                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0887
                                 Filed July 9, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WILLIAM JAMES VARY,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Story County, Lawrence E. Jahn,

District Associate Judge.



       William Vary appeals the district court’s denial of his motion to grant jail

time credit for time served on probation. AFFIRMED.



       Shawn Smith of Shawn Smith, P.L.L.C., Ames, for appellant.

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

General, Special Litigation Division, for appellee.



       Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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POTTERFIELD, J.

      William Vary appeals the district court’s denial of his motion to grant jail

time credit for time served on probation pursuant to Anderson v. State, 801

N.W.2d 1, 5 (Iowa 2011).

I. Facts and Procedural Background

      On July 13, 2012, Vary pleaded guilty to operating while intoxicated, third

offense, in violation of Iowa Code section 321J.2 (2011).       The district court

sentenced Vary to an indeterminate term not to exceed five years, partially

suspended the sentence, and placed Vary on probation with the Center for

Creative Justice (CCJ) for a maximum of two years.

      One of the conditions of Vary’s probation required Vary to “[o]bey all laws.”

Vary failed to comply with that condition when he violated a no-contact order, to

which he pleaded guilty on December 11, 2013. Subsequently, on December 12,

2013, the district court revoked Vary’s probation, and imposed the prison

sentence.

      At the probation revocation hearing on December 11, 2013, the district

court verbally indicated Vary would receive Anderson credit against his prison

sentence for the time spent under the CCJ’s supervision. However, on April 23,

2014, following a hearing regarding credit for time served and upon further

review of Anderson and Iowa Code section 907.3(3), the district court determined

Vary was not entitled to credit because Vary’s probation was not supervised by

the judicial district department of correctional services (DCS). Vary appeals.
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II. Standard of Review

       Vary challenges the district court’s interpretation of Iowa Code sections

907.3(3) and 901B.1(a)(2) (2011).            We review a question of statutory

interpretation with regard to probation credit and its application to a sentence

calculation for correction of errors of law. State v. Allensworth, 823 N.W.2d 411,

413 (Iowa 2012). When we are asked to interpret a statute,

       our primary goal is to give effect to the intent of the legislature.
       That intent is evidenced by the words used in the statute. When a
       statute is plain and its meaning clear, courts are not permitted to
       search for meaning beyond its express terms. In the absence of
       legislative definition, we give words their ordinary meaning.

Anderson, 801 N.W.2d at 4 (citations omitted).

III. Discussion

       Vary’s claim that he is entitled to credit for probation time cannot be

sustained. Credit for time served while on probation supervision is allowed under

section 907.3(3), which provides:

       By record entry at the time of or after sentencing, the court may
       suspend the sentence and place the defendant on probation upon
       such terms and conditions as it may require including commitment
       to an alternate jail facility or a community correctional residential
       treatment facility to be followed by a term of probation as specified
       in section 907.7, or commitment of the defendant to the judicial
       district department of correctional services for supervision or
       services under section 901B.1 at the level of sanctions which the
       district department determines to be appropriate and the payment
       of fees imposed under section 905.14. A person so committed who
       has probation revoked shall be given credit for such time served.

Pursuant to section 907.3(3), a defendant is entitled to credit for time served only

if committed to an alternate jail facility, community correctional residential

treatment facility, or the judicial district department of correctional services. Our

supreme court in Anderson noted section 907.3(3) should be read in conjunction
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with Iowa Code section 901B.1 to determine if credit should be awarded.

Anderson, 801 N.W.2d at 5. Based upon this conjunctive analysis, the Anderson

court concluded,

      Level one sanctions are “[n]oncommunity-based corrections
      sanctions,” which include self-monitored sanctions and sanctions
      “which are monitored for compliance by other than
      the . . . department of correctional services.”         Iowa Code
      § 901B.1(1)(a). A defendant subjected to a level one sanction is
      not committed to correctional services “for supervision or services.”
      Id. §§ 901B.1(1)(a), 907.3(3). Accordingly, a defendant is not
      entitled to sentencing credit for level one sanctions.

Id. (emphasis added).      The CCJ is neither an alternate jail facility nor a

community correctional residential treatment facility. The CCJ is also not the

DCS. As Vary’s probation was “monitored for compliance by [an entity] other

than the . . . department of correctional services,” his probation is statutorily

defined as a level one sanction. Therefore, Vary is not entitled to credit for time

served.

      Vary contends he is, nonetheless, entitled to credit because the intensity

of supervision under the CCJ is similar to the intensity of supervision under level

two sanctions implemented by the DCS. He urges us to infer that the legislature

intended to give credit for sanctions at a level two intensity irrespective of

whether the CCJ or the DCS supervised the probation. This we cannot do. “In

construing statutes, the court searches for the legislative intent as shown by what

the legislature said, rather than what it should or might have said.” Id. at 6

(quoting Iowa R. App. P. 6.904(3)(m)). In this case, the legislature said credit

would be given if the defendant was committed to the DCS and a defendant who

is monitored for compliance by other than the DCS is under level one
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supervision.    “When a statute is plain and its meaning clear, courts are not

permitted to search for meaning beyond its express terms.” Id. at 3 (citations

omitted).

       This adherence to the plain meaning of the statute was emphasized in

Anderson. In Anderson, the defendant was placed “on probation to the Second

Judicial    District    Department       of    Correctional      Services      and     thereby

committed . . . to the DCS.”        Id. at 5.      The supreme court reasoned “when

sections 907.3(3) and 901B.1 are read together, a defendant is entitled to

sentencing credit ‘for such time served’ while he is committed to the DCS and

placed in level two or greater sanctions under section 901B.1.” Id. As Anderson

was committed to the DCS and placed in a level two or greater sanction under

Iowa Code section 901B.1, “the plain language of section 907.3(3), therefore,

entitle[d] Anderson to sentencing credit for his time served.” Id.1

       Here, Vary was placed under the supervision of the CCJ and, thereby,

monitored for compliance by an entity other than the DCS. According to section


1
  In the recent Supreme Court case, King v. Burwell, the Court notes that “when deciding
whether the language is plain, the Court must read the words ‘in their context and with a
view to their place in the overall statutory scheme.’” 576 U.S. __, No. 14-114, slip op. at
9 (U.S. June 25, 2015) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 133 (2000)). In King, when 42 U.S.C. section 18031, was read in the context of 42
U.S.C. section 18041, Internal Revenue Code section 36B was found to be ambiguous.
Id. at *4–5.
         However, in this case, when section 907.3(3) is read in context with section
901B.1 and the overall statutory scheme of Iowa Code Title XVI, Subtitle 3, the language
of 907.3(3) plainly indicates a criminal defendant is only entitled to jail time credit for time
served on probation if that defendant’s sanctions are at a level two or higher. Further,
while the ambiguities found by the Supreme Court are logical, finding ambiguity in
section 907.3(3) would require us to read so far between the lines that we would be
“indulging in judicial legislation and . . . invading the province of the Legislative branch of
the Government, or of the electorate in amending the basic law.” Anderson, 801 N.W.2d
at 6–7 (quoting Holland v. State, 253 Iowa 1006, 1011 (1962)). “We must accept the
statute as the legislature wrote it.” Id.
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901B.1(1)(a), this means Vary’s sanctions were level one.          As held by the

Anderson court, defendants under level one sanctions are not entitled to receive

credit for time served. Id. Therefore, in accordance with our precedent and

sections 901B.1(1)(a) and 907.3(3), Vary is not entitled to receive credit.

IV. Conclusion

       The express terms of section 907.3(3) and requirements of Anderson are

clear: only a defendant committed to the judicial district department of corrections

and subject to level two or greater sanctions is entitled to credit for time served.

As Vary’s probation supervision falls under the definition of level one sanctions,

he is not entitled to credit for time served.

       AFFIRMED.
