Kenneth Allen Day v State Of Oklahoma

F-2018-1161

Filed: Jan. 30, 2020

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Kenneth Allen Day appealed his conviction for sexual battery and indecent exposure. His conviction and sentence were affirmed. Judge Rowland dissented.

Decision

The Judgments and Sentences of the District Court are AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was the trial court's interpretation of OKLA. STAT. TIT. 57, § 138(G) regarding credit for time served correct?
• did the trial court have discretion in granting credit for time served prior to sentencing?
• is the precedent set in Loyd v. State still applicable given the legislative changes to § 138?

Findings

• the court did not err in its interpretation of 57 O.S.Supp.2015, § 138(G)
• the district court appropriately exercised its discretion in granting partial credit for time served
• Day's argument regarding mandatory credit for time served is rejected
• the Judgments and Sentences of the District Court are AFFIRMED

F-2018-1161

Jan. 30, 2020

Kenneth Allen Day

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE: Appellant, Kenneth Allen Day, was tried and convicted by a jury in the District Court of Oklahoma County, Case No. CF-2017-2586, of Count 1: Sexual Battery, in violation of 21 O.S.Supp.2015, § 1123(B), and Counts 2 and 3: Indecent Exposure, in violation of 21 O.S.2011, § 1021. The jury recommended a sentence of 30 days imprisonment on Count 1, and 1 year imprisonment each on Counts 2 and 3. The Honorable Timothy R. Henderson, District Judge, presided at trial and sentenced Day in accordance with the jury’s verdicts. Judge Henderson ordered the sentences to run consecutively to each other, and consecutively to Oklahoma County Case No. CF-16-6470. The court further granted Day credit for 177 days of time served and imposed various costs and fees. Day now appeals, raising the following proposition of error before this Court:

I. THE TRIAL COURT INCORRECTLY INTERPRETED OKLA. STAT. TIT. 57, § 138(G) WHEN IT REFUSED TO GRANT MR. DAY CREDIT FOR ALL TIME SERVED WHILE AWAITING TRIAL AND SENTENCING ON THE GROUNDS THAT THE PROVISION OF OKLAHOMA LAW WAS DISCRETIONARY AND NOT MANDATORY.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find that no relief is required under the law and evidence. Appellant’s Judgments and Sentences are AFFIRMED.

Proposition I: Day’s claim questions whether credit for time served is mandatory or discretionary. Relying on Loyd v. State, 1981 OK CR 5, 8, 624 P.2d 74, 75, Day argues that the governing statute, 57 O.S.Supp. 2015, § 138(G), mandates that defendants receive credit for time served prior to the entry of the Judgment and Sentence. This Court recently addressed and rejected this argument in Luna-Gonzales v. State, 2019 OK CR 11, 6-9, 442 P.3d 171, 174. In doing so, this Court found:

Loyd is in conflict with the great weight of our cases on this point. The Oklahoma Legislature has amended and modified the language within § 138 on numerous instances since 1980, thus, impliedly overruling Loyd. It is clear from the plain language of 57 O.S.Supp.2015, § 138(G) that a criminal defendant only receives automatic credit for jail terms which occur after imposition of a judgment and sentence. To the extent that Loyd may be read as inconsistent with the present case it is expressly overruled. Id. at 9, 442 P.3d at 174.

We likewise reject Day’s argument. Moreover, a review of the record demonstrates the district court appropriately exercised its discretion when it granted Day partial credit for time served. See Luna-Gonzales v. State, 2019 OK CR 11, 7, 442 P.3d 171, 174 (sentencing judge has discretion in awarding credit for time served in jail before sentencing); Neloms v. State, 2012 OK CR 7, 35, 274 P.3d 161, 170 (an abuse of discretion is any unreasonable or arbitrary ruling made without proper consideration of the facts and law pertaining to the issue). Day’s sole proposition of error is thus denied.

DECISION

The Judgments and Sentences of the District Court are AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Loyd U. State, 1981 OK CR 5, ¶ 8, 624 P.2d 74, 75.
2. Luna-Gonzales U. State, 2019 OK CR 11, ¶ 6-9, 442 P.3d 171, 174.
3. 57 O.S.Supp.2015, § 138(G).
4. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123(B) - Sexual Battery
• Okla. Stat. tit. 21 § 1021 - Indecent Exposure
• Okla. Stat. tit. 57 § 138(G) - Credit for Time Served

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

No case citations found.