State v. Wines , 308 Neb. 468 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    04/29/2021 08:08 AM CDT
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. WINES
    Cite as 
    308 Neb. 468
    State of Nebraska, appellee, v.
    Kevin M. Wines, appellant.
    ___ N.W.2d ___
    Filed February 19, 2021.   No. S-20-445.
    1. Sentences: Appeal and Error. Whether a defendant is entitled to credit
    for time served and in what amount are questions of law, subject to
    appellate review independent of the lower court.
    2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law, which an appellate court reviews independently of the
    lower court.
    3. Statutes: Intent. When interpreting a statute, the starting point and
    focus of the inquiry is the meaning of the statutory language, understood
    in context.
    4. 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.
    5. Statutes. It is not within the province of courts to read meaning into
    a statute that is not there or to read anything direct and plain out of
    a statute.
    6. ____. A court must attempt to give effect to all parts of a statute, and if
    it can be avoided, no word, clause, or sentence will be rejected as super-
    fluous or meaningless.
    7. ____. Statutes relating to the same subject matter will be construed
    so as to maintain a sensible and consistent scheme, giving effect to
    every provision.
    Appeal from the District Court for Madison County: Mark
    A. Johnson, Judge. Affirmed.
    Jack W. Lafleur, of Moyer, Moyer & Lafleur, for appellant.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. WINES
    Cite as 
    308 Neb. 468
    Douglas J. Peterson, Attorney General, and Kimberly A.
    Klein for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Papik, J.
    Kevin M. Wines appeals his sentences, arguing that the dis-
    trict court erred in its award of credit for time served. We find
    no error on the part of the district court and thus affirm.
    BACKGROUND
    2016 Case.
    This appeal involves several criminal proceedings against
    Wines. In the first such proceeding, commenced in 2016 (the
    2016 case), Wines entered pleas of guilty to one count of
    delivery of a controlled substance and one count of attempted
    delivery of a controlled substance.
    Following his convictions, Wines was sentenced to a term
    of probation and ordered to serve 90 days in jail. In July 2018,
    while still serving his term of probation, a search of Wines’
    residence revealed evidence of drug activity. Wines was there-
    after arrested and charged with multiple offenses.
    After the arrest, the State filed an information to revoke
    Wines’ probation in the 2016 case. In February 2019, the
    district court accepted Wines’ admission that he violated his
    probation, revoked his probation, and sentenced Wines on his
    original convictions. The district court sentenced Wines to
    4 to 8 years’ imprisonment for delivery of a controlled sub-
    stance and 1 to 2 years’ imprisonment for attempted delivery
    of a controlled substance. Wines was awarded 30 days’ credit
    for time served. The sentences were ordered to be served
    consecutively.
    2018 Case.
    As mentioned above, in addition to seeking to revoke
    Wines’ probation in the 2016 case, the State also filed another
    criminal case against Wines in 2018 (the 2018 case). In the
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. WINES
    Cite as 
    308 Neb. 468
    2018 case, Wines entered a plea of no contest to each of the fol-
    lowing charges: attempted possession of marijuana with intent
    to distribute, attempted tampering with evidence, attempted
    possession of tramadol, possession of ecstasy, and child abuse
    or neglect.
    In February 2019, the district court accepted Wines’ no con-
    test pleas and sentenced him to 2 to 3 years’ imprisonment for
    attempted possession of marijuana with intent to distribute, 6
    months’ imprisonment for attempted tampering with evidence,
    6 months’ imprisonment for attempted possession of tramadol,
    1 to 2 years’ imprisonment for possession of ecstasy, and 1
    year’s imprisonment for child abuse or neglect. Each of the
    sentences were ordered to be served consecutively to the other
    sentences imposed in the 2018 case, but concurrently with
    Wines’ sentences in the 2016 case. Wines was awarded 14
    days’ credit for time served.
    Wines timely appealed his sentences in both the 2016 case
    and the 2018 case.
    Court of Appeals.
    Wines’ initial appeal was decided by the Nebraska Court of
    Appeals. The Court of Appeals found plain error in both of the
    sentences in the 2016 case and two of the sentences in the 2018
    case. It otherwise affirmed.
    In the appeal of the 2016 case, the Court of Appeals found,
    among other things, that the district court should have imposed
    determinate sentences for both of Wines’ convictions. The
    Court of Appeals vacated the sentences imposed in the 2016
    case and remanded the cause with instructions to sentence
    Wines to determinate sentences.
    In the appeal of the 2018 case, the Court of Appeals also
    found that the district court should have imposed determinate
    sentences for Wines’ convictions for attempted possession of
    marijuana with intent to distribute and possession of ecstasy. It
    vacated those sentences and remanded the cause to the district
    court with instructions to impose determinate sentences for
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    Nebraska Supreme Court Advance Sheets
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    STATE v. WINES
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    those offenses. The Court of Appeals found no error in Wines’
    other sentences in the 2018 case.
    Sentencing Proceedings
    on Remand.
    In May 2020, the district court held a hearing at which it
    resentenced Wines in both the 2016 case and the 2018 case.
    After the district court stated that it would address the 2016
    case first, Wines’ counsel raised the issue of credit for time
    served. Counsel for Wines and counsel for the State agreed
    that Wines had served 451 days between the 2019 sentencing
    proceeding in both cases and the 2020 resentencing proceed-
    ing. In addition, Wines’ counsel explained that he received an
    additional 30 days’ credit for time served prior to the 2019 sen-
    tencing proceeding in the 2016 case. The district court went on
    to sentence Wines in the 2016 case. Wines was sentenced to 4
    years’ imprisonment with credit for 481 days served and a term
    of postrelease supervision for delivery of a controlled sub-
    stance and to 2 years’ imprisonment and a term of postrelease
    supervision for attempted delivery of a controlled substance.
    The sentences were ordered to be served consecutively.
    The district court then considered the 2018 case. Again,
    Wines’ counsel raised the issue of credit for time served,
    noting that Wines was given 14 days’ credit for time served
    in the 2018 case in the initial sentences. The district court
    then imposed sentences in the 2018 case. For the conviction
    of attempted possession of marijuana with intent to distrib-
    ute, the district court sentenced Wines to 24 months’ impris-
    onment, with credit for 14 days previously served, and a
    period of postrelease supervision. For the conviction of pos-
    session of ecstasy, the district court sentenced Wines to 12
    months’ imprisonment and a period of postrelease supervision.
    It ordered the two new sentences in the 2018 case to be served
    concurrently with one another. It also ordered the sentences
    in the 2018 case to be served concurrently with the sentences
    in the 2016 case. The district court’s sentencing order stated
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    STATE v. WINES
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    that the other sentences in the 2018 case “shall remain as sen-
    tenced previously.”
    Wines filed a timely notice of appeal in the 2018 case.
    ASSIGNMENT OF ERROR
    Wines assigns that the district court erred in its award of
    credit for time served in the 2018 case.
    STANDARD OF REVIEW
    [1] Whether a defendant is entitled to credit for time served
    and in what amount are questions of law, subject to appellate
    review independent of the lower court. State v. Phillips, 
    302 Neb. 686
    , 
    924 N.W.2d 699
     (2019).
    [2] Statutory interpretation presents a question of law,
    which an appellate court reviews independently of the lower
    court. 
    Id.
    ANALYSIS
    Wines argues that the district court failed to award him all
    of the credit for time served to which he was entitled for his
    sentences in the 2018 case. The district court awarded Wines
    14 days’ credit for time served on his sentence for attempted
    possession of marijuana with intent to distribute. Wines claims
    it should also have awarded him an additional 451 days’ credit
    for the time Wines was in custody between his initial sentenc-
    ing in February 2019 and his resentencing in May 2020. Wines
    acknowledges that the district court applied credit for time
    served for the time Wines was in custody between his 2019
    sentencing proceeding and his 2020 resentencing proceeding
    to his 4-year sentence for delivery of a controlled substance
    in the 2016 case. The issue in this case is thus whether Wines
    was entitled to have credit for time spent in custody between
    his 2019 sentencing proceeding and his 2020 resentencing pro-
    ceeding applied to two different sentences which were ordered
    to be served concurrently to one another.
    Wines and the State agree that any entitlement to credit
    for time served in this case is controlled by Neb. Rev. Stat.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. WINES
    Cite as 
    308 Neb. 468
    § 83-1,106 (Reissue 2014). As the entirety of § 83-1,106 is rel-
    evant to the parties’ arguments, we reprint it in full here:
    (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 the Department of Correctional
    Services, the county board of corrections, or, in counties
    which do not have a county board of corrections, the
    county sheriff.
    (2) Credit against the maximum term and any mini-
    mum term shall be given to an offender for time spent
    in custody under a prior sentence if he or she is later
    reprosecuted and resentenced for the same offense or for
    another offense based on the same conduct. In the case of
    such a reprosecution, this shall include credit in accord­
    ance with subsection (1) of this section for time spent in
    custody as a result of both the original charge and any
    subsequent charge for the same offense or for another
    offense based on the same conduct.
    (3) If an offender is serving consecutive or concurrent
    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 served
    since the commission of the offenses on which the sen-
    tences set aside were based.
    (4) If the offender is arrested on one charge and pros-
    ecuted on another charge growing out of conduct which
    occurred prior to his or her arrest, credit against the
    maximum term and any minimum term of any sentence
    resulting from such prosecution shall be given for all time
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    STATE v. WINES
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    spent in custody under the former charge which has not
    been credited against another sentence.
    (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.
    [3-7] In considering the parties’ arguments concerning
    § 83-1,106, we apply our familiar principles of statutory inter-
    pretation, which we briefly review here. When interpreting
    a statute, the starting point and focus of the inquiry is the
    meaning of the statutory language, understood in context. In
    re Guardianship of Eliza W., 
    304 Neb. 995
    , 
    938 N.W.2d 307
    (2020). Our analysis begins with the text, because 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 unam-
    biguous. See 
    id.
     Neither is it within the province of courts to
    read meaning into a statute that is not there or to read anything
    direct and plain out of a statute. Parks v. Hy-Vee, 
    307 Neb. 927
    ,
    
    951 N.W.2d 504
     (2020). A court must attempt to give effect to
    all parts of a statute, and if it can be avoided, no word, clause,
    or sentence will be rejected as superfluous or meaningless. Ash
    Grove Cement Co. v. Nebraska Dept. of Rev., 
    306 Neb. 947
    ,
    
    947 N.W.2d 731
     (2020). Statutes relating to the same subject
    matter will be construed so as to maintain a sensible and con-
    sistent scheme, giving effect to every provision. 
    Id.
    In support of his argument that the district court erred by
    not applying credit for time spent in custody between his
    initial sentencing and his resentencing to multiple sentences,
    Wines relies on several subsections of § 83-1,106, the first
    being § 83-1,106(1). This is not the first time, however,
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    STATE v. WINES
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    that we have been presented with an argument that under
    § 83-1,106(1), a defendant should have credit for time spent in
    custody applied to multiple concurrent sentences.
    In State v. Banes, 
    268 Neb. 805
    , 
    688 N.W.2d 594
     (2004),
    we held that the Court of Appeals erred when it found that a
    defendant was entitled to have credit for the same time period
    in custody applied to two different concurrent sentences. The
    defendant in Banes had been arrested on one charge, released
    on bond for that charge, and then arrested on an unrelated
    charge after which the district court allowed a refund of the
    bond money posted in the first case. At issue was how credit for
    time served should be applied for the period of time after the
    second arrest and refund of the bond money during which the
    defendant was in custody as a result of two unrelated charges.
    Considering both subsections (1) and (4) of § 83-1,106, we
    held that credit for time served should be applied to only one
    sentence. As we explained, “when concurrent sentences are
    imposed, the credit is applied once, and the credit applied
    once, in effect, is applied against each concurrent sentence.”
    Banes, 
    268 Neb. at 812
    , 688 N.W.2d at 599. See, also, State v.
    Sanchez, 
    2 Neb. App. 1008
    , 
    520 N.W.2d 33
     (1994).
    Wines acknowledges that we held in Banes that the defend­
    ant should have credit applied to only one of his concurrent
    sentences, but argues that this case is distinguishable. The
    distinction on which he relies is that Banes involved credit
    for time the defendant was in custody before any sentence
    was pronounced, while this case involves credit for time the
    defendant was in custody in between an initial sentencing
    and a resentencing. Wines has identified a difference between
    the two cases, but we are not convinced that the language of
    § 83-1,106(1) requires that credit should be applied to mul-
    tiple sentences under these circumstances. Instead, we observe
    that § 83-1,106(1) provides that it applies to time spent in
    custody both “pending sentence” and “pending the resolution
    of an appeal.” During the period of time at issue here, Wines
    was initially in custody pending the resolution of an appeal in
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    STATE v. WINES
    Cite as 
    308 Neb. 468
    both the 2016 case and the 2018 case and then, after the Court
    of Appeals vacated his sentences and remanded the causes
    for resentencing, he was in custody pending sentence in both
    cases. We see nothing in the language of § 83-1,106(1) indicat-
    ing that credit for time served should be applied to only one
    concurrent sentence while a defendant is in custody pending
    sentence under circumstances like those in Banes but should be
    applied to multiple concurrent sentences when the defendant is
    in custody pending the resolution of an appeal and then pend-
    ing sentence, as here.
    Wines also suggested at oral argument that § 83-1,106(2)
    supports his argument that credit for the time period at issue
    should have been applied to sentences in both the 2016 case and
    the 2018 case. Again, we must disagree. Section 83-1,106(2)
    provides that credit for time served should be applied in a
    scenario in which the defendant is given a sentence and then
    later “reprosecuted and resentenced for the same offense or for
    another offense based on the same conduct.” That language has
    no application here. Wines was resentenced but never “repros­
    ecuted” for the same offense or for another offense based on
    the same conduct.
    Finally, Wines argues that under § 83-1,106(3), the district
    court should have applied credit for time served—for the period
    between his initial sentencing and his resentencing—to his sen-
    tences in the 2018 case for attempted tampering with evidence,
    attempted possession of tramadol, and child abuse or neglect.
    These are the three sentences in the 2018 case that were
    affirmed by the Court of Appeals in Wines’ first appeal. Wines
    argues that such credit should be applied to those sentences
    because, in the parlance of § 83-1,106(3), other ­sentences were
    “set aside” and those sentences were “remaining.”
    We find it unnecessary to determine whether the circum-
    stances at issue here fall within the language of § 83-1,106(3).
    We reach this conclusion because § 83-1,106(5) provides that
    credit for time served can only be given in accordance with
    its procedures and further provides that any credit awarded
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    STATE v. WINES
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    308 Neb. 468
    under § 83-1,106(3) “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.” § 83-1,106(5)(b). Thus,
    even assuming that § 83-1,106(3) applied when the Court of
    Appeals vacated some of Wines’ sentences and not others,
    under § 83-1,106(5)(b), any resulting credit for time served
    under § 83-1,106(3) could only have been awarded by the
    Court of Appeals. As the district court lacked power to award
    any credit for time served under § 83-1,106(3), we find it did
    not err by not doing so.
    The district court awarded Wines 451 days of credit for
    time served for the time he was in custody between his 2019
    sentencing proceeding and his 2020 resentencing proceeding. It
    applied that credit to his 4-year sentence for delivery of a con-
    trolled substance in the 2016 case. Having considered Wines’
    arguments, we are not persuaded that the district court erred by
    not also applying credit for the same time period to his sen-
    tences in the 2018 case.
    CONCLUSION
    Finding no error in the district court’s sentences, we affirm.
    Affirmed.