               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41660

STATE OF IDAHO,                                  )
                                                 )     2014 Opinion No. 78
       Plaintiff-Respondent,                     )
                                                 )     Filed: September 24, 2014
v.                                               )
                                                 )     Stephen W. Kenyon, Clerk
JEFFREY ALAN DENNY,                              )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Lansing L. Haynes, District Judge.

       Order denying motion for credit for time served, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Jeffrey Alan Denny appeals from the district court’s order denying his motion for credit
for time served. For the reasons set forth below, we affirm.
       In June 2008, authorities in Idaho located a stolen vehicle that had been used in a robbery
in Washington. Police observed Denny exiting the vehicle as they approached. After police
contacted Denny and took him into custody, methamphetamine and drug paraphernalia were
found in his pocket. Denny also admitted to taking the vehicle.
       Denny was charged with possession of a controlled substance, I.C. § 37-2732(c)(1), and
receiving or transferring a stolen vehicle, I.C. § 49-228. Pursuant to a plea agreement, Denny
entered an Alford 1 plea to possession of a controlled substance and the state dismissed the
remaining charge. The district court sentenced Denny to a unified term of seven years, with a


1
       See North Carolina v. Alford, 400 U.S. 25 (1970).


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minimum period of confinement of three years, and retained jurisdiction. At the end of the
jurisdictional review period in April 2009, Denny was placed on probation for three years. He
was released to the custody of the state of Washington pursuant to a governor’s warrant relating
to a charge of robbery. Denny was incarcerated in Washington until approximately July 2010,
but failed to notify Idaho probation authorities of his release as required by the terms of his
probation.
       On October 3, 2011, Denny was arrested by Washington officials for being a felon in
possession of a firearm. 2 Idaho filed a probation violation report a few days later alleging that
Denny had committed several probation violations, including incurring the new charges in
Washington. A bench warrant was issued, but because Denny was in custody in Washington, the
warrant was not served on him until December 7, 2012. At a subsequent hearing for the
probation violation, the state agreed to withdraw the allegation regarding the new charges in
Washington and Denny admitted to the remaining allegations.           The district court revoked
Denny’s probation and again retained jurisdiction. At the end of Denny’s second review period,
the district court relinquished jurisdiction and imposed the underlying sentence.
       Denny filed a pro se motion for credit for time served, seeking credit for the time he was
incarcerated between his original arrest and his release on probation. He also sought credit for
the time he was incarcerated in Washington after the probation violation report was filed on
October 7, 2011. The district court partially granted Denny’s motion, awarding him 143 days for
the time served between his original arrest on June 20, 2008, and his release to probation on
April 13, 2009, and 136 days for the time served between the December 7, 2012, service of the
bench warrant and imposition of his sentence on April 22, 2013. Denny filed another pro se
motion for credit for time served, again requesting credit for the time spent incarcerated in
Washington after the probation violation report was filed, which the district court denied on the
basis that Denny was being held as the result of the Washington conviction, not the Idaho
probation violation, during that time. 3



2
     Being a felon in possession of a firearm is a Class B felony in Washington and carries a
maximum sentence of up to ten years, with no minimum period of incarceration required. See
RCW §§ 09.41.040(1)(a),(b), and 9A.20.021(1)(b).
3
       Denny did not challenge either of these decisions on appeal.

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       Denny then filed a third motion for credit for time served with an accompanying
affidavit, which is the subject of this appeal. Denny alleged that he had been notified of the
Idaho warrant on October 11, 2011, and was “unable to gain release through bond or otherwise”
until he was transported to Idaho on December 12, 2012. He also alleged that he was being held
under the Washington charges for only thirty days, which expired on November 2, 2011. The
district court again denied the motion. Denny appeals.
       The question of whether a sentencing court has properly awarded credit for time served
on the facts of a particular case is a question of law, which is subject to free review by this Court.
State v. Vasquez, 142 Idaho 67, 68, 122 P.3d 1167, 1168 (Ct. App. 2005); State v. Horn, 124
Idaho 849, 850, 865 P.2d 176, 177 (Ct. App. 1993). We defer to the district court’s findings of
fact, unless those findings are unsupported by substantial and competent evidence in the record
and are therefore clearly erroneous. State v. Covert, 143 Idaho 169, 170, 139 P.3d 771, 772 (Ct.
App. 2006).
       Denny argues that he is entitled to credit for the time he spent incarcerated in Washington
after the alleged expiration of his thirty-day Washington sentence on November 2, 2011, until he
was served the bench warrant on December 7, 2012. Specifically, he argues that it was the Idaho
warrant that prevented his release from custody in Washington at the expiration of his
Washington sentence.
       Generally, I.C. § 19-2603 governs credit for time served as it relates to the revocation of
probation.    Under that provision, when a probationer has been arrested upon a probation
violation, “the time of the defendant’s sentence shall count from the date of service of [the]
bench warrant.” Id. Additionally, Idaho case law requires that a probationer likewise receive
credit for time served when he or she has been held on the functional equivalent of a bench
warrant. State v. Kesling, 155 Idaho 673, 678, 315 P.3d 861, 866 (Ct. App. 2013). For example,
in State v. Buys, 129 Idaho 122, 922 P.2d 419 (Ct. App. 1996), Buys, who was on probation, was
arrested for a new charge and, on the same day, the district court issued an order of incarceration.
The basis of the order was that Buys had been charged with a new crime, that Buys’s probation
officer was conducting an investigation of the incident, and that a probation violation report
would be filed thereafter. We held that the order for incarceration was the functional equivalent
of a bench warrant issued in connection with an alleged probation violation and therefore that
Buys was entitled to credit for time served in jail upon that order. Id. at 127-28, 922 P.2d at


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424-25. See also Covert, 143 Idaho at 170, 139 P.3d at 772 (holding that a probationer held on
an agent’s warrant after being arrested for a new offense was entitled to credit for time served
from the date of arrest, not the date of service of the bench warrant, as the agent’s warrant had
the same effect as a bench warrant in preventing him from being able to bond out on the new
charge).
       Aside from his affidavit, Denny provides no evidence that it was the Idaho bench warrant
or some functional equivalent of a bench warrant that prevented him from bonding out or
otherwise being released from custody in Washington during the disputed period. Indeed, the
record is largely devoid of documentation showing the nature and disposition of Denny’s
incarceration in Washington during the disputed period. It is the appellant’s responsibility to
provide a sufficient record to substantiate his or her claims on appeal. State v. Murinko, 108
Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985). In the absence of an adequate record on
appeal to support the appellant’s claims, we will not presume error. State v. Beason, 119 Idaho
103, 105, 803 P.2d 1009, 1011 (Ct. App. 1991). Denny has failed to provide any evidence
supporting the claims made in his affidavit that he was held in Washington and was not able to
be released based on the mere issuance of the Idaho bench warrant. Unlike in Buys and Covert,
Denny has failed to establish that he was held on the functional equivalent of a bench warrant,
such as an agent’s warrant or an order of incarceration. Indeed, the record indicates to the
contrary. During the hearing on the probation violation report, Denny’s counsel noted that
Denny was arrested for being a felon in possession of a firearm in October 2011 and held for a
year in Washington on that charge prior to being brought to Idaho. 4 Additionally, Denny was
not served with the bench warrant until December 7, 2012. Thus, the district court’s finding that
Denny’s incarceration in Washington during the disputed period was not the result of either the
unserved bench warrant or its functional equivalent is not clearly erroneous. As a result, Denny
has failed to show that the district court erred in calculating his credit for time served.
       Denny is not entitled to any more credit for time served than has already been awarded by
the district court. Accordingly, we affirm the district court’s order denying Denny’s motion for
credit for time served.
       Chief Judge GUTIERREZ and Judge LANSING, CONCUR.

4
        Denny’s counsel also noted that the charge was dismissed shortly before Denny was to
return to Idaho.

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