State v. Leahy , 301 Neb. 228 ( 2018 )


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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. LEAHY
    Cite as 
    301 Neb. 228
    State of Nebraska,        appellee, v.
    John R. Leahy III,     appellant.
    ___ N.W.2d ___
    Filed October 5, 2018.    No. S-17-1047.
    1.	 Sentences: Appeal and Error. Whether a defendant is entitled to credit
    for time served and in what amount are questions of law, subject to
    appellate review independent of the lower court.
    2.	 ____: ____. An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the trial
    court.
    3.	 ____: ____. Where a sentence imposed within the statutory limits is
    alleged on appeal to be excessive, the appellate court must determine
    whether a sentencing court abused its discretion in considering and
    applying the relevant factors as well as any applicable legal principles
    in determining the sentence to be imposed.
    4.	 Sentences. In determining a sentence to be imposed, relevant factors
    customarily considered and applied are the defendant’s (1) age, (2)
    mentality, (3) education and experience, (4) social and cultural back-
    ground, (5) past criminal record or record of law-abiding conduct,
    and (6) motivation for the offense, as well as (7) the nature of the
    offense and (8) the amount of violence involved in the commission of
    the crime.
    5.	 ____. The appropriateness of a sentence is necessarily a subjective
    judgment and includes the sentencing judge’s observation of the defend­
    ant’s demeanor and attitude and all the facts and circumstances sur-
    rounding the defendant’s life.
    6.	 ____. Generally, it is within a trial court’s discretion to direct that
    sentences imposed for separate crimes be served either concurrently or
    consecutively.
    7.	 Judges: Plea Bargains: Sentences. A judge is not bound to give a
    defendant the sentence recommended by a prosecutor under a plea
    agreement.
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    STATE v. LEAHY
    Cite as 
    301 Neb. 228
    Appeal from the District Court for Hitchcock County: David
    W. Urbom, Judge. Affirmed.
    Richard Calkins, of Calkins Law Office, for appellant.
    Douglas J. Peterson, Attorney General, and Sarah E. Marfisi
    for appellee.
    Heavican, C.J., Cassel, Stacy, Funke, and Papik, JJ., and
    Bishop and Welch, Judges.
    Papik, J.
    John R. Leahy III was serving a criminal sentence in
    Colorado when he was extradited to Nebraska to face charges
    here. Approximately 19 months later, Colorado authorities
    granted Leahy parole. After he was convicted of kidnapping
    and manslaughter in Nebraska, the district court determined
    he was not entitled to credit for time served prior to his
    parole in Colorado. Leahy now appeals the denial of credit
    for time served, the admission of an exhibit the district court
    received in the course of determining whether and to what
    extent he was entitled to credit for time served, and the con-
    secutive nature of his sentences. Having found no reversible
    error in any aspect of the district court’s sentencing of Leahy,
    we affirm.
    BACKGROUND
    Charges Against Leahy.
    In June 2015, the State filed an information charging Leahy
    with first degree murder for killing Austin Wright in the per-
    petration of a kidnapping or attempted kidnapping. Pursuant
    to a plea agreement, Leahy pleaded no contest to an amended
    information charging him with kidnapping and manslaughter.
    In accordance with the plea agreement, Leahy also pleaded no
    contest to an amended information in a separate case, charg-
    ing him with possession of methamphetamine with intent to
    deliver. As agreed, the State recommended concurrent sen-
    tences for all charges in both cases.
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    STATE v. LEAHY
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    301 Neb. 228
    According to the factual basis supplied by the State at
    the plea hearing, Leahy and Wright were acquaintances, and
    Wright stayed briefly at Leahy’s residence beginning February
    26, 2014. On March 7, Wright’s mother contacted Leahy.
    She had not seen Wright for several days and asked Leahy
    where he was. Leahy told Wright’s mother that Wright had
    shown up high “on something” at Leahy’s residence and that
    Wright could not stay there anymore. On March 8, Leahy told
    Wright’s mother that he had dropped Wright off near a motel
    in McCook, Nebraska, that day. On March 9, Wright’s mother
    filed a missing person’s report.
    On March 13 and 20, 2014, police interviewed Leahy. At
    that time, Leahy told officers that he had dropped Wright off
    near a motel in McCook. A search of Leahy’s residence on
    April 9 uncovered 26.82 grams of methamphetamine and a
    cell phone video of Leahy and Wright arguing about debts that
    Wright owed Leahy for drugs, among other things. The video
    was date stamped March 6.
    The day after the search, Leahy asked to talk to police.
    He admitted that under the pretense of going to McCook, he
    and another passenger took Wright in his car, that he forced
    Wright to cover his head with a sweatshirt, that he drove the
    car on a circuitous route intended to confuse Wright, and that
    he left Wright alone in an isolated rural area with no means
    of transportation. Before leaving, Leahy pointed Wright in the
    general direction of the nearest town, 8 miles away. The near-
    est inhabited dwelling was over 11⁄2 miles in nearly the oppo-
    site direction.
    After Leahy recounted those details, officers went to the
    area Leahy said he had left Wright. Nearby, officers found
    Wright’s naked body and some of his clothing. Authorities
    identified Wright using dental records, and an autopsy and
    forensic testing showed that he died of hypothermia some-
    time between early March 2014 and the date of discovery on
    April 11.
    The district court accepted Leahy’s pleas of no contest.
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    STATE v. LEAHY
    Cite as 
    301 Neb. 228
    Initial Sentencing Hearing.
    After the district court accepted Leahy’s pleas, it continued
    sentencing for preparation of a presentence investigation report
    (PSR). At the subsequent sentencing hearing, a dispute arose
    regarding the time-served calculation in the PSR. Leahy was
    serving a 3-year sentence in Colorado when he was charged
    in Nebraska for the current offenses. He was transported to
    Nebraska to await trial according to the interstate Agreement
    on Detainers, see 
    Neb. Rev. Stat. § 29-759
     (Reissue 2016), and
    began his incarceration in Nebraska on May 7, 2015. While
    still detained in Nebraska, Leahy was paroled by the State of
    Colorado on November 28, 2016. The PSR as initially prepared
    is not in the record, but arguments by counsel at the hearing
    suggest that it indicated Leahy was entitled to credit for all of
    the time he was detained in Nebraska prior to his convictions
    and sentencing.
    At the hearing, the State contended that Leahy should not
    receive credit for time he was detained in Nebraska prior to
    Colorado’s grant of parole on November 28, 2016. Leahy’s
    counsel did not dispute that Leahy was paroled by Colorado on
    November 28, but argued that Leahy should receive credit for
    any time he spent incarcerated in Nebraska awaiting trial on
    Nebraska charges. The district court scheduled another hearing
    to address credit for time served.
    Additional Hearing Addressing
    Credit for Time Served.
    At the next hearing, the State offered exhibit 51, which
    included a signed cover letter from a technician at the Colorado
    Department of Corrections, “Time/Release Operations.”
    The letter stated that Leahy was paroled from the Colorado
    Department of Corrections on November 28, 2016.
    Leahy’s counsel objected on foundation and hearsay, not-
    ing that he had not had the opportunity to question the author
    of the document. Leahy’s counsel further argued that Leahy
    may have completed his Colorado sentence earlier if he had
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    not been transported to Nebraska but that there was no way to
    know for certain, because no one was present to explain exhibit
    51. The district court ultimately overruled Leahy’s objection
    and received exhibit 51.
    In a subsequent written order, the district court ruled that
    Leahy would not receive credit toward his Nebraska sentences
    for the time beginning May 7, 2015, and ending November
    28, 2016, because his Colorado sentence was still running dur-
    ing that period. However, the district court did allow Leahy
    credit for time he served after he was paroled by the Colorado
    Department of Corrections.
    Sentencing Order.
    Almost 2 weeks after issuing its written order on the issue of
    time served, the district court held a sentencing hearing. At the
    hearing, the parties presented arguments, including aggravating
    and mitigating information from the PSR. The PSR reflected
    that Leahy was 22 years old at the time of the current offenses,
    that he was single with no children, that he left school after
    completing the 10th grade, and that at the time of his arrest for
    the current offenses, he had been employed at a drilling com-
    pany full time for 7 or 8 months.
    According to the PSR, Leahy was diagnosed with bipolar
    disorder as a youth but has never treated the condition with
    medication. Leahy reported that his mental health is good,
    though he admitted attempting suicide several times after his
    mother died. Leahy had used marijuana daily since age 12.
    Beginning at age 14, Leahy used methamphetamine intermit-
    tently until 2013, when he began using it every day. Leahy
    admitted to having a problem with drugs and to selling ille-
    gal drugs.
    Leahy’s criminal history began when he was convicted
    of pharmaceutical drug possession at age 14. Subsequently,
    Leahy was convicted of assault, minor in possession, fail-
    ure to appear, two felony drug possession charges, and false
    reporting. Regarding Wright, Leahy reported that he felt
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    “horrible” and never anticipated that Wright would die. He
    stated that he believed he deserved to “serve time just for what
    he did wrong, but not made an example of.” He expressed an
    intent to take advantage of educational opportunities during
    his incarceration.
    At the sentencing hearing, Leahy apologized for his actions.
    He admitted that he initially lied about Wright’s whereabouts,
    but he asked the district court to consider that he had since
    been honest and accepted responsibility through his no con-
    test pleas.
    Before pronouncing the sentences, the district court explic-
    itly stated that it had considered all of the customary factors
    enumerated in sentencing. The district court proceeded to
    reference information it obtained from the PSR. It remarked
    specifically on Leahy’s age, education, employment, criminal
    history, and use of drugs. Noting Leahy’s role in covering
    Wright’s head and taking him on a circuitous route in Leahy’s
    car before leaving him alone in a rural area, the district court
    observed that but for Leahy’s actions, Wright would still
    be alive. The district court stated that lesser sentences than
    the ones to be imposed would depreciate the seriousness of
    Leahy’s crimes and promote disrespect for the law.
    The district court sentenced Leahy to 24 to 30 years’ impris-
    onment for kidnapping and 18 to 20 years’ imprisonment for
    manslaughter. It ordered the sentences to run consecutively to
    each other and to the sentence of 8 to 10 years’ imprisonment
    that Leahy received in a separate case for the conviction of
    possession of methamphetamine with intent to deliver.
    ASSIGNMENTS OF ERROR
    Leahy assigns, rephrased, that the district court erred (1) in
    denying him credit for the time served in the Hitchcock County
    jail before November 28, 2016; (2) in receiving exhibit 51
    over his objection; and (3) in imposing excessive sentences by
    sentencing him to consecutive terms of imprisonment for the
    various convictions.
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    STATE v. LEAHY
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    301 Neb. 228
    STANDARD OF REVIEW
    [1] Whether a defendant is entitled to credit for time served
    and in what amount are questions of law, subject to appellate
    review independent of the lower court. See State v. Wills, 
    285 Neb. 260
    , 
    826 N.W.2d 581
     (2013).
    [2] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by
    the trial court. State v. Russell, 
    299 Neb. 483
    , 
    908 N.W.2d 669
     (2018).
    ANALYSIS
    Credit for Time Served.
    Leahy contends that he should have received credit for all
    the time he spent detained in Nebraska awaiting trial and sen-
    tencing on his Nebraska charges. Leahy argues that because
    he was detained in a Nebraska jail awaiting the disposition of
    the Nebraska charges, that entire time should be credited to his
    Nebraska sentences.
    Leahy’s argument, however, fails to account for the statute
    that governs whether and to what extent he is entitled to credit
    for time served or cases interpreting and applying that statute.
    
    Neb. Rev. Stat. § 83-1
    ,106(1) (Reissue 2014) states:
    Credit against the maximum term and any minimum term
    shall be given to an offender for time spent in custody as
    a result of the criminal charge for which a prison sentence
    is imposed or as a result of the conduct on which such a
    charge is based. This shall specifically include, but shall
    not be limited to, time spent in custody prior to trial,
    during trial, pending sentence, pending the resolution of
    an appeal, and prior to delivery of the offender to the
    custody of the Department of Correctional Services, the
    county board of corrections, or, in counties which do not
    have a county board of corrections, the county sheriff.
    (Emphasis supplied.)
    In prior cases interpreting and applying § 83-1,106(1), it
    has been held that if a defendant is serving a sentence on a
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    conviction for one offense while awaiting trial and sentenc-
    ing on an unrelated offense, he or she is not entitled to credit
    for time served on the sentence for the unrelated offense. For
    example, in State v. Baker, 
    250 Neb. 896
    , 
    553 N.W.2d 464
    (1996), a defendant was sentenced to a term of imprisonment
    for being a felon in possession of a firearm and, on that same
    day, charged with other offenses arising out of an unrelated
    murder. Even though the defendant was detained while await-
    ing trial and sentencing on the charges arising out of the mur-
    der, we held that he was not entitled to credit on his eventual
    sentence for the charges arising out of the murder so long as he
    was continuing to serve his sentence for being a felon in pos-
    session of a firearm. 
    Id.
    Similarly, in State v. McLeaney, 
    6 Neb. App. 807
    , 
    578 N.W.2d 68
     (1998), in a case much like this one, the Nebraska
    Court of Appeals held that an individual who was serving a
    Missouri sentence and was transported to Nebraska to face
    charges was not entitled to credit for time spent awaiting trial
    and sentencing in Nebraska. The Court of Appeals cited Baker
    and explained that § 83-1,106(1) “provides for credit for the
    time the offender is forced to be in custody as a result of
    the criminal charge for which sentence is imposed.” State v.
    McLeaney, 6 Neb. App. at 810, 578 N.W.2d at 70 (emphasis in
    original). Because the defendant in McLeaney was in custody
    because of the sentence in Missouri, the Court of Appeals con-
    cluded he was not entitled to credit for time served. We have
    subsequently cited the Court of Appeals’ opinion in McLeaney
    with approval. See State v. Hunnel, 
    290 Neb. 1039
    , 
    863 N.W.2d 442
     (2015).
    As Baker and McLeaney demonstrate, what matters in the
    credit for time served analysis is not whether Leahy was
    detained in Nebraska and awaiting trial and sentencing on
    Nebraska charges, but, rather, whether he was forced to be in
    custody because of those charges. As long as Leahy was serv-
    ing a sentence on another conviction while awaiting trial and
    sentencing on the Nebraska charges, he was not forced to be
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    in custody because of the Nebraska charges and is thus not
    entitled to credit for time served on his Nebraska sentences
    under § 83-1,106(1).
    On the question of whether Leahy was serving a sentence on
    another conviction while detained in Nebraska, there does not
    appear to be much of a dispute. Leahy concedes that he was
    serving a sentence in Colorado at the time he was transported
    to Nebraska to face charges here. Under Colorado law, Leahy
    would have continued to receive credit for time served on
    his Colorado sentence even while detained in Nebraska. Like
    Nebraska, Colorado has adopted the interstate Agreement on
    Detainers, which provides that time being served on a sentence
    continues to run while the prisoner is being made available for
    trial as required by the agreement. See 
    Colo. Rev. Stat. Ann. § 24-60-501
     (West 2015). See, also, Pleasant v. Tihonovich,
    
    647 P.2d 236
     (Colo. 1982) (holding prisoner serving Colorado
    sentence was entitled to credit for time he was in New Mexico
    pursuant to interstate Agreement on Detainers).
    While Leahy does not dispute that he was earning credit
    on his Colorado sentence until being paroled, he does assert
    that he may have been granted parole earlier had he not been
    transported to Nebraska. Leahy appears to take the position
    that he should receive credit for time served for any days he
    was detained in Nebraska after the date that Colorado authori-
    ties would have paroled him had he remained there. Leahy,
    however, cannot direct us to anything in the credit for time
    served statutes that would require courts to engage in the type
    of counterfactual inquiry he envisions in order to calculate
    credit for time served. Indeed, we have said that the credit for
    time served to which a defendant is entitled is “an absolute
    and objective number that is established by the record.” State
    v. Clark, 
    278 Neb. 557
    , 562, 
    772 N.W.2d 559
    , 563 (2009).
    The calculation of credit for time served would quickly lose
    any absolute and objective quality if sentencing courts were
    required to determine when a sentence would have ended as
    opposed to when it actually did.
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    Since Leahy was in custody because of his Colorado sen-
    tence up until he was paroled on November 28, 2016, the
    district court correctly denied him credit for time spent in
    custody prior to that date.
    Exhibit 51.
    Leahy also argues that the district court erred by receiving
    exhibit 51 in the course of one of the hearings regarding the
    credit for time served issue. Leahy objected to the exhibit at
    the hearing on foundation and hearsay grounds. On appeal,
    he argues that the exhibit should not have been admitted,
    because foundation was lacking and because its admission
    denied him his right to confrontation guaranteed by the Sixth
    Amendment to the U.S. Constitution.
    Initially, we note that it is difficult to discern how the dis-
    trict court’s receipt of exhibit 51 worked to Leahy’s detriment.
    The only assertion in exhibit 51 that the court appeared to rely
    on was the fact that Leahy was paroled on November 28, 2016.
    Leahy, however, does not contest that he was paroled on this
    date. Moreover, if anything, the district court’s receipt of infor-
    mation indicating the date of Leahy’s parole benefited Leahy,
    because the district court granted Leahy credit for time served
    after he was paroled on his Colorado sentence.
    In any event, Leahy’s arguments fail to account for the fact
    that exhibit 51 was received in the sentencing phase of the
    case. At the time exhibit 51 was received, Leahy’s pleas had
    already been accepted. The only thing left to be done at that
    point was to impose Leahy’s sentences, and the district court
    received exhibit 51 at a hearing set for the purpose of deter-
    mining whether Leahy would be entitled to credit for time
    served on that sentence.
    We have held that the traditional rules of evidence are
    relaxed during the sentencing phase and that evidence may
    be presented as to any matter that the court deems relevant
    to the sentence. See State v. Pullens, 
    281 Neb. 828
    , 
    800 N.W.2d 202
     (2011). Exhibit 51 related to whether and to
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    what extent Leahy was entitled to credit for time served and
    could thus be considered by the district court. In addition,
    even if we assume that Leahy’s objection to exhibit 51 on
    hearsay grounds was sufficient to preserve his argument that
    consideration of exhibit 51 violated his right to confrontation,
    we have held that the right to confrontation is inapplicable
    to sentencing proceedings. See State v. Galindo, 
    278 Neb. 599
    , 
    774 N.W.2d 190
     (2009). See, also, U.S. v. Powell, 
    650 F.3d 388
     (4th Cir. 2011) (collecting cases from federal cir-
    cuit courts holding that Confrontation Clause does not apply
    at sentencing). The district court did not err by receiving
    exhibit 51.
    Excessive Sentences.
    Finally, Leahy assigns that the district court erred in impos-
    ing excessive sentences. Leahy does not dispute that the sen-
    tences imposed were within statutory limits. Rather, he chal-
    lenges the consecutive nature of his sentences. We conclude
    that the district court did not commit reversible error in order-
    ing that Leahy’s sentences be served consecutively.
    [3-5] Where a sentence imposed within the statutory limits
    is alleged on appeal to be excessive, the appellate court must
    determine whether a sentencing court abused its discretion in
    considering and applying the relevant factors as well as any
    applicable legal principles in determining the sentence to be
    imposed. State v. Russell, 
    299 Neb. 483
    , 
    908 N.W.2d 669
    (2018). In determining a sentence to be imposed, relevant fac-
    tors customarily considered and applied are the defendant’s
    (1) age, (2) mentality, (3) education and experience, (4) social
    and cultural background, (5) past criminal record or record
    of law-abiding conduct, and (6) motivation for the offense,
    as well as (7) the nature of the offense and (8) the amount
    of violence involved in the commission of the crime. 
    Id.
    The appropriateness of a sentence is necessarily a subjective
    judgment and includes the sentencing judge’s observation of
    the defendant’s demeanor and attitude and all the facts and
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    circumstances surrounding the defendant’s life. State v. Steele,
    
    300 Neb. 617
    , 
    915 N.W.2d 560
     (2018).
    Leahy acknowledges that the district court expressly stated
    these considerations. However, he contends that the district
    court did not properly weigh the factors or fully consider them,
    especially as they apply to the decision to impose Leahy’s
    sentences consecutively rather than concurrently. In particular,
    Leahy argues that the district court neglected to consider his
    mentality, the motivation for the offenses, and the degree of
    violence involved, which, he contends, all amounted to mitigat-
    ing factors. We disagree with Leahy’s characterization of the
    district court’s analysis.
    Our review of the record shows that the district court prop-
    erly considered and applied the necessary sentencing factors.
    In sentencing Leahy, the district court reviewed the informa-
    tion, both aggravating and mitigating, in the PSR. It also heard
    detailed arguments from counsel. As noted, the district court
    specifically stated that it had considered all of the customary
    factors enumerated in sentencing. It then discussed specific
    facts pertaining to a majority of those factors. We do not find
    an abuse of discretion in the court’s consideration of the sen-
    tencing factors.
    [6,7] Nor do we find that the district court abused its dis-
    cretion in making Leahy’s sentences consecutive. Generally,
    it is within a trial court’s discretion to direct that sentences
    imposed for separate crimes be served either concurrently or
    consecutively. State v. Vanness, 
    300 Neb. 159
    , 
    912 N.W.2d 736
     (2018). Pursuant to the plea agreement, the State recom-
    mended that the district court impose concurrent sentences
    for Leahy’s offenses. As Leahy concedes, however, a judge is
    not bound to give a defendant the sentence recommended by
    a prosecutor under a plea agreement. See State v. Gonzalez-
    Faguaga, 
    266 Neb. 72
    , 
    662 N.W.2d 581
     (2003). And the dis-
    trict court specifically advised Leahy of this fact at the plea
    hearing. In light of the familiar sentencing factors set forth
    above and Leahy’s role in Wright’s death, we cannot say that
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    the district court abused its discretion in imposing consecu-
    tive sentences.
    CONCLUSION
    We find no basis to reverse any aspect of Leahy’s sentences.
    The district court correctly calculated the extent to which
    Leahy was entitled to credit for time served, did not err by
    receiving exhibit 51, and did not abuse its discretion by impos-
    ing consecutive sentences.
    A ffirmed.
    Miller-Lerman and Freudenberg, JJ., not participating.