RENDERED: NOVEMBER 18, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1332-MR

DAVID SCOTT TATE APPELLANT 

v. 

APPEAL FROM MENIFEE CIRCUIT COURT

HONORABLE DAVID A. BARBER, JUDGE

ACTION NO. 17-CR-00003

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON, 

JUDGES.

THOMPSON, L., JUDGE: David Scott Tate appeals from an order of the Menifee 

Circuit Court which denied his motion for pretrial jail-time credit. We believe 

further proceedings are necessary; therefore, we reverse and remand.
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FACTS AND PROCEDURAL HISTORY

On February 23, 2017, Appellant was indicted on one count of 

operating a motor vehicle while under the influence of alcohol or other intoxicants1

and murder.2 The charges arose after he caused an accident while driving 

intoxicated. On March 9, 2017, Appellant was arraigned and released on bond. 

One of the conditions of the bond was that Appellant was placed on house arrest. 

He could only leave his house to attend doctor appointments, appointments with 

his lawyer, or court dates. One of the reasons Appellant was placed on house 

arrest was due to significant injuries he sustained in the car accident and the 

concern that local jails might have trouble accommodating such injuries.

On January 14, 2019, Appellant entered a guilty plea. Pursuant to a 

plea agreement, Appellant pleaded guilty to second-degree manslaughter.3 The 

driving under the influence charge was dismissed. As part of the plea agreement, 

Appellant agreed to give up any pretrial jail-time credit he received while on house 

arrest. In total, Appellant spent 735 days on house arrest. Appellant was then 

sentenced, pursuant to the agreement, to ten years in prison.

1 Kentucky Revised Statutes (KRS) 189A.010.

2 KRS 507.020.

3 KRS 507.040.
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Beginning in late 2020, Appellant began seeking pretrial custody 

credits from the Kentucky Department of Corrections and the Kentucky Justice and 

Public Safety Cabinet. He argued that the time he spent on pretrial house arrest 

entitled him to jail-time credit. These credit requests were denied.

On June 2, 2021, Appellant, through counsel, filed a motion with the 

Menifee Circuit Court seeking pretrial custody credits. The Commonwealth 

opposed the motion arguing that Appellant was not under a home incarceration 

program as contemplated by the relevant statutes because he was not wearing a 

GPS monitor.

4

 The Commonwealth also argued that Appellant was not entitled to 

jail-time credit because he waived said credits as part of his plea agreement. The 

trial court denied the motion, but did not give a reason for doing so. This appeal 

followed.

ANALYSIS

KRS 431.517(1) states that “home incarceration may be ordered as a 

form of pretrial release, subject to the conditions imposed by the provisions of 

KRS 532.200 to 532.250.” Also, KRS 532.120 states in relevant part:

(3) Time spent in custody prior to the commencement of 

a sentence as a result of the charge that culminated in the 

sentence shall be credited by the Department of 

Corrections toward service of the maximum term of 

imprisonment in cases involving a felony sentence and 

by the sentencing court in all other cases. If the sentence 

4 These statutes will be discussed further below.
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is to an indeterminate term of imprisonment, the time 

spent in custody prior to the commencement of the 

sentence shall be considered for all purposes as time 

served in prison.

. . . .

(7) As used in subsections (3) and (4) of this section, 

time spent in custody shall include time spent in pretrial 

home incarceration pursuant to KRS 431.517, subject to 

the conditions imposed by KRS 532.245.

In addition, the current version of KRS 532.245 states:

(1) Time spent in pretrial home incarceration pursuant to 

KRS 431.517 shall be credited against the maximum 

term of imprisonment assessed to the defendant upon 

conviction. Notwithstanding KRS 532.200, a defendant 

who spent time in pretrial home incarceration pursuant to 

KRS 431.517 shall not be required to have participated in 

a global positioning monitoring system program [GPS] to 

receive credit. Time credited under this section shall be 

calculated in accordance with KRS 532.120.

(2) Violation of the terms of pretrial home incarceration 

shall be deemed an interruption of the defendant’s home 

incarceration. The interruption shall begin at the time of 

the violation and shall continue until a court revokes 

home incarceration or otherwise acts on the violation. 

Time spent in pretrial home incarceration prior to the 

violation shall be credited against the maximum term of 

imprisonment assessed to the defendant upon conviction 

for the original charge.

(3) This section shall apply to defendants sentenced on or 

after July 12, 2012.
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At the time Appellant filed the motion seeking jail-time credit, KRS 532.245(1)

did not have the language regarding the GPS monitoring device. The current 

version of KRS 532.245(1) came into effect during the pendency of this appeal.

Appellant’s argument on appeal is that he was in pretrial home 

incarceration pursuant to the above statutes and he is entitled to custody credit. 

The Commonwealth disagrees and argues that Appellant was not on home 

incarceration because he was not fitted with a GPS monitoring device. The 

Commonwealth also argues that Appellant failed to exhaust his administrative 

remedies.

As to the Commonwealth’s administrative remedies argument, a 

defendant must first pursue administrative remedies with the Department of 

Corrections before a motion can be filed with the circuit court seeking pretrial jailtime credit. Sanders v. Commonwealth, 600 S.W.3d 266, 268 (Ky. App. 2020). 

The record is clear that Appellant fulfilled his administrative duties before seeking 

redress with the courts. He contacted the relevant administrative departments 

seeking his credits. 

The main issue on appeal is whether Appellant was on home 

incarceration pursuant to the above statutes. As previously mentioned, the 

Commonwealth argued at the trial level that Appellant was not on home 

incarceration because KRS 532.200(2) states that home incarceration requires the 
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use of a monitoring device, such as a GPS. Appellant was not required to wear a 

GPS device while on house arrest. We believe it is most likely that the trial court 

denied Appellant’s motion for jail-time credits based on the lack of GPS monitor 

as that was the most straightforward issue and was determinative of the motion. 

The trial court was correct in its ruling at the time. The problem arises that while 

the appeal was pending, KRS 532.245 was amended and the use of a GPS monitor 

is no longer required in order for a defendant to receive jail-time credit while on 

home incarceration prior to trial. We must determine if the current version of KRS 

532.245 applies to Appellant. 

As the proper interpretation of a statute is purely a legal issue, our 

review is de novo. Commonwealth v. Long, 118 S.W.3d 178, 181 (Ky. App. 2003) 

(citations omitted). 

The right to jail-time credit is derived purely from 

statute. As such, it is governed by and interpreted 

according to legislative intent. As with any case 

involving statutory interpretation, our duty is to ascertain 

and give effect to the intent of the General Assembly.

The Legislature is presumed to be aware of the existing 

law at the time of enactment of a later statute and, 

therefore, intent can be readily ascertained from both 

maintenance and alteration of a statute.

Sanders, 600 S.W.3d at 270 (internal quotation marks and citations omitted).

The current version of KRS 532.245(3) states that it applies to 

“defendants sentenced on or after July 12, 2012.” This language did not change 
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from the previous version of the statute. The question then becomes does the new 

language, where a defendant is no longer required to have GPS monitoring, apply 

to defendants sentenced after July 12, 2012, or does it only apply to defendants 

sentenced after the effective date of the current version, July 14, 2022? The 

legislature chose not to change KRS 532.245(3) when enacting the new version of 

the statute, the new GPS monitoring provision applies to all defendants sentenced 

after July 12, 2012. That means Appellant was not required to have a GPS monitor 

for him to receive jail-time credit for home incarceration.

However, because the relevant statute has changed and the trial court 

did not need to fully examine all the requirements for home incarceration at the 

time it ruled on Appellant’s motion, we must remand this case to the trial court. 

The court must determine if Appellant’s house arrest met the conditions of home 

incarceration. 

The conditions of home incarceration shall include the 

following:

(1) The home incarceree shall be confined to his 

home at all times except when:

(a) Working at approved employment or 

traveling directly to and from such 

employment;

(b) Seeking employment;

(c) Undergoing available medical, 

psychiatric, or mental health treatment or 
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approved counseling and after care 

programs;

(d) Attending an approved educational 

institution or program;

(e) Attending a regularly scheduled religious 

service at a place of worship; and

(f) Participating in an approved community 

work service program;

(2) Violation of subsection (1) of this section may 

subject the home incarceree to prosecution under 

KRS 520.030 (escape);

(3) The home incarceree shall conform to a 

schedule prepared by a designated officer of the 

supervising authority specifically setting forth the 

times when he may be absent from the home and 

the locations where he may be during those times;

(4) The home incarceree shall not commit another 

offense during the period of time for which he is 

subject to the conditions of home incarceration;

(5) The home incarceree shall not change the place 

of home incarceration or the schedule without 

prior approval of the supervising authority;

(6) The home incarceree shall maintain a telephone 

or other approved monitoring device in the home 

or on his person at all times;

(7) Any other reasonable conditions set by the 

court or the supervising authority including:

(a) Restitution under KRS 533.030;
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(b) Supervision fees under KRS 439.315; 

and

(c) Any of the conditions imposed on 

persons on probation or conditional 

discharge under KRS 533.030(2);

(8) A written and notarized consent agreement 

shall be filed with the court by every adult who 

will share the offender’s home during the term of 

home incarceration; and

(9) Any supervision fee or other monetary 

condition, except restitution, shall be paid by the 

defendant directly to the person or organization 

specified by the court in a written order, except 

that any such fees or monetary conditions owed to 

the Department of Corrections shall be paid 

through the circuit clerk.

KRS 532.220.

Finally, we must address the fact that Appellant’s plea agreement 

stated that he was waiving any pretrial jail-time credits he was entitled to. 

Appellant claims waiving these credits would amount to an illegal sentence 

because the credits are mandatory. We agree. “[T]he general rule that a judgment 

rendered by a court in a criminal case must conform strictly to the statute, and that 

any variation from its provisions, either in the character or the extent of 

punishment inflicted, renders the judgment absolutely void.” Weems v. United

States, 217 U.S. 349, 381-82, 30 S.Ct. 544, 555, 54 L. Ed. 793 (1910). Our 

Kentucky Supreme Court has also held that criminal punishments that go against 
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statutes or are in excess of the lawful range of punishment are not permitted. 

McClanahan v. Commonwealth, 308 S.W.3d 694, 698 (Ky. 2010).

Here, Appellant pleaded guilty to second-degree manslaughter. This 

is a Class C felony. KRS 507.040(2). Class C felonies cannot exceed ten years in 

prison. KRS 532.060(2)(c). Appellant was sentenced to ten years in prison, but he 

was on house arrest for over two years. If Appellant was on home incarceration as 

he claims, then he would have a twelve-year sentence. This is not permitted. In 

addition, KRS 532.120(3) and KRS 532.245(1) state that a defendant “shall” 

receive jail-time credit for time spent on home incarceration. “Shall” is 

mandatory. KRS 446.010(39). The requirement in Appellant’s plea agreement 

that he must waive his pretrial jail-time credits is void. The rest of the plea 

agreement is valid and this Opinion should not be read to in any way vacate or 

reverse Appellant’s sentence.

CONCLUSION

Based on the foregoing, we reverse and remand. On remand, the trial 

court shall determine if Appellant was on home incarceration pursuant to the 

relevant statutes. The court should also keep in mind that Appellant could not 

lawfully waive his ability to receive jail-time credit for home incarceration.

ALL CONCUR.
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BRIEFS FOR APPELLANT:

David Scott Tate, pro se

Pineville, Kentucky

BRIEFS FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Matthew R. Krygiel

Assistant Attorney General

Frankfort, Kentucky