               IN THE SUPREME COURT OF IOWA
                                  No. 12–0811

                        Filed November 30, 2012


STATE OF IOWA,

      Appellee,

vs.

ALLEN ROBERT ALLENSWORTH,

      Appellant.



      Appeal from the Iowa District Court for Polk County, Michael D.

Huppert, Judge.



      Defendant serving prison sentence appeals order denying earned-

time credit for period spent on supervised probation before his

incarceration. AFFIRMED.



      Joseph P. Vogel of The Law Office of Turner & Vogel, PLLC,

Des Moines, for appellant.



      Thomas J. Miller, Attorney General, and William A. Hill, Assistant

Attorney General, for appellee.
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WATERMAN, Justice.

      This appeal involves a dispute over the application of the probation

credit recognized in Anderson v. State, 801 N.W.2d 1 (Iowa 2011). The

fighting issue is whether an offender accrues earned time under Iowa

Code section 903A.2 (2011) while on supervised probation before his

incarceration. Defendant, Allen Allensworth, initially received suspended

sentences for drug offenses and two years of probation.               He was

incarcerated after his probation was revoked. Allensworth contends the

Iowa Department of Corrections (IDOC) erroneously withheld his earned-

time credit for the probationary period, which would entitle him to

release from prison on February 5, 2013.           IDOC argues earned-time

credits are only earned while the offender is incarcerated and calculates

his tentative discharge date to be December 4, 2013.

      The district court ruled IDOC correctly calculated his discharge

date because earned-time credits are only earned while the offender is

incarcerated.   We agree, based on the unambiguous language of the

earned-time statute, which limits accrual of earned-time credit to

inmates who are incarcerated.    Id.       Accordingly, we affirm the district

court’s order denying earned-time credit for the time Allensworth spent

on supervised probation.

      I. Background Facts and Proceedings.

      The facts are undisputed. In our prior opinion in this case, we set

forth the circumstances of Allensworth’s arrest and search of his vehicle

in April 2006 that yielded twenty-five grams of methamphetamine hidden

in the steering column. State v. Allensworth, 748 N.W.2d 789, 790–91

(Iowa 2008).    He was charged with one count of possession of a

controlled substance (more than five grams) with intent to deliver, in

violation of Iowa Code section 124.401(1)(b)(7) (2005), and a second
                                     3

count of failure to possess a tax stamp, in violation of sections 453B.3

and 453B.12.     He pled guilty to both charges after we reversed the

district court order suppressing evidence of the methamphetamine. On

October 31, 2008, the district court imposed suspended sentences of ten

years (Count I) and five years (Count II) to run consecutively, and two

years of supervised probation with the department of correctional

services.

      His   probation   did   not   go   well.      On   September 14, 2009,

Allensworth stipulated to probation violations at a revocation hearing.

On February 1, 2010, the district court conducted a dispositional

hearing and extended his probation by three years and ordered him to

complete an in-jail treatment program.           On December 1, Allensworth

stipulated to additional violations.      The district court conducted a

contested probation disposition hearing on December 22. The district

court specifically found Allensworth had continued his drug usage and

failed to comply with the terms of his drug treatment program. The next

day, the court entered its order revoking his probation and imposing his

original prison sentences totaling fifteen years. He currently is an inmate

at the Clarinda Correctional Facility.

      On July 29, 2011, we filed our opinion in Anderson recognizing a

probation credit under Iowa Code section 907.3(3) (2007). Anderson, 801

N.W.2d at 5.     On October 31, Allensworth filed a “request for time,”

challenging the IDOC’s calculation of his tentative discharge date. The

district court entered an order setting the matter for hearing and

directing the IDOC to respond. The IDOC filed a response. The district

court held an unreported hearing on March 22, 2012, and issued its

ruling the next day. The ruling outlined the respective positions of the

parties as follows:
                                     4
             The parties agree on the raw numbers applicable to
      the calculations in question, as well as the defendant’s
      status to receive credit for his time on supervised probation,
      as required by Anderson v. State, 801 N.W.2d 1, 5 (Iowa
      2011). Their only point of contention is the order in which
      the applicable credits are calculated; the defendant takes the
      position that earned time should be calculated before his
      probation credit under Anderson, while the Department of
      Corrections argues the order should be reversed.          The
      significance of the argument is that if earned time is
      calculated before probation credit, the defendant’s sentence
      would be shortened by an additional 300 days, as compared
      to the Department’s calculations as contained in its written
      response. Iowa Code § 903A.2(1)(a) (2007) (earned time
      accrues at the rate of 1.2 days for each day served).

The district court ruled in favor of the IDOC, stating:

            The court agrees with the Department’s calculations.
      The proper order of calculation would be to reduce the
      defendant’s sentence first by his probation credit, and then
      by his earned time (and jail credit). This is because earned
      time (as the name suggests) does not begin until the
      defendant is committed to the director of the Department of
      Corrections. Iowa Code § 903A.2(1) (2007). To allow him to
      take earned time off his sentence prior to any reduction for
      his probation credit under Anderson would be inconsistent
      with this directive. It would, in essence, give him credit (in
      terms of earned time) for time he never “earned;” i.e., never
      served while in a DOC facility.

(Footnote omitted.)

      Allensworth appealed. We retained the appeal to decide whether

Allensworth’s time on supervised probation, credited against his prison

sentence under Anderson, also accrued earned-time credit under section

903A.2.

      II. Scope of Review.

      We review this question of statutory interpretation for correction of

errors of law. Anderson, 801 N.W.2d at 3.

      III. Analysis.

      Allensworth is one of the inmates whose discharge dates were

recalculated by the IDOC after our decision in Anderson. In that case,
                                    5

we held Iowa Code section 907.3(3) (2007) required sentencing credit for

time served on supervised probation after the defendant is committed to

the judicial district department of correctional services.       Id. at 5

(mandating credit against prison sentence for the offender’s time served

living at home under electronic monitoring).    We applied the following

language in section 907.3(3) as written: “ ‘A person so committed who

has probation revoked shall be given credit for such time served.’ ” Id. at

4 (quoting Iowa Code § 907.3(3) (2007)).

      The legislature amended section 907.3(3) in its next session

following the Anderson decision by adding the word “not” to that

sentence, thus limiting the credit to time served in alternate jail or

correctional facilities. See 2012 Iowa Acts ch. 1138, § 91 (“A person so

committed who has probation revoked shall not be given credit for such

time served. However, a person committed to an alternate jail facility or a

community correctional residential treatment facility who has probation

revoked shall be given credit for time served in the facility.” (Emphasis

added.)). This amendment became effective on the date of its enactment,

May 25, 2012. Id. § 93. The State does not claim the 2012 amendment

to section 907.3(3) applies to this appeal and agrees Allensworth is

entitled to a section 907.3(3) credit reducing his prison sentence by each

day he spent on supervised probation.

      Allensworth   seeks   to   further   reduce   his   remaining   time

incarcerated through the accrual of earned-time credit for his days spent

outside prison walls under supervised probation. The State argues he is

not entitled to earned-time credit for this probationary period.      This

appeal provides the opportunity to clarify how probation credits should

be calculated.   The parties agree Allensworth’s fifteen-year sentence is

reduced by three separate credits, but disagree as to the sequence in
                                     6

which each credit is applied. The source for each sentencing credit is

found in a different statutory provision: Iowa Code section 903A.2

governs earned-time credits, section 903A.5(1) governs jail-time credit,

and section 907.3(3) governs the probation credit.

      Allensworth argues the earned-time credit under section 903A.2

should be applied first to reduce the full sentence, then the credits for

jail time under section 903A.5(1) and time spent on probation under

section 907.3(3) are to be applied to offset the remaining sentence. As

the district court recognized, this sequence accelerates his discharge

date by accruing earned-time credit on days he spent on supervised

probation.      Conversely,   the   IDOC’s   sequence   avoids   awarding

Allensworth earned-time credit for the time he spent on probation by

applying the section 907.3(3) (2007) probation credit against his sentence

first. That way, the earned-time credit only accrues for days he actually

is incarcerated.

      We must decide whether earned time can be earned while outside

prison walls.      We will examine the interrelated statutory provisions

together to determine the proper sequence for applying each credit. “ ‘If

more than one statute relating to the subject matter at issue is relevant

to the inquiry, we consider all the statutes together in an effort to

harmonize them.’ ” Kolzow v. State, 813 N.W.2d 731, 736 (Iowa 2012)

(quoting State v. Carpenter, 616 N.W.2d 540, 542 (Iowa 2000)).

      A. Earned-Time Credit.        Iowa Code section 903A.2 is titled

“Earned time” and allows inmates to reduce their sentences for good

conduct. The purpose of earned-time credit “is to encourage prisoners to

follow prison rules and participate in rehabilitative programs.” Kolzow,

813 N.W.2d at 738. Section 903A.2 provides in part:
                                      7
             1. Each inmate committed to the custody of the director
      of the department of corrections is eligible to earn a reduction
      of sentence in the manner provided in this section. For
      purposes of calculating the amount of time by which an
      inmate’s sentence may be reduced, inmates shall be grouped
      into the following two sentencing categories:
              a. Category “A” sentences are those sentences which
      are not subject to a maximum accumulation of earned time
      of fifteen percent of the total sentence of confinement under
      section 902.12. . . . An inmate of an institution under the
      control of the department of corrections who is serving a
      category “A” sentence is eligible for a reduction of sentence
      equal to one and two-tenths days for each day the inmate
      demonstrates good conduct and satisfactorily participates in
      any program or placement status identified by the director to
      earn the reduction. . . .
              ....
             2. Earned time accrued pursuant to this section may
      be forfeited in the manner prescribed in section 903A.3.
             3. Time served in a jail or another facility prior to actual
      placement in an institution under the control of the department
      of corrections and credited against the sentence by the court
      shall accrue for the purpose of reduction of sentence under
      this section. Time which elapses during an escape shall not
      accrue for purposes of reduction of sentence under this
      section.

Iowa Code § 903A.2(1)–(3) (emphasis added).

      Section 903A.2 by its terms limits eligibility for earned time to

“inmate[s] committed to the custody of the director of the department of

corrections.” Id. § 903A.2(1). Allensworth was not an “inmate” while he

was on supervised probation, nor was he “committed to the custody” of

IDOC until he began serving his prison sentence.          We agree with the

district court’s conclusion that “earned time (as the name suggests) does

not begin until the defendant is committed to the director of the

Department of Corrections,” and that permitting Allensworth to accrue

earned time during his earlier probation “would be inconsistent with this

directive.”
                                      8

      Allensworth is serving a category A sentence.           The applicable

earned-time credit is allowed for “an inmate of an institution under the

control of the department of corrections who is serving a category ‘A’

sentence.” Id. § 903A.2(1)(a) (emphasis added). As noted, Allensworth

was not an inmate of an IDOC-controlled institution while he was

released on supervised probation. Accordingly, his probationary time is

ineligible for earned-time credit under the plain language of the

governing statute.

      Moreover, the statutory mechanism for forfeiting earned-time

credit reinforces the conclusion that earned time only accrues while the

offender is incarcerated. Section 903A.2 provides: “Earned time accrued

pursuant to this section may be forfeited in the manner prescribed in

section 903A.3.” Section 903A.3 in turn provides for loss or forfeiture of

earned time for the inmate’s violation of “an institutional rule.” Specific

procedures are required for forfeiture, including the inmate’s right of

appeal to the warden or warden’s designee. No procedure is in place for

forfeiture of earned time while on supervised probation. Nor is loss of

earned time mentioned among the various penalties set forth in the

separate statute governing probation violations. See id. § 908.11.

      Significantly, the earned-time-credit statute expressly provides that

earned time also accrues for “[t]ime served in a jail or another facility . . .

credited against the sentence.” Id. § 903A.2(3). No provision applicable

to Allensworth within section 903A.2 or elsewhere extends earned-time

credit to supervised probation while the offender is not incarcerated.

Accordingly, we see no textual basis for awarding earned-time credit for

time on supervised probation. As the district court correctly concluded,

earned time must be “earned” in an IDOC facility. If the legislature had
                                      9

intended earned time to accrue while the offender is on probation, it

would have said so.

      B. Jail-Time Credit.       Section 903A.5 governs “jail time” credit.

This statute provides in part:

      An inmate shall not be discharged from the custody of the
      director of the Iowa department of corrections until the
      inmate has served the full term for which the inmate was
      sentenced, less earned time and other credits earned and not
      forfeited, unless the inmate is pardoned or otherwise legally
      released. . . . An inmate shall be deemed to be serving the
      sentence from the day on which the inmate is received into
      the institution. If an inmate was confined to a county jail or
      other correctional or mental facility at any time prior to
      sentencing, or after sentencing but prior to the case having
      been decided on appeal, because of failure to furnish bail or
      because of being charged with a nonbailable offense, the
      inmate shall be given credit for the days already served upon
      the term of the sentence.

Id. § 903A.5 (emphasis added).

      Section 903A.5 by its plain language provides a credit against the

prison sentence for time served in jail on the same charge. In calculating

Allensworth’s tentative discharge date, IDOC has already reduced his

prison sentence by his jail time with earned time credit accruing both for

his time in jail and in prison. Earned-time credit accrues for time served

“in a jail or another facility” when such jail time is credited against the

sentence as expressly provided in section 903A.2(3).           We held in

Anderson that his “home is not a ‘jail or other correctional facility.’

Section 903A.5(1) does not entitle Anderson to sentencing credit for time

spent under home supervision and electronic monitoring.”         Anderson,

801 N.W.2d at 4.      Accordingly, because Allensworth’s street time falls

outside of sections 903A.2(3) and 903A.5, there is no textual basis for

extending the earned-time credit to his probationary period.
                                     10

      C. Section 907.3(3) Probation Credit. The statutory source for

the probation credit is Iowa Code section 907.3(3). See Anderson, 801

N.W.2d at 5. IDOC is allowing Allensworth day-for-day credit for his time

spent on supervised street probation. But, nothing in section 907.3(3)

allows earned-time credit to accrue while on probation outside the walls

of a jail or other correctional facility.   To the contrary, section 903A.2

explicitly limits earned-time accruing before placement in prison to

“[t]ime served in a jail or another facility.”      Iowa Code § 903A.2(3).

Allensworth was not serving time in an eligible facility during his days on

supervised probation.

      “ ‘The general rule is that, absent a specific provision allowing for

it, a court does not err by denying credit for time served on probation.’ ”

State v. Canas, 571 N.W.2d 20, 25 (Iowa 1997) (quoting Trecker v. State,

320 N.W.2d 594, 595 (Iowa 1982), superseded by statutory amendment,

1996 Iowa Acts ch. 1193, § 19, as recognized in Anderson, 801 N.W.2d at

4–5). The legislature amended section 907.3(3) in 1996 by adding the

sentence requiring credit for time spent on supervised probation.       See

Anderson, 801 N.W.2d at 4–5 (“The 1996 amendment added the

statutory authorization Trecker found lacking earlier.”). The amendment

allowing a sentencing credit for probation, however, did not also

authorize accrual of earned-time credit for time spent on probation. We

will not require the IDOC to recognize an earned-time credit the

legislature did not expressly allow.        See Canas, 571 N.W.2d at 25

(concluding that legislature’s failure to require a particular sentencing

credit “indicates the legislature did not intend to grant such credit”). The

probation credit found in section 907.3(3) does not entitle Allensworth to

the earned-time credit allowed in section 903A.2. We will not rewrite the
                                    11

statutes to provide a credit that is not there. As noted, the earned-time

credit accrues only while he is incarcerated.

       Because the operative statutory language in section 903A.2

governing earned-time credit is unambiguous, the rule of lenity does not

apply. See Kolzow, 813 N.W.2d at 739 (finding the rule of lenity did not

apply to the unambiguous statute).       Finally, we reject Allensworth’s

constitutional argument because the IDOC applied the unambiguous

language of Iowa Code section 903A.2 in calculating his tentative

discharge date and, thus, did not arbitrarily restrain Allensworth’s

liberty.

       IV. Conclusion.

       For the reasons set forth above, we conclude the district court

correctly rejected Allensworth’s claim for earned-time credit to be

accrued while he was on supervised probation. Earned-time credits are

only earned while the offender is incarcerated. We therefore affirm the

district court’s March 23 ruling.

       AFFIRMED.
