Stewart v. State3/9/1999
the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1998). Petitioner is currently incarcerated at Ft. Supply, Oklahoma - a location not within Oklahoma County. Therefore, Judge Freeman appropriately found that venue of Petitioner's habeas corpus proceeding in Oklahoma County was not proper.
The pleadings before us in substance show that Petitioner was, in effect, challenging his conviction or sentence. Therefore, we will construe the matter as a proceeding under the Post-Conviction Procedure Act. The record reflects that Petitioner was advised of his rights to appeal at the time Judge Freeman sentenced Petitioner to imprisonment with the DOC, and he did not appeal. Because Petitioner did not appeal, Judge Freeman concluded (in part) that Petitioner was precluded from challenging the sentence imposed in a post-conviction proceeding.
We agree that the doctrine of waiver precludes this Court's review of issues which could have been raised on direct appeal, but were not. See Jones v. State, 1985 OK CR 99, 4, 704 P.2d 1138, 1140; Smith v. State, 1976 OK CR 61, 5-6, 546 P.2d 1351, 1354; 22 O.S.1991, § 1086. However, this Court has recognized that post-conviction relief is appropriately granted upon a showing by a petitioner that his or her sentence is invalid as a matter of law. See Stafford v. State, 1990 OK CR 84, 3-5, 800 P.2d 738, 739-40; White v. State, 1989 OK CR 20, 5-6, 774 P.2d 1072, 1072-1073; compare with Robertson v. State, 1995 OK CR 6, 8, 888 P.2d 1023, 1025.
Here, Petitioner correctly notes that 22 O.S.1991, § 991a-2 contains no provision for sentencing a defendant to custody of the DOC after non-compliance with a sentence to a night-time incarceration program. 22 O.S.1991, § 991a-2 states, in pertinent part:
" ny person who has been convicted of a nonviolent felony in the state may be sentenced, at the discretion of the Judge, to incarceration in the county jail for a period of one or more nights or weekends with the remaining portion of each week being spent under probation, in lieu of any other kind of imprisonment prescribed by law for the particular felony. . . . For the purposes of this section, weekend incarceration shall commence at 6 p.m. on Friday and continue until 8 a.m. on the following Monday, and incarceration overnight shall commence at 6 p.m. on one day and continue until 8 a.m. of the next day. . . ." (emphasis added).
We must hold a statute to mean what it plainly expresses and no room is left for construction and interpretation where the language employed is clear and unambiguous. Wallace v. State, 1997 OK CR 18, , 935 P.2d 366, 369-370; see also 25 O.S.1991, § 1. The Legislature failed to provide consequences for non-compliance with the night-time incarceration program or to provide that a night-time incarceration sentence could be imposed as a deferred or delayed sentence.
The sentencing powers of the court are defined by statute at Section 991a of Title 22. Although the statute defining the sentencing powers of the court has been amended numerous times, in 1997, at the time of Petitioner's guilty plea, it provided, in part, that the court could " uspend the execution of sentence in whole or in part, with or without probation." 22 O.S.Supp.1996, §991a(A)(1). The power of the court to suspend an offender's sentence was limited by the following language: "The provisions of paragraph 1 of subsection A of this section shall not apply to defendants being sentenced upon their third or subsequent to their third conviction of a felony." 22 O.S.Supp.1996, § 991a(C).
The deferred judgment procedure is set forth at Section 991c of Title 22. It provides that a "court may,
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