State v. Wal , 302 Neb. 308 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/22/2019 08:06 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    STATE v. WAL
    Cite as 
    302 Neb. 308
    State of Nebraska, appellee, v.
    A ngok B. Wal, appellant.
    ___ N.W.2d ___
    Filed February 22, 2019.   No. S-18-446.
    1.	 Statutes: Appeal and Error. Statutory interpretation is a question of
    law that an appellate court resolves independently of the trial court.
    2.	 ____: ____. 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 words which are plain, direct, and
    unambiguous.
    3.	 Statutes: Legislature: Intent. Components of a series or collection of
    statutes pertaining to a certain subject matter are in pari materia and
    should be conjunctively considered and construed to determine the
    intent of the Legislature, so that different provisions are consistent, har-
    monious, and sensible.
    4.	 Sentences: Probation and Parole. Under the plain language of 
    Neb. Rev. Stat. § 29-2268
    (2) (Reissue 2016), a trial court has only one option
    upon revoking a term of post-release supervision for noncompliance:
    imposing a term of incarceration up to the remaining period of post-
    release supervision.
    5.	 ____: ____. When a court has revoked post-release supervision, the
    maximum term of imprisonment that can be imposed is governed exclu-
    sively by 
    Neb. Rev. Stat. § 29-2268
    (2) (Reissue 2016) and does not
    depend on the maximum sentence of initial imprisonment authorized
    under 
    Neb. Rev. Stat. § 28-105
     (Reissue 2016).
    6.	 Sentences: Probation and Parole: Appeal and Error. Upon revocation
    of post-release supervision, a sentencing court has discretion under 
    Neb. Rev. Stat. § 29-2268
    (2) (Reissue 2016) to impose any term of impris-
    onment up to the remaining period of post-release supervision, and an
    appellate court will not disturb the court’s decision absent an abuse
    of discretion.
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    STATE v. WAL
    Cite as 
    302 Neb. 308
    Appeal from the District Court for Sarpy County: Stefanie
    A. M artinez, Judge. Affirmed.
    Jeffrey S. Leuschen and Liam K. Meehan, of Schirber &
    Wagner, L.L.P., for appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Stacy, J.
    Angok B. Wal pled guilty to a Class IV felony and was
    sentenced to 20 months’ imprisonment followed by 12 months’
    post-release supervision. Shortly after the period of post-
    release supervision began, the State moved to revoke, alleging
    Wal had violated several conditions. Wal admitted the viola-
    tions, after which the district court revoked the post-release
    supervision and imposed a term of 8 months’ imprisonment in
    the county jail.
    Wal appeals. He argues that because he has completed
    a 20-month prison sentence, the district court’s imposition
    of an 8-month jail term upon revoking post-release supervi-
    sion resulted in imprisonment for a total of 28 months for a
    Class IV felony, and therefore exceeded the maximum sentence
    of 24 months’ imprisonment authorized by law.1 Wal’s position
    fundamentally misconstrues the applicable statutory scheme,
    and we reject it as meritless. Finding no abuse of discretion in
    the imposition of an 8-month jail term, we affirm.
    BACKGROUND
    In June 2016, Wal was charged with one count of criminal
    mischief, one count of obstructing a peace officer, and one
    1
    See 
    Neb. Rev. Stat. § 28-105
     (Reissue 2016).
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    STATE v. WAL
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    302 Neb. 308
    count of obstructing government operations. In November, he
    entered a guilty plea to an amended information charging only
    criminal mischief (a Class IV felony) and obstruction of gov-
    ernment operations (a Class I misdemeanor). The maximum
    sentence for a Class IV felony is 24 months’ imprisonment and
    12 months’ post-release supervision.2 The maximum sentence
    for a Class I misdemeanor is 12 months’ imprisonment and a
    fine of $1,000.3
    Wal was sentenced to 20 months’ imprisonment and 12
    months’ post-release supervision on the felony conviction and
    to a concurrent term of 12 months’ imprisonment on the
    misdemeanor. The order of post-release supervision included
    conditions requiring Wal to report regularly as directed by his
    probation officer, provide proof of employment, abstain from
    the use of alcohol, obtain a chemical dependency or mental
    health examination, submit to regular drug and alcohol testing,
    and perform 60 hours of community service.
    On July 3, 2017, Wal was released from prison and began
    his period of post-release supervision. Almost immediately, he
    failed to comply with the conditions of that supervision. On
    October 5, the State filed a motion seeking to revoke his post-
    release supervision. When Wal failed to appear in court on the
    motion, a warrant was issued for his arrest.
    On April 2, 2018, Wal was arrested on the warrant.
    Thereafter, he was arraigned on the motion to revoke and
    admitted violating the conditions of his post-release super-
    vision. The State’s factual basis indicated that after being
    released from prison, Wal failed to report for mandatory pro-
    bation appointments, failed to recharge the global positioning
    system monitor on his ankle, did not attend required appoint-
    ments or drug and alcohol testing, did not obtain a chemical
    dependency evaluation, did not attend drug treatment, did not
    2
    
    Id.
    3
    
    Neb. Rev. Stat. § 28-106
     (Reissue 2016).
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    STATE v. WAL
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    302 Neb. 308
    complete any community service hours, and did not pay his
    probation enrollment fees.
    The court found that Wal’s period of post-release supervi-
    sion began on July 3, 2017, and the parties eventually stipu-
    lated that Wal absconded from that supervision after just 14
    days. The court accepted Wal’s admission, found he had vio-
    lated the conditions of his post-release supervision, and set the
    matter for further disposition.
    At the dispositional hearing on April 25, 2018, the court
    revoked Wal’s post-release supervision and imposed a term
    of 8 months’ imprisonment in the county jail. Wal filed this
    timely appeal, and we moved the case to our docket on our
    own motion.
    ASSIGNMENT OF ERROR
    Wal assigns, restated, that after revoking his post-release
    supervision, it was error for the trial court to impose 8 months’
    imprisonment because doing so resulted in a total term of
    imprisonment that exceeded the statutory maximum for
    Class IV felonies.
    STANDARD OF REVIEW
    [1] Statutory interpretation is a question of law that an
    appellate court resolves independently of the trial court.4
    ANALYSIS
    Wal does not challenge either the finding that he violated his
    post-release supervision or the court’s decision to revoke his
    post-release supervision and impose a term of imprisonment.
    He challenges only the length of that imprisonment, arguing
    that when it is added to the prison sentence he already served,
    he will serve a total of 28 months’ imprisonment for a Class IV
    felony, when the maximum term of imprisonment authorized
    by § 28-105 is 24 months.
    4
    State v. Ralios, 
    301 Neb. 1027
    , 
    921 N.W.2d 362
     (2019).
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    STATE v. WAL
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    302 Neb. 308
    [2,3] In considering Wal’s arguments, we are guided by
    familiar rules of statutory construction. 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 words which are plain, direct, and unambiguous.5
    Components of a series or collection of statutes pertaining
    to a certain subject matter are in pari materia and should be
    conjunctively considered and construed to determine the intent
    of the Legislature, so that different provisions are consistent,
    harmonious, and sensible.6
    Post-release supervision remains a relatively new concept in
    Nebraska sentencing law.7 As defined by the Legislature:
    Post-release supervision means the portion of a split sen-
    tence following a period of incarceration under which
    a person found guilty of a crime upon verdict or plea
    is released by a court subject to conditions imposed by
    the court and subject to supervision by the [Office of
    Probation Administration].8
    Revocation of post-release supervision is governed by 
    Neb. Rev. Stat. § 29-2268
    (2) (Reissue 2016), which provides:
    If the court finds that a probationer serving a term of
    post-release supervision did violate a condition of his
    or her post-release supervision, it may revoke the post-
    release supervision and impose on the offender a term of
    imprisonment up to the remaining period of post-release
    supervision. The term shall be served in an institution
    under the jurisdiction of the Department of Correctional
    Services or in county jail subject to subsection (2) of sec-
    tion 28-105.
    [4] Under the plain language of § 29-2268(2), a trial court
    has only one option upon revoking a term of post-release
    5
    State v. McGuire, 
    301 Neb. 895
    , 
    921 N.W.2d 77
     (2018).
    6
    
    Id.
    7
    State v. Kennedy, 
    299 Neb. 362
    , 
    908 N.W.2d 69
     (2018).
    8
    
    Neb. Rev. Stat. § 29-2246
    (13) (Reissue 2016); Kennedy, 
    supra note 7
    .
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    STATE v. WAL
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    supervision for noncompliance: imposing a term of incarcera-
    tion up to the remaining period of post-release supervision.9
    Without this option, a defendant would be able to frustrate the
    goals of post-release supervision—and avoid serving the sec-
    ond portion of his or her split sentence—simply by refusing to
    comply with the terms of supervision.
    Here, Wal completed the first portion of his split sentence
    by serving 20 months’ imprisonment. But he failed to comply
    with the second portion of his split sentence, his post-release
    supervision, and the court revoked it. Wal contends that when
    a court revokes post-release supervision and imposes a term of
    imprisonment, it is constrained not only by the time remain-
    ing on post-release supervision, but, also, by the maximum
    term of imprisonment authorized by § 28-105 for the first
    portion of the split sentence. We reject this contention as
    inconsistent with the statutory scheme and the plain language
    of § 29-2268(2).
    [5] We hold that when a court has revoked post-release
    supervision, the maximum term of imprisonment that can be
    imposed is governed exclusively by § 29-2268(2) and does
    not depend on the maximum sentence of initial imprison-
    ment authorized under § 28-105. Upon revoking Wal’s post-
    release supervision, the district court was statutorily autho-
    rized to impose a term of imprisonment up to the remaining
    period of his post-release supervision, without regard to the
    amount of imprisonment ordered on the first portion of his
    split sentence.
    [6] Because a sentencing court has discretion under
    § 29-2268(2) to impose, upon revocation, any term of impris-
    onment up to the remaining period of post-release supervi-
    sion, an appellate court will not disturb that decision absent
    an abuse of discretion. At the dispositional hearing in this
    case, the parties did not dispute the period of time remaining
    on Wal’s post-release supervision. Wal had been sentenced
    9
    See Kennedy, 
    supra note 7
    .
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    STATE v. WAL
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    302 Neb. 308
    to 12 months’ post-release supervision, and the parties stipu-
    lated he had served only 14 days of that supervision before
    absconding. Thus, on the day revocation was ordered, Wal had
    considerably more than 8 months remaining on his term of
    post-release supervision. The district court’s order imposing
    a term of 8 months’ imprisonment was within the maximum
    term authorized by § 29-2268(2) and was not an abuse of dis-
    cretion. The order of the district court is affirmed.
    A ffirmed.