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Kentucky DOC May Not Alter Presentencing Custody Credits

The Kentucky Supreme Court has held that the Department of Corrections (DOC) lacks authority to modify a prisoner’s presentencing custody credit calculation.

In 1993, Peter Bard was charged with murdering a deputy sheriff, but the charges were dismissed without prejudice when he was found incompetent to stand trial. He was involuntarily institutionalized for a total of 1,637 days.

After Bard was re-indicted in 2000, a jury found him guilty but mentally ill on a first-degree manslaughter charge.

On August 8, 2002, the trial court imposed the 20-year sentence that had been recommended by the jury. The court also granted credit for 3,086 days of presentencing custody credit – including the 1,637 days that Bard had been hospitalized.

Bard’s sentence expired approximately six years later. Rather than release him, however, the DOC transferred him to a mental hospital for involuntary commitment under a new mental inquest warrant.

Several days later DOC officials claimed that Bard had been credited with too much presentencing custody credit and should not have been released. A warrant was issued for Bard’s return to prison due to “inadvertent release,” and he was transferred back to the DOC.

An amended time credit computation was then submitted to the sentencing court, reducing Bard’s presentencing custody credit from 3,086 days to 1,449 days. The trial court signed the amended computation and the DOC amended its records, crediting Bard with only 1,449 days of presentencing custody credit.

The trial court denied Bard’s motion for an investigation into the reasons for his reincarceration. He then filed the equivalent of a motion for habeas corpus, which the court denied upon finding that Bard had failed to prove that the judgment against him had been satisfied. The Court of Appeals affirmed, and the Kentucky Supreme Court granted review and reversed.

The Supreme Court held that under the plain language of KRS 532.120(3), “it is clear that the responsibility to credit a defendant for presentencing jail time belonged exclusively to the trial court.... No statutory authority or case law granted [the DOC] the power to set or modify presentencing custody credit.

“Because the duty to award presentencing custody credit was vested in the trial court,” the Supreme Court held that the DOC “was not authorized to modify [Bard’s] credit in any way. Its attempt to do so was an invalid usurpation of the power expressly granted to the trial court by KRS 532.120(3).” As such, Bard “remains entitled to the 3,086 days of presentencing custody credit awarded by the trial court.”

The Supreme Court also held that the trial court lacked jurisdiction to amend Bard’s presentencing custody credit six years after he had been sentenced. Although the Supreme Court’s ruling was issued in October 2011, it was modified on March 16, 2012 and corrected on May 15, 2012. Chief Justice John D. Minton, Jr. dissented. See: Bard v. Commonwealth of Kentucky, 359 S.W.3d 1 (Ky. 2011).

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Related legal case

Bard v. Commonwealth of Kentucky