Sentencing Judge

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **KENNETH ALLEN DAY,** Appellant, **V.** **STATE OF OKLAHOMA,** Appellee. Case No. F-2018-1161 **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: 1. **Count 1:** Sexual Battery (21 O.S.Supp.2015, § 1123(B)) 2. **Counts 2 and 3:** Indecent Exposure (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 over the trial and executed the sentences as per the jury's recommendations, ordering them to run consecutively and consecutively to Oklahoma County Case No. CF-16-6470. Day was granted credit for 177 days served and was subject to various costs and fees. Day appeals, raising the following proposition of error: **I. THE TRIAL COURT INCORRECTLY INTERPRETED OKLA. STAT. TIT. 57, § 138(G) BY REFUSING TO GRANT MR. DAY CREDIT FOR ALL TIME SERVED WHILE AWAITING TRIAL AND SENTENCING, CLAIMING THAT THE STATUTE WAS DISCRETIONARY AND NOT MANDATORY.** Upon a thorough review of the entire record including transcripts, exhibits, and the parties' briefs, we find no legal error necessitating relief. Therefore, Day's judgments and sentences are AFFIRMED. **Proposition I:** Day's claim pertains to the nature of credit for time served—whether it is mandatory or discretionary. Citing *Loyd v. State*, 1981 OK CR 5, 624 P.2d 74, Day contends that 57 O.S.Supp.2015, § 138(G) mandates credit for all time served prior to judgment and sentence. However, as recently discussed and clarified in *Luna-Gonzales v. State*, 2019 OK CR 11, this argument has been rejected. This Court noted that *Loyd* is inconsistent with the majority of case law on this subject and that the Oklahoma Legislature has amended § 138 multiple times since 1980, which indicates a legislative intent to modify the ruling in *Loyd*. The current statute indicates that defendants automatically receive credit for jail time served only post-judgment and sentencing. Significantly, *Loyd* is overruled to the extent it conflicts with this interpretation. We also recognize that the district court exercised its discretion appropriately in awarding Day partial credit for time served, which aligns with previous ruling in *Luna-Gonzales* that grants sentencing judges discretion regarding credit for pre-sentencing incarceration. Thus, Day's argument is rejected, and his assertion is firmly denied. **DECISION** The judgments and sentences of the District Court are AFFIRMED. According to Rule 3.15 of the Rules of the Oklahoma Court of Criminal Appeals, the MANDATE shall be issued upon the delivery and filing of this decision. **AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY** **THE HONORABLE TIMOTHY R. HENDERSON, DISTRICT JUDGE** **APPEARANCES AT TRIAL** RICHARD HULL (Counsel for Appellant) HALLIE ELIZABETH BOVOS KRISTEN MESSINA, ASST. PUBLIC DEFENDER **APPEARANCES ON APPEAL** LORI MCCONNELL MIKE HUNTER RACHEL SMITH JULIE PITTMAN, ASST. ATTORNEY GENERAL, (Counsel for Appellee) **OPINION BY:** HUDSON, J. **LEWIS, P.J.:** CONCUR **KUEHN, V.P.J.:** CONCUR **LUMPKIN, J.:** CONCUR **ROWLAND, J.:** CONCUR For further details and access to full judgment, [Click Here to Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1161_1734786325.pdf)