Schaeffer v. Gable , 314 Neb. 524 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/16/2023 09:05 AM CDT
- 524 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524Bernard Schaeffer, appellant, v. Craig Gable,
warden, Tecumseh State Correctional
Institution, and Scott Frakes,
director, Nebraska Department of
Correctional Services, appellees.
___ N.W.2d ___
Filed June 16, 2023. No. S-22-605.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. Habeas Corpus: Appeal and Error. On appeal of a habeas corpus peti-
tion, an appellate court reviews the trial court’s factual findings for clear
error and its conclusions of law de novo.
3. Statutes: Appeal and Error. The meaning and interpretation of statutes
are questions of law for which an appellate court has an obligation to
reach an independent conclusion irrespective of the decision made by
the court below.
4. Courts: Jurisdiction. Under the doctrine of jurisdictional priority, a
subsequent court that decides a case already pending in another court
with concurrent subject matter jurisdiction errs in the exercise of its
jurisdiction. Jurisdictional priority is a matter of neither subject mat-
ter jurisdiction nor personal jurisdiction. The subsequent court does
not lack judicial power over the general class or category to which the
proceedings belong and the general subject involved in the action before
the court.
5. Habeas Corpus: Pleadings: Jurisdiction. The failure to attach a copy
of the relevant commitment order to a petition for a writ of habeas
corpus does not prevent a court from exercising jurisdiction over
that petition.
6. Habeas Corpus. A writ of habeas corpus is a statutory remedy in
Nebraska that is available to those persons falling within the criteria
- 525 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524established by Neb. Rev. Stat. § 29-2801 (Reissue 2016), namely, those
who are detained without having been convicted of a crime and commit-
ted for the same, those who are unlawfully deprived of their liberty, or
those who are detained without any legal authority.
7. ____. A writ of habeas corpus under Neb. Rev. Stat. § 29-2801 (Reissue
2016) is generally available only when the release of the prisoner from
the detention the prisoner attacks will follow as a result of a decision in
the prisoner’s favor.
8. Sentences: Statutes: Time: Appeal and Error. The good time law to
be applied to a defendant’s sentences is the law in effect at the time the
defendant’s convictions become final, and a defendant’s convictions
and sentences become final on the date that the appellate court enters
its mandate concerning the defendant’s appeal from the convictions
and sentences.
Appeal from the District Court for Johnson County: Travis
P. O’Gorman, Judge. Affirmed.
Gerald L. Soucie, of Soucie Law Office, for appellant.
Michael T. Hilgers, Attorney General, and James D. Smith
for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ., and Srb, District Judge.
Miller-Lerman, J.
NATURE OF CASE
Bernard Schaeffer appeals the order of the district court
for Johnson County which denied his petition for a writ of
habeas corpus. In its order on appeal, the district court stated
that because another court had jurisdictional priority over the
issues raised in the petition, it believed it lacked jurisdiction.
Nevertheless, the district court proceeded to determine that
even if it had jurisdiction, Schaeffer’s petition failed on the
merits. We determine that the district court had jurisdiction to
determine the merits, and we affirm the district court’s deci-
sion rejecting the petition on its merits.
- 526 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524STATEMENT OF FACTS
In 1977, the district court for Hall County sentenced
Schaeffer to life imprisonment for his conviction for first
degree murder. Schaeffer was 17 years old at the time of the
offense. At the time of the sentencing, Schaeffer had been in
prison since May 26, 1977, in connection with the murder
charge. While serving the life sentence, Schaeffer was con-
victed and sentenced for additional felony charges. In 1979,
Schaeffer was sentenced to imprisonment for 1 to 2 years for
his conviction for assault, and in 1983, he was sentenced to
imprisonment for an additional 12 to 40 years for two addi-
tional convictions for assault. The assaults in the 1979 and
1983 cases were committed while Schaeffer was in prison.
Schaeffer was convicted and sentenced in the district court for
Lancaster County in each assault case. In sentencing Schaeffer
in each assault case, the court ordered that each sentence be
served consecutively to his other sentences, and no credit for
time served was applied to these sentences.
In 2016, Schaeffer was granted postconviction relief based
on Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L.
Ed. 2d 407 (2012) (holding unconstitutional mandatory life
sentence without parole for juveniles), and State v. Mantich,
287 Neb. 320, 842 N.W.2d 716 (2014) (holding that Miller v.
Alabama was retroactive for defendants serving life sentence
imposed for offense committed when defendant was juvenile).
In the postconviction proceeding, Schaeffer remained con-
victed but the district court for Hall County vacated Schaeffer’s
life sentence. On January 3, 2017, the district court for Hall
County resentenced Schaeffer to imprisonment for 70 to 90
years for the first degree murder conviction. The court granted
14,472 days’ credit against this sentence for time served since
Schaeffer’s arrest on May 26, 1977.
On January 31, 2022, Schaeffer, who was incarcerated at
the Tecumseh State Correctional Institution, filed a petition
for a writ of habeas corpus in the district court for Johnson
County. The dismissal of this petition gives rise to the instant
- 527 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524appeal. Schaeffer asserted that under relevant statutes, he had
reached his mandatory discharge date on January 3, 2022,
and he therefore moved for absolute discharge and release
from custody.
The district court ordered the respondents, Craig Gable, war-
den at the Tecumseh State Correctional Institution, and Scott
Frakes, director of the Nebraska Department of Correctional
Services (DCS), to show cause why the writ should not be
issued. In their show cause response, the respondents alleged
that DCS had correctly determined Schaeffer’s tentative man-
datory release date to be October 21, 2043, and that therefore,
Schaeffer was not currently eligible to be released from impris-
onment. The respondents noted that Schaeffer recognized that
the resentencing court had granted him credit against his sen-
tence for the murder conviction for the entire time (14,472
days) since his arrest in 1977 until the date of resentencing.
The respondents asserted that because all time served had been
credited to the murder sentence, the sentences for Schaeffer’s
assault felonies remained to be served, and that the good
time law in effect at the time those assault sentences were
imposed applied to the sentences. They argued that by claim-
ing that he had completed his sentences for the nonmurder
felonies, Schaeffer was attempting to receive credit twice for
the time served.
The respondents also asserted that the district court for
Johnson County did not have jurisdiction over the matter
“at this time” because Schaeffer had also previously filed an
action in the district court for Lancaster County in which he
challenged the calculation by DCS of his tentative mandatory
release date. The respondents stated that the district court for
Lancaster County had dismissed that action on October 22,
2021, but that Schaeffer’s appeal from the dismissal was still
pending. The respondents argued that the doctrine of “jurisdic-
tional priority” applied because the action in the district court
for Lancaster County had been filed first and that because
the actions involved substantially the same subject matter,
- 528 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524proceedings on the present petition could not be commenced in
the district court for Johnson County before the action in the
district court for Lancaster County was resolved.
On August 10, 2022, the district court for Johnson County
entered an order denying a writ of habeas corpus and dismiss-
ing Schaeffer’s petition. The district court agreed with the
argument of the respondents that the doctrine of jurisdictional
priority applied, and it determined that the pendency of the
proceedings in Lancaster County deprived it of jurisdiction in
the present matter. The district court further determined that
even if it had jurisdiction, Schaeffer’s petition for a writ of
habeas corpus failed on the merits. The court agreed with the
argument of the respondents that Schaeffer was erroneously
attempting to receive credit twice for time served. The court
determined that DCS had correctly calculated Schaeffer’s ten-
tative mandatory release date and that Schaeffer was not cur-
rently eligible for release.
Schaeffer appeals the order of the district court that denied
his petition for a writ of habeas corpus.
ASSIGNMENTS OF ERROR
Schaeffer claims that the district court erred when it (1) dis-
missed his petition for a writ of habeas corpus as barred under
the doctrine of jurisdictional priority and (2) denied his petition
for a writ of habeas corpus on the merits.
STANDARDS OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law. Ryan v. Ryan, 313 Neb. 938, 987 N.W.2d 620 (2023).
[2] On appeal of a habeas corpus petition, an appellate court
reviews the trial court’s factual findings for clear error and its
conclusions of law de novo. Childs v. Frakes, 312 Neb. 925,
981 N.W.2d 598 (2022).
[3] The meaning and interpretation of statutes are ques-
tions of law for which an appellate court has an obligation to
- 529 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524reach an independent conclusion irrespective of the decision
made by the court below. Id.ANALYSIS
District Court Did Not Lack Jurisdiction to Consider Merits
of Schaeffer’s Petition for Writ of Habeas Corpus,
and We Do Not Lack Jurisdiction to Review
District Court’s Ruling on Merits.
Schaeffer first claims that the court erred when it concluded
that the pending proceedings in Lancaster County deprived it
of jurisdiction. He generally argues that the doctrine of juris-
dictional priority did not apply, because the relief of habeas
corpus was not available to him until the date that he claims
he should have been released and that on such date, the court
in Lancaster County had already dismissed the proceedings
in that county. In their brief as appellees, the respondents do
not argue the issue regarding the district court’s application of
the doctrine of jurisdictional priority; instead, they argue that
Schaeffer failed to comply with the statutory requirement to
attach a copy of his commitment for the 1979 assault and that
such failure was an alternative reason to affirm the dismissal
of his petition for habeas corpus for lack of jurisdiction. We
determine that neither the doctrine of jurisdictional priority
nor Schaeffer’s failure to attach the 1979 commitment order
deprived the district court of jurisdiction to consider the merits
of Schaeffer’s petition for habeas corpus.
Although it determined it lacked jurisdiction, as we have
noted, the district court proceeded to consider the merits of
Schaeffer’s claim and concluded that even if it had jurisdic-
tion, Schaeffer’s claim failed on the merits. Before proceeding
to analyze the merits of Schaeffer’s claims, we must deter-
mine whether the district court had jurisdiction to rule on the
merits, because if it lacked jurisdiction, it could not rule on
the substance of the petition, and if the district court lacked
jurisdiction to determine the merits, we consequently lack
jurisdiction to review its ruling on the merits. See State ex
- 530 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524rel. Malone v. Baldonado-Bellamy, 307 Neb. 549, 950 N.W.2d
81 (2020) (stating that when trial court lacks jurisdiction to
adjudicate merits of claim, appellate court also lacks power
to determine merits of claim presented to lower court).
[4] Regarding jurisdictional priority, the district court
determined that it lacked jurisdiction over Schaeffer’s petition
for habeas corpus based on the doctrine of jurisdictional pri-
ority due to the pendency of Schaeffer’s action in the district
court for Lancaster County. We addressed the nature of the
doctrine of jurisdictional priority in Charleen J. v. Blake O.,
289 Neb. 454, 462-63, 855 N.W.2d 587, 595 (2014), in which
we stated:
Some confusion has developed from our failure to
always distinguish the improper exercise of jurisdic-
tion under judicial comity from a lack of subject matter
jurisdiction. We have sometimes said, under the doctrine
of jurisdictional priority, that a second court lacks “juris-
diction.” We mean that a subsequent court that decides
a case already pending in another court with concur-
rent subject matter jurisdiction errs in the exercise of
its jurisdiction. Jurisdictional priority is neither a matter
of subject matter jurisdiction nor personal jurisdiction.
The subsequent court does not lack judicial power over
the general class or category to which the proceedings
belong and the general subject involved in the action
before the court.
Therefore, even if this would have been an appropriate case
for the district court for Johnson County to exercise the doc-
trine of jurisdictional priority and refrain from deciding the
merits of Schaeffer’s petition for a writ of habeas corpus, a
failure to have refrained and to have proceeded to the merits
would merely have been an improper exercise of jurisdiction
rather than a decision made without jurisdiction.
Schaeffer generally argues that because the cases are dis-
tinguishable, the case in Lancaster County did not have juris-
dictional priority. Schaeffer states that the present habeas
- 531 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524corpus case could not have been filed before his alleged man-
datory release date of January 3, 2022, whereas the earlier-
filed Lancaster County case challenged DCS’ prospective
calculation of his tentative mandatory release date. That is,
the Lancaster County case was not a claim that he was cur-
rently being imprisoned without legal authority. Schaeffer also
notes that the district court for Lancaster County dismissed its
case on October 22, 2021, prior to the date Schaeffer filed this
petition for a writ of habeas corpus. However, as Schaeffer
acknowledges, an appeal of the Lancaster County case was
still pending at the time he filed his petition for a writ of
habeas corpus. We filed our opinion affirming the dismissal
of the Lancaster County case on January 27, 2023. Schaeffer
v. Frakes, 313 Neb. 337, 984 N.W.2d 290 (2023) (motion for
rehearing denied on May 10, 2023).
Because we have affirmed the dismissal of the Lancaster
County action and that action is no longer pending, there is
no reason of judicial comity for this court to avoid reviewing
the district court’s ruling on the merits in this habeas corpus
case. Therefore, whether as a matter of judicial comity, the
district court should have refrained from ruling on the merits
of Schaeffer’s claim, the district court did not lack jurisdic-
tion to consider the merits based on jurisdictional priority, and
we do not lack appellate jurisdiction to review its eventual
determination on the merits.
In urging us to affirm the order of the district court, as
noted above, the respondents do not rely on jurisdictional pri-
ority as a reason the district court lacked jurisdiction to con-
sider Schaeffer’s petition for a writ of habeas corpus. Instead,
the respondents note that Schaeffer did not attach a copy of
the sentencing commitment relating to his 1979 conviction
for felony assault to the petition. They argue that Neb. Rev.
Stat. § 29-2801 (Reissue 2016) requires attachment of the
commitment order and that Schaeffer’s failure to attach the
commitment order deprived the district court of jurisdiction
and justified denial of the petition.
- 532 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524[5] In O’Neal v. State, 290 Neb. 943, 951, 863 N.W.2d 162,
169 (2015), we held that “failure to attach a copy of the rele-
vant commitment order to a petition for a writ of habeas corpus
does not prevent a court from exercising jurisdiction over that
petition.” We recognized in O’Neal that we were not consid-
ering whether there were “nonjurisdictional consequences to
failing to attach a copy of the relevant commitment.” Id. In
this case, the respondents argue only that the failure to attach
the commitment deprived the district court of jurisdiction to
consider Schaeffer’s petition for a writ of habeas corpus. As
in O’Neal, we conclude that failure to attach the commitment
order did not deprive the district court of jurisdiction.
Neither jurisdictional priority nor failure to attach the
commitment order deprived the district court of jurisdiction
to consider the merits of Schaeffer’s petition for habeas cor-
pus. Therefore, the district court’s ruling on the merits was
made with jurisdiction and we have jurisdiction to review
the ruling.
District Court Did Not Err When
It Denied Petition for Writ of
Habeas Corpus on Merits.
Turning to the substance of this appeal, Schaeffer claims
the district court erred when it determined that Schaeffer’s
petition for a writ of habeas corpus failed on the merits.
The district court determined that Schaeffer’s claim that his
mandatory release date was January 3, 2022, failed because
Schaeffer was attempting to get credit twice for the time he
had served. While this determination is part of the relevant
analysis, we find it necessary to make a more comprehen-
sive review of the determination of Schaeffer’s release date
under the appropriate statutes, and following our review, we
conclude that Schaeffer’s claim for habeas corpus relief was
without merit.
[6] A writ of habeas corpus is a statutory remedy in
Nebraska that is available to those persons falling within
- 533 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524the criteria established by § 29-2801, namely, those who
are detained without having been convicted of a crime and
committed for the same, those who are unlawfully deprived
of their liberty, or those who are detained without any legal
authority. Johnson v. Gage, 290 Neb. 136, 858 N.W.2d 837(2015). Schaeffer generally alleged in his petition that he
was being detained without any legal authority, because he
was past the date on which, under Neb. Rev. Stat. § 83-1,118
(Cum. Supp. 2022), DCS was required to discharge him from
its custody because his “‘time served in the facility equal[ed]
the maximum term less good time.’” Section 83-1,118(3) pro-
vides that DCS “shall discharge a committed offender from
the custody of the department when the time served in the
facility equals the maximum term less good time.”
[7] We have noted that § 29-2801 speaks in terms of pres-
ent detention and that therefore, a writ of habeas corpus under
§ 29-2801 is generally available only when the release of the
prisoner from the detention the prisoner attacks will follow as
a result of a decision in the prisoner’s favor. See id. In Johnson
v. Gage, we determined that even if the court agreed with the
prisoner’s claim that he had completed his Nebraska sentences,
the prisoner would not be entitled to immediate release because
he would still be legally detained pursuant to a sentence from
another state; we stated that the relief the prisoner sought was
more in the way of a declaration that at some point in the
future, it would be illegal to detain him, and that such a pos-
sibility of future illegal detention is not the proper basis for a
writ of habeas corpus.
By contrast to Johnson v. Gage, in the present case, Schaeffer
claimed that if DCS had determined the application of good
time to his sentence as he urges, his mandatory release date
would have been January 3, 2022. Therefore, if the court
agreed with Schaeffer’s claim, he would have been entitled
to immediate release at the time he filed his petition for a
writ of habeas corpus on January 31. Although we conclude
below that Schaeffer is not entitled to immediate release, we
- 534 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524believe the allegations in his petition were properly brought
in a petition for a writ of habeas corpus.
When considering the merits of Schaeffer’s claim, the dis-
trict court determined the claim lacked merit because Schaeffer
was “erroneously attempting to receive credit twice for time
served[,] which is expressly precluded by law,” and because
the sentences for Schaeffer’s “three additional felonies remain
to be fully served.” Based on these determinations, the court
concluded that DCS “correctly determined [Schaeffer’s] ten-
tative mandatory release date is October 21, 2042,” and that
therefore, Schaeffer was “not currently eligible to be released
from prison as a matter of law.” We note that the district court
in its order stated the tentative release date as being in 2042.
However, the DCS determination that is in the record shows a
date in 2043. In any event, for purposes of Schaeffer’s habeas
petition, the relevant determination is that Schaeffer had not
yet reached his mandatory release date.
We agree with the district court that one of the flaws in
Schaeffer’s claim that his mandatory release should have been
January 3, 2022, is that such release would require DCS to
credit the same increment of time served against both his
murder sentence and his felony assault sentences, which were
all ordered to be served consecutively. However, a more com-
prehensive consideration of DCS’ determination of Schaeffer’s
tentative release date and how it differed from Schaeffer’s own
determination of his mandatory release date is necessary to
support the district court’s finding that DCS correctly calcu-
lated Schaeffer’s tentative mandatory release date.
In their response to the show cause order, the respond­
ents attached a document showing how DCS determined that
Schaeffer’s tentative release date was October 21, 2043. After
the resentencing on the murder conviction on January 3,
2017, DCS calculated Schaeffer’s tentative release date by
aggregating the maximum sentence for the murder conviction
and the maximum sentences for the three assault convictions
Schaeffer received in 1979 and 1983 and applying good time
- 535 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524based on 1975 Neb. Laws, L.B. 567, the good time law in
effect when Schaeffer was sentenced for the assaults in 1979
and 1983.
In his petition, Schaeffer asserted that he had reached his
mandatory release date on January 3, 2022. He determined
this date based on the premise that he had completed his three
assault sentences prior to the resentencing on the murder con-
viction in 2017. Schaeffer therefore included only the murder
sentence in his release determination, and he applied good
time based on 2011 Neb. Laws, L.B. 191, the good time law in
effect when he was resentenced in January 2017. This calcula-
tion was erroneous.
The determination of Schaeffer’s tentative release date by
DCS and the determination of Schaeffer’s mandatory release
date by Schaeffer differed in two significant respects: (1)
whether the four sentences Schaeffer received from the time of
his initial incarceration in 1977 through 2017 should be aggre-
gated or whether only the murder sentence should be included
in the determination and (2) whether the L.B. 567 version
of good time law applies or whether the L.B. 191 version of
good time law applies. As set forth below, we determine that
DCS was correct when it aggregated the four sentences and
when it applied the L.B. 567 version of the good time law in
effect when the first sentence, i.e., that for the 1979 assault,
became final.
Before addressing the issues more precisely, we note that
the calculation of Schaeffer’s tentative release by DCS is nec-
essarily a function of sentences that were imposed and, more
specifically, that DCS’ authority to detain Schaeffer derived
from court-ordered sentences that Schaeffer had received at
the time DCS made its determination. Therefore, after the
resentencing in January 2017, DCS needed to look to the
court-ordered sentences that Schaeffer had received since
Schaeffer’s detention began in 1977. Schaeffer had received
four final sentences since 1977—the first assault sentence
in 1979, the two additional assault sentences in 1983, and
- 536 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524the murder resentencing in 2017. DCS’ authority to detain
Schaeffer arose from those court-ordered sentences, and there-
fore, DCS needed to determine Schaeffer’s tentative release
date based on those orders.
In the 2017 resentencing order, the district court credited
14,472 days—representing the time Schaeffer had been in
detention since 1977 until his 2017 resentencing—against the
murder sentence. Therefore, DCS has before it four sentences,
with credit against one of those sentences for time served
since 1977. Part of Schaeffer’s argument is that DCS should
have treated some of that time as having been spent serving
the assault sentences. However, under the relevant statutes,
DCS does not have authority to determine how time served is
to be credited and instead must follow court orders crediting
such time.
The crediting of time served is governed by Neb. Rev. Stat.
§ 83-1,106 (Reissue 2014), which provides in relevant part
as follows:
(1) Credit against the maximum term and any mini-
mum 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 [DCS], the county board of
corrections, or, in counties which do not have a county
board of corrections, the county sheriff.
....
(3) If an offender is serving consecutive or concur-
rent sentences, or both, and if one of the sentences is set
aside as the result of a direct or collateral proceeding,
credit against the maximum term and any minimum term
of the remaining sentences shall be given for all time
- 537 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524served since the commission of the offenses on which
the sentences set aside were based.
....
(5) Credit for time served shall only be given in accord­
ance with the procedure specified in this subsection:
(a) Credit to an offender who is eligible therefor under
subsections (1), (2), and (4) of this section shall be set
forth as a part of the sentence; or
(b) Credit to an offender who is eligible therefor under
subsection (3) of this section shall only be given by the
court in which such sentence was set aside by entering
such credit in the final order setting aside such sentence.
Subsection (5) of § 83-1,106 provides that credit for time
served is to be given only in accordance with the procedures
set forth in the subsection, and it provides two scenarios under
which such credit is given: subsection (5)(a) “as a part of the
sentence” or subsection (5)(b) when a sentence is set aside and
time served against that sentence is credited against remain-
ing sentences, “by the court in which such sentence was set
aside by entering such credit in the final order setting aside
such sentence.” Thus, the statute is clear that the credit for
time served is given by a court, either when imposing a sen-
tence or when vacating a sentence and applying time served
on that sentence to remaining sentences. The statute does not
authorize DCS to elect the sentence to which time served
should be credited when it is determining a prisoner’s tenta-
tive release date. See, also, Gochenour v. Bolin, 208 Neb. 444,
303 N.W.2d 775 (1981) (stating that DCS had neither statutory
authority nor inherent authority to interrupt one sentence for
purpose of serving consecutive sentence).
Schaeffer argues in part that the resentencing court in 2017
may have improperly credited the entire time against the
murder sentence but that such error cannot now be cor-
rected because the State did not appeal it. But he also argues
that some of that time should be treated as credited against
the assault sentences. Schaeffer’s argument appears to ignore
- 538 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524§ 83-1,106(3) and (5). If under subsection (3), any time served
after Schaeffer’s arrest for the murder in 1977 was to be
transferred to the 1979 and 1983 assault sentences, then under
subsection (5), it should have been done in the order resulting
from the grant of postconviction relief in 2016. The record
does not indicate that when the postconviction court vacated
Schaeffer’s life sentence for the murder, it credited any time
served on the life sentence against the 1979 and 1983 assault
sentences; nor does the record indicate that Schaeffer appealed
the postconviction resentencing order to argue that credit for
time served on the vacated life sentence for murder should be
transferred to his 1979 and 1983 assault sentences. Therefore,
when determining Schaeffer’s tentative release date after the
2017 resentencing, DCS could only consider the court’s resen-
tencing order that credited time served since 1977 against the
murder sentence.
Schaeffer’s determination of a mandatory release date is
based in part on crediting time he served prior to the resentenc-
ing both against his assault sentences and against the murder
sentence he received as a result of the resentencing. Because
the assault sentences were ordered to be served consecutively
to other sentences and because the resentencing court credited
all time served against the murder sentence, the district court
in the present habeas corpus case was correct to state that
Schaeffer erroneously attempted to receive credit twice for the
same time served. However, as we noted above, a complete
analysis of whether DCS correctly determined Schaeffer’s ten-
tative release date requires additional considerations, and we
turn now to reviewing those issues.
DCS aggregated the maximum terms of Schaeffer’s four
sentences as part of its determination of Schaeffer’s tentative
release date. Neb. Rev. Stat. § 83-1,110(2) (Reissue 2014) pro-
vides, with respect to “[e]very committed offender sentenced
to consecutive terms, whether received at the same time or
at any time during the original sentence,” that “[t]he maxi-
mum terms shall be added to compute the new maximum
- 539 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524term which, less good time, shall determine the date when
discharge from the custody of the state becomes mandatory.”
This portion of § 83-1,110, with some minor variation in word-
ing, was part of the statute at the time of Schaeffer’s murder
conviction in 1977, his assault convictions and sentencings in
1979 and 1983, and his murder resentencing in 2017.
As discussed above, when determining a tentative release
date for Schaeffer after the resentencing in 2017, DCS needed
to consider all four sentences Schaeffer received since his
initial detention in 1977, because the court granted the credit
for time served since 1977 against the murder sentence, and
therefore, no time had been credited against the assault sen-
tences that were ordered to be served consecutively to other
sentences. Therefore, under § 83-1,110(2), when determining
the tentative date on which Schaeffer’s discharge from custody
would become mandatory, DCS was required to add the maxi-
mum terms for the four sentences together to compute a new
maximum term against which good time would be applied.
Therefore, we determine that DCS correctly aggregated the
four sentences and that Schaeffer’s determination of his man-
datory release date was erroneous in part because he included
the maximum term for only his murder sentence.
After adding the maximum terms together to compute a
new maximum term, the next step to determine the manda-
tory discharge date is to reduce that maximum for good time.
Because the statutes governing good time have been amended
over time and the good time law in effect when Schaeffer
was resentenced in 2017 differed from the good time law in
effect when Schaeffer was originally sentenced for murder in
1977 and when he was sentenced for the assaults in 1979 and
1983, it is necessary to determine which version of the good
time law should be applied to Schaeffer’s aggregated maxi-
mum term.
In his determination of his mandatory release date,
Schaeffer applied the L.B. 191 version of good time law on
the basis that it was the version that was in effect at the
- 540 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524time he was resentenced for the murder in 2017. Because the
murder sentence was the only sentence Schaeffer included
in his determination, he asserted that this court’s decisions
in State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017), and
State v. Nollen, 296 Neb. 94, 892 N.W.2d 81 (2017), required
application of the L.B. 191 version. However, these cases
are distinguishable.
[8] Both Smith and Nollen involved defendants whose origi-
nal life sentences for murder were vacated based on Miller v.
Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407(2012), and who were resentenced to imprisonment for terms
of years. At issue in both cases was which version of good
time law should apply to the defendant’s sentence—the version
in effect at the time of the original but now void sentencing
or the version in effect at the time of the resentencing. We
determined in Smith and Nollen that the original sentences
were unconstitutional and void under Miller v. Alabama and
that therefore, the defendants did not have final sentences until
they were resentenced. We cited State v. Schrein, 247 Neb.
256, 526 N.W.2d 420 (1995), for the propositions that the good
time law to be applied to a defendant’s sentences is the law in
effect at the time the defendant’s convictions become final and
that a defendant’s convictions and sentences become final on
the date that the appellate court enters its mandate concern-
ing the defendant’s appeal from the convictions and sentences.
We therefore concluded that the good time law to be applied
in Smith and Nollen was that in effect at the time that the
resentencing and any appeal from the resentencing were com-
pleted. Schaeffer therefore asserted that based on our holdings
in Smith and Nollen, the L.B. 191 version of good time law,
which was in effect when he was resentenced in 2017, applied
to his murder sentence.
However, Schaeffer’s determination of his mandatory
release date ignores the consecutive feature of the assault
sentences and is based on his erroneous contention that only
his murder sentence is still to be served. As we determined
- 541 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524above, the maximums of all four of Schaeffer’s sentences
are to be added to determine a new maximum term against
which the applicable good time law should be applied. Neither
Smith nor Nollen involved consecutive sentences that were
to be aggregated pursuant to § 83-1,110. As noted above,
our holdings in Smith and Nollen relied on State v. Schrein,
supra. Schrein also did not involve consecutive sentences that
needed to be aggregated for purposes of applying good time
law. In Schrein, we distinguished the facts of that case from
our decision in Boston v. Black, 215 Neb. 701, 340 N.W.2d
401 (1983), which we described in State v. Schrein, 247 Neb.
at 258, 526 N.W.2d at 421, as involving an issue regarding
“which good time law applied to those persons who were
serving consolidated sentences.” We note that when it deter-
mined Schaeffer’s tentative release date, DCS cited to Boston
for its application of L.B. 567 good time law to Schaeffer’s
aggregate sentence.
In Boston, we cited § 83-1,110 and described it as defining
“an offender’s sentence, for the purpose of good time compu-
tations, to be the sum of all sentences [the offender] receives,
regardless of when incurred,” and based on this requirement of
§ 83-1,110, we stated that “[t]he date of an offender’s initial
incarceration is the date on which service of such consolidated
sentence is deemed to begin.” 215 Neb. at 709-10, 340 N.W.2d
at 407. We further determined that the good time law to apply
to such a consolidated, or aggregated, sentence is that in effect
at the date of the “initial incarceration.” In Boston, we rejected
due process and equal protection challenges to application of
the earlier good time law to sentences that were part of the
aggregate sentence but that were received after a change had
been made to the good time law. We also reasoned that apply-
ing legislative amendments to good time law to previously
imposed sentences implicated separation of powers concerns
relating to pardon authority.
In the present case, we must reconcile the holdings in Smith
and Nollen, which were similar to the present case in that
- 542 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524they involved resentencing, with the holding in Boston, which
was similar to the present case in that it involved an aggregate
of sentences received both before and after a change in good
time law. Based on Smith and Nollen, Schaeffer’s murder sen-
tence did not become final until the 2017 resentencing that
occurred when the L.B. 191 version of good time law was in
effect. Under § 83-1,110, Schaeffer’s murder sentence must
be added with his assault sentences that became final in 1979
and 1983 to determine an aggregate maximum sentence. Under
Boston, the good time law applied to an aggregate sentence
is the version in effect at the time of the offender’s “initial
incarceration,” which would generally relate to the first sen-
tence imposed. The issue in this case is what good time law
applies when the first sentence in the aggregate is vacated as
unconstitutional and void and then resentencing for the first
conviction occurs after the subsequent sentences that form part
of the aggregate.
Resolving Boston and its reference to the offender’s “ini-
tial incarceration” in accord with Schrein and its holding that
good time law is determined when a sentence becomes final,
we read the “initial incarceration” under Boston to be the
time when the defendant is incarcerated and is being detained
pursuant to a final sentence. In the context of an aggregate
sentence, therefore, we read the time of the initial incarcera-
tion to be the time when the first of the aggregated sentences
becomes final.
In the present case, because of the resentencing, Schaeffer’s
murder sentence became final after the resentencing in 2017
rather than at the time of the original sentencing in 1977.
However, Schaeffer’s sentence for the first assault became
final in 1979 and his sentences for the two additional assaults
became final in 1983. Applying our understanding of the “ini-
tial incarceration” under Boston as set forth above, Schaeffer’s
“initial incarceration” for purposes of applying good time
law to his aggregate sentence occurred when the sentence for
the first assault became final in 1979. Therefore, the good
- 543 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
SCHAEFFER V. GABLE
Cite as 314 Neb. 524time law under L.B. 567 that was in effect in 1979 should be
applied to determine the good time law applied to Schaeffer’s
aggregate sentence to determine his mandatory release date.
We therefore conclude that DCS was correct when it applied
the L.B. 567 version of good time law to Schaeffer’s aggregate
sentence, and we reject Schaeffer’s application of the L.B. 191
version of good time law.
Summarizing our analysis, we determine DCS applied the
correct procedures when it determined Schaeffer’s tentative
release date, by aggregating the four sentences and applying
the L.B. 567 version of good time law that was in effect when
the first of the aggregated consecutive sentences became final
in 1979. Schaeffer’s claim for a writ of habeas corpus failed
to show that he was entitled to immediate discharge at the
time he filed his petition. Schaeffer did not set forth sufficient
facts to support his claim for a writ of habeas corpus, and we
conclude that the district court did not err when it determined
that Schaeffer’s claim failed on the merits and when it dis-
missed Schaeffer’s petition.
CONCLUSION
We conclude that the district court had jurisdiction to con-
sider the merits of Schaeffer’s petition for a writ of habeas cor-
pus and that therefore, we have jurisdiction to review the dis-
trict court’s ruling on the merits. We further conclude that the
district court did not err when it determined that Schaeffer’s
claim for habeas corpus relief was without merit. We therefore
affirm the district court’s order.
Affirmed.
Freudenberg, J., not participating.