State v. Harms , 304 Neb. 441 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/15/2019 09:06 AM CST
    - 441 -
    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. HARMS
    Cite as 
    304 Neb. 441
    State of Nebraska, appellee, v.
    Randy R. Harms, Jr., appellant.
    ___ N.W.2d ___
    Filed November 8, 2019.   No. S-18-1181.
    1. Sentences: Appeal and Error. Whether a defendant is entitled to credit
    for time served and in what amount are questions of law. An appellate
    court reviews questions of law independently 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. Sentences: Statutes. The calculation and application of credit for time
    served is controlled by statute. Different statutes govern depending on
    whether the defendant is sentenced to jail or prison.
    4. Sentences. Neb. Rev. Stat. § 47-503 (Reissue 2010) is intended to
    ensure that defendants receive all the credit against their jail sentence to
    which they are entitled—no less, and no more.
    5. Sentences: Prisoners: Time. When sentence is pronounced upon one
    already serving a sentence from another court, the second sentence does
    not begin to run until the sentence which the prisoner is serving has
    expired, unless the court pronouncing the second sentence specifically
    states otherwise. Thus, the applicable rule is that unless the court impos-
    ing a later independent sentence specifically states otherwise at the time
    of its pronouncement, the later sentence is to be served consecutively to
    any earlier imposed sentence or sentences.
    6. Sentences: Appeal and Error. An appellate court will not disturb a sen-
    tence imposed within the statutory limits absent an abuse of discretion
    by the trial court.
    7. Judgments: Words and Phrases. An abuse of discretion occurs when a
    trial court’s decision is based upon reasons that are untenable or unrea-
    sonable or if its action is clearly against justice or conscience, reason,
    and evidence.
    8. Sentences: Appeal and Error. Where a sentence imposed within the
    statutory limits is alleged on appeal to be excessive, the appellate court
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. HARMS
    Cite as 
    304 Neb. 441
    must determine whether a sentencing court abused its discretion in con-
    sidering and applying the relevant factors as well as any applicable legal
    principles in determining the sentence to be imposed.
    9. Sentences. In determining a sentence to be imposed, relevant factors
    customarily considered and applied are the defendant’s (1) age, (2) men-
    tality, (3) education and experience, (4) social and cultural background,
    (5) past criminal record or record of law-abiding conduct, and (6) moti-
    vation 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.
    10. ____. The appropriateness of a sentence is necessarily a subjective judg-
    ment and includes the sentencing judge’s observation of the defendant’s
    demeanor and attitude and all the facts and circumstances surrounding
    the defendant’s life.
    Appeal from the District Court for Seward County: James C.
    Stecker, Judge. Affirmed.
    Nicole J. Tegtmeier, Seward County Public Defender, for
    appellant.
    Douglas J. Peterson, Attorney General, and Jordan Osborne
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    Stacy, J.
    Randy R. Harms, Jr., was convicted of attempted possession
    of burglar’s tools, a Class I misdemeanor,1 and was sentenced
    to 1 year in jail with credit for 23 days served. Harms appeals,
    arguing his sentence was excessive and claiming he was enti-
    tled to additional jail credit. Finding no error, we affirm.
    FACTS
    2015 Convictions in Dawson County
    In 2015, Harms was convicted of multiple felony and mis-
    demeanor charges in Dawson County, Nebraska, and was
    1
    See Neb. Rev. Stat. §§ 28-201 and 28-508 (Reissue 2016).
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. HARMS
    Cite as 
    304 Neb. 441
    sentenced to a total of 40 to 120 months in the custody of the
    Nebraska Department of Correctional Services (DCS). Harms
    was released on parole in March 2018.
    2018 Conviction in Seward County
    Approximately 2 months later, on May 28, 2018, Harms was
    arrested in Seward County, Nebraska, and charged with one
    count of possession of burglar’s tools, a Class IV felony.2 He
    was lodged in the Seward County jail, and his bond was set at
    “$10,000—10%.”
    A few weeks later, Harms sent a jail “kite” form to the
    district court asking to “put in for a PR Bond.” Harms stated
    that his parole had been revoked and that he wanted to return
    to DCS custody, where he felt his access to medications and
    medical treatment would be better than in the Seward County
    jail. After a hearing on June 20, 2018, Harms was allowed to
    swear to a personal recognizance bond and was released from
    the Seward County jail directly into DCS custody.
    Harms ultimately pled no contest to attempted possession
    of burglar’s tools, a Class I misdemeanor.3 On November
    19, 2018, he was sentenced to 1 year in the Seward County
    jail and was ordered to pay $2,000 in restitution upon his
    release. Harms was given credit for 23 days served. Harms
    asked the court to give him additional credit against his jail
    sentence for the 150 days he spent in DCS custody after he
    was released on bond from the Seward County jail. The court
    denied his request.
    Harms filed this timely appeal, which we moved to our
    docket on our own motion.
    ASSIGNMENTS OF ERROR
    Harms assigns, restated, that the district court erred by (1)
    awarding him insufficient credit for time served against his jail
    sentence and (2) imposing an excessive jail sentence.
    2
    § 28-508.
    3
    See §§ 28-201 and 28-508.
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. HARMS
    Cite as 
    304 Neb. 441
    STANDARD OF REVIEW
    [1] Whether a defendant is entitled to credit for time served
    and in what amount are questions of law.4 An appellate court
    reviews questions of law independently of the lower court.5
    [2] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court.6
    ANALYSIS
    Credit for Time Served
    Harms contends the district court erred in granting him only
    23 days of credit against his 1-year jail sentence. He argues he
    should have been given credit for 173 days—a figure he arrives
    at by adding together the 23 days he spent in the Seward
    County jail and the 150 days he spent in the custody of DCS
    before being sentenced in the instant case.
    [3] In Nebraska, the calculation and application of credit for
    time served is controlled by statute.7 Different statutes govern
    depending on whether the defendant is sentenced to jail or
    ­prison.8 Neb. Rev. Stat. § 47-503 (Reissue 2010) governs the
    credit to be given against a city or county jail sentence and
    provides in relevant part:
    (1) Credit against a jail term shall be given to any per-
    son sentenced to a city or county jail for time spent in jail
    as a result of the criminal charge for which the jail term is
    imposed or as a result of conduct upon which such charge
    is based. Such credit shall include, but not be limited to,
    time spent in jail:
    (a) Prior to trial;
    (b) During trial;
    4
    State v.   Phillips, 
    302 Neb. 686
    , 
    924 N.W.2d 699
    (2019).
    5
    State v.   Hunnel, 
    290 Neb. 1039
    , 
    863 N.W.2d 442
    (2015).
    6
    State v.   Steele, 
    300 Neb. 617
    , 
    915 N.W.2d 560
    (2018).
    7
    State v.   Bree, 
    285 Neb. 520
    , 
    827 N.W.2d 497
    (2013).
    8
    See 
    id. - 445
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. HARMS
    Cite as 
    304 Neb. 441
    (c) Pending sentence;
    (d) Pending resolution of an appeal; and
    (e) Prior to delivery of such person to the county board
    of corrections or, in counties which do not have a county
    board of corrections, the county sheriff.
    A different statute, Neb. Rev. Stat. § 83-1,106 (Reissue
    2014), governs the credit to be given against a prison sentence
    ordered to be served in the custody of DCS. The statutes are
    similar in many respects, but because Harms was sentenced to
    a term of imprisonment in the county jail, and not DCS, the
    credit to which Harms is entitled is governed by § 47-503, not
    § 83-1,106.
    Section 47-503(1) authorizes credit for “time spent in jail
    as a result of the criminal charge for which the jail term is
    imposed or as a result of conduct upon which such charge is
    based.” Here, the record confirms Harms spent a total of 23
    days in jail on the criminal charge of possession of burglar’s
    tools. The sentencing court gave Harms credit for those 23
    days, but Harms contends he was entitled to more.
    He asserts that after bonding out of jail on the Seward
    County charge, he returned immediately to DCS custody on the
    parole violation. He argues his parole on the Dawson County
    sentences was revoked “as a result of” the conduct upon which
    the Seward County charges were based, and he contends he is
    thus entitled to receive credit against his 1-year jail sentence
    for the time he spent in DCS custody. We disagree.
    After Harms bonded out of jail on the Seward County charge
    of possession of burglar’s tools, he was no longer “in jail as a
    result of the criminal charge for which the jail term [was]
    imposed or as a result of conduct upon which such charge
    [was] based.” He was, instead, in DCS custody completing fel-
    ony sentences on different convictions out of Dawson County.
    It may be true that his parole on the Dawson County sentences
    was revoked because his criminal conduct in Seward County
    also amounted to a violation of his parole, but Harms was in
    DCS custody on the Dawson County sentences, and he was
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. HARMS
    Cite as 
    304 Neb. 441
    receiving credit against those sentences. Section 47-503 does
    not authorize presentence credit against a jail sentence for time
    spent in DCS custody serving a separate sentence.9
    [4] Section 47-503 is intended to ensure that defendants
    receive all the credit against their jail sentence to which they
    are entitled—no less, and no more.10 By giving Harms credit
    for the 23 days he spent in jail as a pretrial detainee on the
    Seward County charge, the sentencing court gave Harms all the
    jail credit to which he was entitled under § 47-503.
    Further, we note that if Harms were given credit against
    both his DCS sentence and his jail sentence for the 150 days
    he spent in DCS custody, the result would be that some of
    his jail sentence on the Seward County conviction would be
    served concurrently with his prison sentences on the Dawson
    County convictions. But the sentencing court did not order
    the jail sentence to be served concurrently with any portion
    of the prison sentences Harms was already serving out of
    Dawson County.
    [5] “‘When sentence is pronounced upon one already serv-
    ing a sentence from another court, the second sentence does
    not begin to run until the sentence which the prisoner is serving
    has expired, unless the court pronouncing the second sentence
    specifically states otherwise.’”11 Thus, the applicable rule is
    that unless the court imposing a later independent sentence
    specifically states otherwise at the time of its pronouncement,
    the later sentence is to be served consecutively to any earlier
    imposed sentence or sentences.12 For the sake of completeness,
    9
    Accord State v. Leahy, 
    301 Neb. 228
    , 234-35, 
    917 N.W.2d 895
    , 900 (2018)
    (recognizing that “if a defendant is serving a sentence on a conviction for
    one offense while awaiting trial and sentencing on an unrelated offense,
    he or she is not entitled to credit for time served on the sentence for the
    unrelated offense”).
    10
    State v. Clark, 
    278 Neb. 557
    , 
    772 N.W.2d 559
    (2009).
    11
    State v. McNerny, 
    239 Neb. 887
    , 889, 
    479 N.W.2d 454
    , 456 (1992),
    quoting Harpster v. Benson, 
    216 Neb. 776
    , 
    345 N.W.2d 335
    (1984).
    12
    McNerny, supra note 11.
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. HARMS
    Cite as 
    304 Neb. 441
    we point out the rule is otherwise where multiple sentences
    are imposed at the same time. In such event, unless the court
    specifically states otherwise at the time the sentences are pro-
    nounced, they run concurrently with each other.13
    Here, the district court sentenced Harms while he was still
    serving the prison sentences on his Dawson County convic-
    tions. Because the district court did not specifically state
    that Harms’ jail sentence was to be served concurrently with
    his earlier prison sentences, it must be served consecutively.
    Harms may not use the jail credit statutes to accomplish indi-
    rectly what the district court did not order specifically.
    Sentence Not Excessive
    Attempted possession of burglar’s tools is a Class I
    misdemeanor,14 punishable by a maximum of 1 year’s impris-
    onment, a $1,000 fine, or both.15 Harms’ 1-year jail sentence
    was thus within the statutory limits.
    [6,7] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court.16 An abuse of discretion occurs when a trial court’s
    decision is based upon reasons that are untenable or unreason-
    able or if its action is clearly against justice or conscience,
    reason, and evidence.17
    Harms argues the district court abused its discretion,
    because “a thorough examination of the record regarding the
    circumstances and background of [his] life fails to establish
    a basis” for imposing the maximum allowable sentence.18 We
    disagree.
    13
    State v. Berney, 
    288 Neb. 377
    , 
    847 N.W.2d 732
    (2014); McNerny, supra
    note 11.
    14
    §§ 28-201 and 28-508.
    15
    Neb. Rev. Stat. § 28-106 (Reissue 2016).
    16
    Steele, supra note 6.
    17
    State v. Erickson, 
    281 Neb. 31
    , 
    793 N.W.2d 155
    (2011).
    18
    Brief for appellant at 15.
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. HARMS
    Cite as 
    304 Neb. 441
    When sentencing Harms, the court referenced his extensive
    criminal history, the circumstances of his crime, and his high
    risk to reoffend:
    I have reviewed the presentence investigation report.
    You’re 41 years of age. You have a GED. At the current
    time, you have no employment due to your incarceration,
    other than the employment within the facility.
    You have an extensive prior record, including four
    DUIs, four assaults, two possession of controlled sub-
    stances, four driving under revocation or driving under
    suspension, two criminal mischief, one terroristic threat,
    one violation of a protection order, theft. You’ve been to
    prison three times and to jail at least ten times.
    Your LS/CMI indicates a high risk to re-offend. The
    nature of this offense involved you being present where
    wire was stolen from a pivot, and there’s over $35,000 in
    damage that was caused.
    The Court does not understand how you can claim to
    have no responsibility for what occurred when you’re out
    there at the point where these thefts were taking place.
    Why would you be out there with burglar’s tools if you
    weren’t participating?
    The Court does not find that you’re a fit candidate for
    probation. A lesser sentence would depreciate the seri-
    ousness of your crime or promote disrespect for the law.
    There is a substantial risk that during a period of proba-
    tion you would engage in additional criminal conduct.
    For the conviction of attempted possession of burglar’s
    tools, a Class I misdemeanor, you’re sentenced to one
    year in the Seward County Jail.
    [8-10] 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
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. HARMS
    Cite as 
    304 Neb. 441
    imposed.19 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 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.20 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 circumstances surrounding the
    defendant’s life.21
    Here, the record demonstrates the court considered all of the
    relevant sentencing factors and clearly articulated its rationale
    for imposing the 1-year jail sentence. We find no abuse of dis-
    cretion in the sentence imposed.
    CONCLUSION
    For the foregoing reasons, the judgment and sentence of the
    district court is affirmed.
    Affirmed.
    Freudenberg, J., not participating.
    19
    State v. Garcia, 
    302 Neb. 406
    , 
    923 N.W.2d 725
    (2019).
    20
    
    Id. 21 Id.