State v. Knight , 311 Neb. 485 ( 2022 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    06/10/2022 08:06 AM CDT
    - 485 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. KNIGHT
    Cite as 
    311 Neb. 485
    State of Nebraska, appellee, v.
    Joshua J. Knight, appellant.
    ___ N.W.2d ___
    Filed April 28, 2022.    No. S-21-544.
    1. Sentences: Appeal and Error. A sentence imposed within the statutory
    limits will not be disturbed on appeal in the absence of an abuse of dis-
    cretion by the trial court.
    2. Judges: Appeal and Error. When judicial discretion is exercised con-
    trary to law or to the commonly recognized legal principles, it indicates
    an abuse of discretion.
    3. Statutes: Judgments: Appeal and Error. The meaning of a statute is a
    question of law, on which an appellate court has an obligation to reach
    an independent conclusion irrespective of the decision made by the
    court below.
    4. Criminal Law: Legislature: Courts: Sentences. The power to define
    criminal conduct and fix its punishment is vested in the legislative
    branch, whereas the imposition of a sentence within these legislative
    limits is a judicial function.
    5. Sentences. A sentence is illegal when it is not authorized by the judg-
    ment of conviction or when it is greater or lesser than the permissible
    statutory penalty for the crime.
    6. Statutes: Appeal and Error. Statutory language is to be given its plain
    and ordinary meaning, and an appellate court will not resort to inter-
    pretation to ascertain the meaning of statutory words which are plain,
    direct, and unambiguous.
    7. Statutes. It is not within the province of the courts to read meaning
    into a statute that is not there or to read anything direct and plain out of
    a statute.
    8. Words and Phrases. As a general rule, the use of the word “shall” is
    considered to indicate a mandatory directive, inconsistent with the idea
    of discretion.
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. KNIGHT
    Cite as 
    311 Neb. 485
    9. Sentences: Probation and Parole. 
    Neb. Rev. Stat. § 29-2204.02
    (7)(a)
    (Reissue 2016) requires a sentencing court to advise an offender of
    the time to be served based on an assumption that no good time will
    be lost.
    10. Statutes: Words and Phrases. The word “include,” as used in a statute,
    connotes that the provided list of components is not exhaustive and that
    there are other items includable that are not specifically enumerated.
    11. Sentences: Probation and Parole: Time. Unless another statute pro-
    vides otherwise, where an offender is originally sentenced to post-
    release supervision and is later resentenced to confinement in a county
    jail following revocation of post-release supervision, the offender is
    entitled to good time reduction of his or her county jail sentence pursu-
    ant to 
    Neb. Rev. Stat. § 47-502
     (Reissue 2021).
    12. Sentences: Appeal and Error. An appellate court has the power on
    direct appeal to remand a cause for the imposition of a lawful sentence
    where an erroneous one has been pronounced.
    Appeal from the District Court for Buffalo County: Ryan
    C. Carson, Judge. Affirmed in part, and in part vacated and
    remanded with directions.
    D. Brandon Brinegar, Deputy Buffalo County Public
    Defender, for appellant.
    Douglas J. Peterson, Attorney General, and Siobhan E.
    Duffy for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Cassel, J.
    I. INTRODUCTION
    Joshua J. Knight appeals from a resentencing order that
    revoked his post-release supervision and incarcerated him in
    the county jail for 9 months, with credit for previous time
    served, but that expressly denied credit for future “good time.”
    He argues that this denial violated 
    Neb. Rev. Stat. § 47-502
    (Reissue 2021) (county jail good time). On appeal, the State
    agreed, and so do we. Therefore, we vacate that portion of
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. KNIGHT
    Cite as 
    311 Neb. 485
    his sentence and remand the cause with directions. Otherwise,
    we affirm.
    II. BACKGROUND
    Knight was originally convicted of assault by a confined
    person, a Class IIIA felony, and initially sentenced to a 1-year
    term of imprisonment followed by 18 months of post-release
    supervision. Knight completed his prison term and was then
    released on his post-release supervision.
    Ten months into Knight’s post-release supervision, the State
    filed a motion to revoke it. It alleged that Knight violated par-
    ticular conditions of his post-release supervision.
    At a hearing, Knight voluntarily and knowingly admitted
    to the State’s allegations. The district court accepted Knight’s
    admissions and found that he violated those conditions of
    his post-release supervision. The court ordered that Knight
    be resentenced.
    Following a sentencing hearing, the court issued a written
    sentencing order, revoking Knight’s post-release supervision
    and sentencing him to a term of incarceration of 9 months in
    the “Buffalo County Jail.” The court gave Knight a 27-day
    credit for time already served, but found that “[he did] not
    qualify for good time credit.”
    On the record at the sentencing hearing, the court explained
    its reasoning. The court stated: “So with the credit that I’ve
    given you and because it’s post-release supervision, you don’t
    qualify for good time credit, you will serve 243 days in jail,
    which just so happens to take you about to the end of your
    post-release supervision . . . .”
    Knight filed a timely appeal to the Nebraska Court of
    Appeals. We moved his appeal to our docket. 1 Later, in response
    to our order to show cause, Knight established, and the State
    did not dispute, that his county jail sentence was interrupted
    by another sentence by a different court and remained partially
    unserved pending completion of the other sentence.
    1
    See 
    Neb. Rev. Stat. § 24-1106
    (3) (Cum. Supp. 2020).
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. KNIGHT
    Cite as 
    311 Neb. 485
    III. ASSIGNMENT OF ERROR
    Knight assigns that the district court erred in ordering that
    he did not qualify for good time credit while serving his
    jail sentence.
    IV. STANDARD OF REVIEW
    [1,2] A sentence imposed within the statutory limits will not
    be disturbed on appeal in the absence of an abuse of discretion
    by the trial court. 2 When judicial discretion is exercised con-
    trary to law or to the commonly recognized legal principles, it
    indicates an abuse of discretion. 3
    [3] The meaning of a statute is a question of law, on
    which an appellate court has an obligation to reach an inde-
    pendent conclusion irrespective of the decision made by the
    court below. 4
    V. ANALYSIS
    Knight’s sole argument is that the court abused its discretion
    in finding that he did not qualify for good time, because doing
    so violated § 47-502. The statute requires:
    Any person sentenced to or confined in a city or county
    jail, including any person serving a custodial sanction
    imposed in response to a parole or probation violation,
    shall, after the fifteenth day of his or her confinement,
    have his or her remaining term reduced one day for each
    day of his or her sentence or sanction during which he or
    she has not committed any breach of discipline or other
    violation of jail regulations. 5
    Knight asserts that § 47-502 applies to him, because the
    court ordered that he serve his sentence in the county jail,
    and that therefore, he must qualify for good time credit.
    Knight does not dispute that his sentence to 9 months of jail
    2
    State v. Blake, 
    310 Neb. 769
    , 
    969 N.W.2d 399
     (2022).
    3
    Dolen v. State, 
    148 Neb. 317
    , 
    27 N.W.2d 264
     (1947).
    4
    State v. Brown, 
    300 Neb. 57
    , 
    912 N.W.2d 241
     (2018).
    5
    § 47-502 (emphasis supplied).
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    STATE v. KNIGHT
    Cite as 
    311 Neb. 485
    confinement, after revocation of his post-release supervision,
    was within the statutory limits; rather, he asserts only that the
    feature of the sentencing order denying good time was contrary
    to law.
    The State agrees with Knight’s argument. In its brief, the
    State asserted that “[its] research did not reveal any statutory
    or case law authority for a sentencing court to order a defend­
    ant is not entitled to earn good time credit on his sentence
    when the sentence is being imposed upon the revocation of
    post-release supervision.” 6
    [4,5] The power to define criminal conduct and fix its pun-
    ishment is vested in the legislative branch, whereas the imposi-
    tion of a sentence within these legislative limits is a judicial
    function. 7 Accordingly, a sentence is illegal when it is not
    authorized by the judgment of conviction or when it is greater
    or lesser than the permissible statutory penalty for the crime. 8
    Because Knight does not attack any other aspect of his resen-
    tencing, we address only whether the denial of county jail good
    time was contrary to law and thus an abuse of discretion.
    While Knight relies solely upon § 47-502, we recognize that
    another statute could conceivably authorize the court’s action.
    Before addressing § 47-502, we first examine the statutes cre-
    ating the offense for which he was originally sentenced and
    governing imposition of post-release supervision. We next con-
    sider those addressing revocation of post-release supervision.
    We then turn to § 47-502. After reviewing the statutes, we will
    consider our case law.
    [6,7] In examining these statutes, we apply settled principles
    of statutory interpretation. Statutory language is to be given
    its plain and ordinary meaning, and an appellate court will not
    resort to interpretation to ascertain the meaning of statutory
    6
    Brief for appellee at 3.
    7
    State v. Kantaras, 
    294 Neb. 960
    , 
    885 N.W.2d 558
     (2016).
    8
    
    Id.
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. KNIGHT
    Cite as 
    311 Neb. 485
    words which are plain, direct, and unambiguous. 9 Similarly, it
    is not within the province of the courts to read meaning into a
    statute that is not there or to read anything direct and plain out
    of a statute. 10
    1. Statutes
    (a) Statutes Governing Original Sentence
    The statute creating the underlying offense—assault by a
    confined person—does not contain any language purporting
    to authorize a court to deny county jail good time. 11 It does
    mandate that certain sentences be served consecutively and
    imposes a limitation on credit for time spent in custody prior
    to sentencing. 12 But its language does not expressly authorize
    denial of county jail good time.
    [8,9] Another statute, 13 which governs imposition of sen-
    tences for Class IIIA felonies, except in circumstances not
    applicable here, 14 does not authorize denial of county jail good
    time. To the contrary, the only language of this statute bearing
    on good time suggests otherwise. In pertinent part, it states:
    (7)(a) When imposing a determinate sentence upon an
    offender under this section, the court shall:
    ....
    (iii) When imposing a sentence following revocation of
    post-release supervision, advise the offender on the record
    the time the offender will serve on his or her term of
    imprisonment, including credit for time served, assuming
    that no good time for which the offender will be eligible
    is lost. 15
    9
    State v. Taylor, 
    310 Neb. 376
    , 
    966 N.W.2d 510
     (2021).
    10
    
    Id.
    11
    See 
    Neb. Rev. Stat. § 28-932
     (Reissue 2016).
    12
    See § 28-932(2).
    13
    
    Neb. Rev. Stat. § 29-2204.02
     (Reissue 2016).
    14
    See § 29-2204.02(4).
    15
    § 29-2204.02(7)(a) (emphasis supplied).
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. KNIGHT
    Cite as 
    311 Neb. 485
    Notably, this statute uses the word “shall.” As a general rule,
    the use of the word “shall” is considered to indicate a manda-
    tory directive, inconsistent with the idea of discretion. 16 Thus,
    this statute requires a sentencing court to advise an offender of
    the time to be served based on an assumption that no good time
    will be lost. It does not suggest that the court may deny good
    time to the offender.
    (b) Revocation Statute
    The Nebraska Probation Administration Act (the act) 17 gov-
    erns Knight’s violation of his post-release supervision. While
    Knight was originally sentenced to post-release supervision
    rather than probation, the act defines probation to include post-
    release supervision. 18 It also defines probationer as a person
    sentenced to probation or post-release supervision. 19
    [10] The statute primarily governing revocation of post-
    release supervision under the act does not authorize a court
    to deny good time. 20 It does empower a court to revoke
    post-release supervision and “impose on the offender a term
    of imprisonment up to the original period of post-release
    supervision.” 21 Where a sentence of incarceration is imposed,
    this statute requires the court to “grant jail credit for any days
    spent in custody as a result of the post-release supervision,
    including custodial sanctions.” 22 The word “include,” as used
    in a statute, connotes that the provided list of components
    is not exhaustive and that there are other items includable that
    are not specifically enumerated. 23
    16
    State v. Madren, 
    308 Neb. 443
    , 
    954 N.W.2d 881
     (2021).
    17
    
    Neb. Rev. Stat. §§ 29-2246
     to 29-2269 (Reissue 2016, Cum. Supp. 2020 &
    Supp. 2021).
    18
    See § 29-2246(4).
    19
    See § 29-2246(5).
    20
    See, generally, § 29-2268.
    21
    § 29-2268(2).
    22
    Id.
    23
    State v. Hofmann, 
    310 Neb. 609
    , 
    967 N.W.2d 435
     (2021).
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. KNIGHT
    Cite as 
    311 Neb. 485
    By reference to a general punishment statute, 24 the post-
    release supervision revocation statute mandates that a sentence
    of less than 1 year—such as the 9-month sentence here—be
    served in the county jail. 25 Likewise, the general punishment
    statute does not contain any language suggesting that a sen-
    tencing court may deny good time. 26
    (c) § 47-502
    Section 47-502 prescribes the good time credit that a per-
    son must qualify to receive while sentenced to or confined
    in a county jail. As we have found regarding previous ver-
    sions of § 47-502, 27 the current version is plain, direct, and
    unambiguous.
    The statute mandates that “[a]ny person sentenced to or
    confined in a . . . county jail, including any person serving a
    custodial sanction imposed in response to a parole or probation
    violation, shall” qualify for good time. 28 Here again, the word
    “including” connotes that the provided list of components is
    not exhaustive and that there are other items includable that are
    not specifically enumerated. 29
    [11] We hold that unless another statute provides otherwise,
    where an offender is originally sentenced to post-release super-
    vision and is later resentenced to confinement in a county jail
    following revocation of post-release supervision, the offender
    is entitled to good time reduction of his or her county jail sen-
    tence pursuant to § 47-502. Neither party has identified any
    statutory basis for a blanket denial of good time in a sentence
    to county jail confinement following a revocation of post-
    release supervision.
    24
    See   
    Neb. Rev. Stat. § 28-105
    (2) (Cum. Supp. 2020).
    25
    See   § 29-2268(2).
    26
    See   § 28-105.
    27
    See   State v. Atkins, 
    250 Neb. 315
    , 
    549 N.W.2d 159
     (1996).
    28
    See   § 47-502 (emphasis supplied).
    29
    See   State v. Hofmann, 
    supra note 23
    .
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. KNIGHT
    Cite as 
    311 Neb. 485
    2. Case Law
    Our case law provides no support for the contested feature
    of the sentencing court’s order. We have discussed the require-
    ment of good time credit for time already spent in jail. 30 In the
    context of sentences to probation, we have rejected the notion
    that the county jail good time required by § 47-502 may be
    denied. 31 Over 30 years ago, we held that § 47-502 applied
    to time spent in the county jail awaiting sentencing. 32 Our
    decision there recited the early history of § 47-502, which,
    we explained, showed that the Nebraska Legislature was con-
    cerned about persons in county institutions serving longer sen-
    tences for lesser offenses than persons in state prison serving
    time for more serious offenses. 33
    At oral argument, Knight speculated that the trial judge may
    have relied on an opinion’s fleeting reference to good time
    during post-release supervision. 34 That reference, however, said
    nothing regarding county jail confinement after revocation of
    post-release supervision.
    3. Resolution and Disposition
    We hold that the court lacked statutory authority to order
    that Knight could not qualify for good time credit. Because
    the court ordered Knight to serve his sentence in the “Buffalo
    County Jail,” § 47-502 applied. The statute unambiguously
    required that Knight “shall” qualify for good time credit. No
    other statute authorized the court to deny Knight credit for
    good time. Therefore, that portion of the court’s sentence was
    contrary to law and constituted an abuse of discretion. 35
    30
    See State v. Wills, 
    285 Neb. 260
    , 
    826 N.W.2d 581
     (2013).
    31
    See, State v. Lobato, 
    259 Neb. 579
    , 
    611 N.W.2d 101
     (2000); State v.
    Salyers, 
    239 Neb. 1002
    , 
    480 N.W.2d 173
     (1992).
    32
    Williams v. Hjorth, 
    230 Neb. 97
    , 
    430 N.W.2d 52
     (1988).
    33
    See 
    id.
    34
    See State v. Artis, 
    296 Neb. 172
    , 
    893 N.W.2d 421
     (2017), modified on
    denial of rehearing 
    296 Neb. 606
    , 
    894 N.W.2d 349
    .
    35
    See Dolen v. State, supra note 3.
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    STATE v. KNIGHT
    Cite as 
    311 Neb. 485
    [12] On appeal, the parties request somewhat different relief,
    but the difference is largely theoretical. Knight requests that
    we “remand with appropriate directions to vacate that portion
    [denying good time credit] of the trial court’s [s]entencing
    [o]rder.” 36 The State asks that we “strike the portion of the
    district court’s order which states [Knight] does not qualify for
    good time credit and affirm the judgment of the district court
    as modified.” 37 We have said that an appellate court has the
    power on direct appeal to remand a cause for the imposition
    of a lawful sentence where an erroneous one has been pro-
    nounced. 38 Here, of course, only the denial of good time credit
    was erroneous.
    In a similar situation involving denial of good time, we
    vacated that portion of the sentencing order, remanded the
    cause with directions consistent with our opinion, and in all
    other respects, affirmed the sentence. 39 We follow the same
    course here.
    VI. CONCLUSION
    The portion of Knight’s sentence denying good time credit
    under § 47-502 is vacated and the cause is remanded with
    directions consistent with this opinion. In all other respects, the
    sentence is affirmed.
    Affirmed in part, and in part vacated
    and remanded with directions.
    36
    Brief for appellant at 9.
    37
    Brief for appellee at 3-4.
    38
    State v. Kantaras, 
    supra note 7
    .
    39
    See State v. Lobato, 
    supra note 31
    .