorneys, Joan M. Hamilton, District Attorney, and Carla J. Stovall, Attorney General, for appellee.

Before KNUDSON, P.J., and GERNON and ROYSE, JJ.

GERNON, Judge:

Michael L. Davenport appeals the district court's refusal to allow jail time credit on his previously imposed sentence for time spent imprisoned for civil contempt.

Davenport was originally charged with first-degree murder and aggravated robbery. As part of a plea bargain, he pled guilty to second-degree murder and received a sentence mandated by the Kansas Sentencing Guidelines Act of 68 months in the custody of the Secretary of Corrections.

A material component of the plea bargain was Davenport's agreement to testify at other hearings or trials concerning the events and participants surrounding the murder.

Davenport was requested to testify at the preliminary hearing of Devonshay Bregettcy on November 23, 1994. He refused to testify and tried to invoke his Fifth Amendment protections, despite the fact that he had already been sentenced pursuant to the plea bargain. He also asked to have counsel appointed. The hearing was continued.

On January 18, 1995, the hearing was reconvened, and Davenport, while not asserting his Fifth Amendment rights, still refused to testify. A district court judge ordered Davenport to testify and, when he still refused, found him in direct contempt and ordered him imprisoned until such time as he agreed to testify or died, whichever came first.

The sole question on appeal is whether Davenport should receive credit on his original sentence for any time served on the contempt citation. We conclude he should not and affirm.

K.S.A. 20-1203 authorizes a district court to find persons in direct contempt of court. This authority is not only found in statute but has deep historic roots.

" 'Independent of authority granted by statute, courts of record of superior jurisdiction [district courts in Kansas], whether civil or criminal, possess inherent power to punish for contempt of court. Such power is essential to the due administration of justice, and the legislature can not take it away or abridge it, although it may regulate its use. Statutes conferring the power are simply declaratory of the common law.' " State v. Marshall, 95 Kan. 628, 148 P. 675 (1915) (quoting 9 Cyc. 26).

Our standard of review for an order of contempt is whether the trial court abused its discretion. State v. Williams, 20 Kan.App.2d 185, 187, 884 P.2d 755 (1994).

Here, Davenport does not suggest that he is not in contempt but simply contends that he should be given credit on his original sentence for the contempt sentence.

Jail time credit is permitted only for the time a defendant is held in custody on those charges for which the sentence was imposed. See Campbell v. State, 223 Kan. 528, 530-31, 575 P.2d 524 (1978); State v. Thorn, 1 Kan.App.2d 460, 461-62, 570 P.2d 1100 (1977).

Several federal and state courts have addressed this very argument and have upheld the interruption of sentences to impose civil contempt penalties. See, e.g., In re Garmon, 572 F.2d 1373, 1374-76 (9th Cir.1978) (recognizing the circuits which have addressed this issue and noting "that there exists no common law rule against the interruption of a prison sentence as a result of the imposition of a contempt penalty"); United States v. Mitchell, 556 F.2d 371, 382-85 (6th Cir.), cert. denied 434 U.S. 925, 98 S.Ct. 406, 54 L.Ed.2d 284 (1977); Anglin v. Johnston 504 F.2d 1165, 1167-69 (7th Cir.1974), cert. denied 420 U.S. 962, 95 S.Ct. 1353, 43 L.Ed.2d 440 (1975); Ramos v. U.S., 569 A.2d 158, 161 (D.C.1990) (citing cases)...