State Of Washington, Respondent V. Tyler John Kirwan, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
TYLER JOHN KIRWAN,
Appellant.
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No. 80889-3-I
DIVISION ONE
UNPUBLISHED OPINION
HAZELRIGG, J. — Tyler J. Kirwan received standard range sentences on one
count of possession of a stolen motor vehicle and one count of possession of
methamphetamine. At sentencing, Kirwan requested credit for time he spent
incarcerated in California subsequent to his release from custody on personal
recognizance in Washington on this case. The trial court partially granted his
request; allowing credit for a portion of the time served in California, limiting it to
the period following his booking on a Washington fugitive warrant that had been
issued after his extradition to California. As the court’s decision was consistent
with both the statute and signed plea agreement of the parties, Kirwan’s argument
has no merit and we affirm on that issue.
While this appeal was pending, Kirwan moved to file a supplemental
assignment of error in this court based on State v. Blake.1 This panel granted the
1 No. 96873-0, Slip Op. (Wash. Feb 25, 2021),
https://www.courts.wa.gov/opinions/pdf/968730.pdf.

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motion and the State conceded that count two, possession of methamphetamine,
should be vacated and Kirwan should be resentenced on count one. Accordingly,
we remand for further proceedings consistent with the State’s concessions.
FACTS
On April 11, 2017, Tyler Kirwan was charged in King County, Washington
with one count of possession of a stolen vehicle and one count of possession of
methamphetamine. Kirwan had been booked into jail on April 7, 2017, the date of
his arrest. Kirwan was released from custody on those charges on May 16, 2017,
however he remained held in the King County Jail until May 24, 2017 when he was
extradited to Humboldt County, California to face criminal charges there. Kirwan
was incarcerated in California from May 24, 2017 until January 29, 2018. During
this span of time he was transported to three separate counties in California to face
charges in each jurisdiction.
A warrant issued in this case on June 13, 2017 based on Kirwan’s failure to
appear for a court hearing while he was still jailed in California. On November 21,
2017, while Kirwan was incarcerated in California, he was booked on the
extraditable fugitive warrant from King County. Kirwan resolved his last California
charge on January 29, 2018 and waived extradition to Washington to face the King
County charges. Kirwan was booked into the King County Jail on February 15,
2018.
Following jury trial, Kirwan was convicted of possession of
methamphetamine, but the jury could not reach a unanimous verdict on the
possession of stolen motor vehicle charge and a mistrial was declared as to that

No. 80889-3-I/3
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count. Kirwan later entered a guilty plea to that charge and was sentenced on the
two counts under one judgment and sentence. As part of the plea agreement,
which was signed by all parties and filed with the court, the State agreed to request
that Kirwan receive “credit for time served by defendant in California jails while on
Washington hold during the pendency of this case.”
Pursuant to the plea agreement, the State requested that Kirwan receive
credit for time served in California while he was held on the Washington fugitive
warrant; the period from November 22, 2017 to February 15, 2018, for a total of 86
days. Kirwan requested credit for the time served in California beginning on June
13, 2017, the date the Washington warrant for Kirwan’s failure to appear in court
was issued, but before it had been served. The trial court reviewed RCW
9.94A.505(6) and determined Kirwan was not entitled to credit for the time prior to
the service of the Washington warrant when he was solely held in custody on
California charges. Kirwan received a standard range sentence of 25 months on
the possession of a stolen motor vehicle charge and six months plus one day on
the possession of methamphetamine charge, to be served concurrently. The trial
court credited him with 89 days2 against the sentence. Kirwan now appeals.
ANALYSIS
Kirwan argues that the trial court erred by failing to grant him full credit for
the time he served in California awaiting extradition to Washington. He offers no
2 The court credited him with the 86 days he spent in California and three days served in
the King County Jail and on a local alternative to confinement, for a total of 89 days.

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compelling authority for his position that he is entitled to credit for time prior to the
service of a bench warrant and we thereby affirm.
This court reviews questions of law de novo. State v. Swiger, 159 Wn.2d
224, 227, 149 P.3d 372 (2006). An individual has both a constitutional and a
statutory guarantee to receive credit for each day of confinement served prior to
sentencing. In re Pers. Restraint of Costello, 131 Wn. App. 828, 832, 129 P.3d
827 (2006). However, this guarantee is not without limits:
The sentencing court shall give the offender credit for all confinement
time served before the sentencing if that confinement was solely in
regard to the offense for which the offender is being sentenced.
RCW 9.94A.505(6) (emphasis added). This statute “reflects the constitutional
requirement that an offender be credited for each day of confinement served prior
to sentencing.” State v. Enriquez-Martinez, 14 Wn. App. 2d 192, 195, 469 P.3d
1186 (2020). This requirement does not mandate “that each day of preconviction
detention be credited to the offender” when multiple sentences are at issue. Id. A
defendant is not entitled to time spent in custody out-of-state while detained on
another state’s charges. Id. at 197–98.
Here, Kirwan’s claim is that he is entitled to time he spent in custody in
California before the Washington warrant was even served on him. This claim is
without merit and not well taken. The plain meaning of RCW 9.94A.505(6)
establishes that a person must be confined on the offense for which credit is sought
at sentencing in order to receive credit for that time, yet the record makes clear
that Kirwan was not held under authority of the warrant on this case until November
21, 2017. The time to which Kirwan argues he entitled to credit toward this

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sentence is time during which he was held solely on California charges after being
released on personal recognizance in Washington. The record before us reflects
that Kirwan received credit for his time of confinement for the entire period that he
was held on the Washington fugitive warrant.
Further, the plea agreement filed with the court at sentencing, signed by
Kirwan, his defense counsel and the deputy prosecutor, includes a section entitled
“OTHER” which specifically provides: “State will agree to credit for time served by
defendant in California jails while on a Washington hold during the pendency of
this case (as a result of defendant’s extradition).” (Emphasis added). While this
would not limit Kirwan’s ability to argue for additional credit, this portion of the plea
agreement to which Kirwan affirmatively agreed, put him on notice as to a likely
measure by which his credit for time served would be calculated. Limiting credit
for time served to only that which has accrued after the warrant is served is an
exceedingly reasonable determination by the trial court. Accordingly, we find no
error and affirm.
While this appeal was pending, our supreme court issued its opinion in
Blake, which deemed the statute criminalizing possession of a controlled
substance to be unconstitutional. Slip op. at 30-31. On that basis, Kirwan moved
to file a supplemental assignment of error, which we granted. The supplemental
assignment of error argued that count two, possession of methamphetamine,
should be vacated under Blake. In response, the State filed a motion to concede
error only as to that charge, agreeing that it should be vacated and further
conceding that Kirwan should be resentenced as to count one. We grant the

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State’s motion and accept its concession. We direct the trial court to vacate
Kirwan’s conviction as to count two, recalculate his offender score, and resentence
him on count one.
Affirmed in part and remanded for vacation of count two and resentencing.
WE CONCUR: