AN
APPEAL FROM THE DISTRICT COURT OF PAYNE COUNTY THE HONORABLE
PHILLIP CORLEY, DISTRICT JUDGE
ROYCE
HOBBS COUNSEL FOR DEFENDANT
ARIEL
PARRY OKLA. INDIGENT DEFENSE COUNSEL FOR APPELLANT
DEBRA
VINCENT COUNSEL FOR THE STATE
MIKE
HUNTER JENNIFER B. WELCH COUNSEL FOR THE STATE
OPINION
LUMPKIN, J.
¶1
Appellant, Ivan Luna-Gonzales, was tried by jury and
convicted of Domestic Assault and Battery with Dangerous
Weapon (21 O.S.Supp.2014, § 644 (D)(1)) in District
Court of Payne County Case Number CF-2016-837. The jury
recommended as punishment imprisonment for two (2) years. The
trial court sentenced Appellant accordingly and denied
Appellant credit for the time that he spent in jail awaiting
trial. It is from this judgment and sentence that Appellant
appeals.
¶2
Appellant resided with the mother of his child in Stillwater,
Payne County, Oklahoma. When the victim asked him to leave
her home on October 26, 2016, Appellant repeatedly struck her
with a two-by-four on the head and hand causing the victim
great bodily injury requiring 14 staples. Appellant only
ended his attack on the victim after her eight-year-old son
cried out for him to stop. Appellant sliced his wrist with a
steak knife and fled into the nearby woods. The Stillwater
Police Department tracked Appellant with a canine whereupon
he surrendered to the officers. Appellant denied striking the
victim at trial and further denied confessing to the social
worker that visited him in the jail. He asserted that the
victim had injured herself. The physician that treated the
victim explained that it was very unlikely that she caused
her own injuries.
¶3
In his sole proposition of error, Appellant contends that the
trial court violated 57 O.S.Supp.2015, § 138 (G) when it
refused to grant him credit for the time he spent in jail
while awaiting trial. He argues that the trial court
misinterpreted § 138(G).
¶4
This Court has not had the opportunity to specifically
construe § 138(G). However, the rules of statutory
construction are well settled. Wells v. State, 2016
OK CR 28, ¶ 6, 387 P.3d 966, 968. Statutes are to be
construed according to the plain and ordinary meaning of
their language. Id.; State v. Young, 1999
OK CR 14, ¶ 27, 989 P.2d 949, 955. The fundamental
principle of statutory construction is to ascertain and give
effect to the intention of the Legislature as expressed in
the statute. Arganbright v. State, 2014 OK CR 5,
¶ 17, 328 P.3d 1212, 1216; Young, 1999 OK CR
14, ¶ 27, 989 P.2d at 955. "Each part of the
various statutes must be given intelligent effect. This Court
avoids any statutory construction which would render any part
of a statute superfluous or useless." Wells,
2016 OK CR 28, ¶ 6, 387 P.3d at 968 (citations omitted).
¶5
Title 57 governs the State's prisons and reformatories.
Section 138 of this title enacts and sets forth the
requirements of the Oklahoma Department of Corrections'
policies and procedures concerning inmate classification,
achievement and earned credits. Section 138(G) provides:
Inmates granted medical leaves for treatment that cannot be
furnished at the penal institution where incarcerated shall
be allowed the time spent on medical leave as time served.
Any inmate placed into administrative segregation for
nondisciplinary reasons by the institution's
administration may be placed in Class 2. The length of any
jail term served by an inmate before being transported to a
state correctional institution pursuant to a judgment and
sentence of incarceration shall be deducted from the term of
imprisonment at the state correctional institution. Inmates
sentenced to the Department of Corrections and detained in a
county jail as a result of the Department's reception
scheduling procedure shall be awarded earned credits as
provided for in subparagraph b of paragraph 1 of subsection D
of this section, beginning on the date of the judgment and
sentence, unless the inmate is convicted of a misdemeanor or
felony committed in the jail while the inmate is awaiting
transport to the Lexington Assessment and Reception Center or
other assessment and reception location determined by the
Director of the Department of Corrections.
¶6
It is apparent from the plain language of the statute that
this statutory provision does not govern the time that a
criminal defendant spends in jail while awaiting trial.
Instead, it is clear from the language of § 138 and
specifically subsection G that the Oklahoma Legislature
intended this statutory provision to control an inmate's
accrual of credit towards his or her prison sentence after
the imposition of the requisite judgment and sentence.
Nothing within § 138(G) requires the trial court to
grant "jail credit," i.e., the deduction
of the time that a criminal defendant was confined while
awaiting trial from his or her final sentence. See
Black's Law Dictionary 851 (8th ed. 2004).
¶7
This construction is consistent with our established
precedent. "[I]t is a matter of well settled law that
the sentencing judge in Oklahoma has discretion in deciding
whether to allow a defendant credit for time served in jail
before sentencing." Holloway v. State, 2008 OK
CR 14, ¶ 8, 182 P.3d 845, 847; see alsoIn
re Tidwell, 1957 OK CR 33, ¶ 4, 309 P.2d 302, 304
(observing that "there is no statute in Oklahoma
requiring the trial court to give credit for time spent in
custody prior to trial," and that "in the absence
of statute the time that the defendant has spent in jail
awaiting trial forms no part of the time for which he was
sentenced.") (quotations and citations omitted).
"While it is common practice for the trial judge to give
credit for time ...