State v. Leahy
| Decision Date | 05 October 2018 |
| Docket Number | No. S-17-1047.,S-17-1047. |
| Citation | 301 Neb. 228,917 N.W.2d 895 |
| Parties | STATE of Nebraska, appellee, v. John R. LEAHY III, appellant. |
| Court | Nebraska Supreme Court |
Richard Calkins, of Calkins Law Office, Alma, for appellant.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi, Lincoln, for appellee.
Papik, J.John R. Leahy III was serving a criminal sentence in Colorado when he was extradited to Nebraska to face charges here. Approximately 19 months later, Colorado authorities granted Leahy parole. After he was convicted of kidnapping and manslaughter in Nebraska, the district court determined he was not entitled to credit for time served prior to his parole in Colorado. Leahy now appeals the denial of credit for time served, the admission of an exhibit the district court received in the course of determining whether and to what extent he was entitled to credit for time served, and the consecutive nature of his sentences. Having found no reversible error in any aspect of the district court’s sentencing of Leahy, we affirm.
In June 2015, the State filed an information charging Leahy with first degree murder for killing Austin Wright in the perpetration of a kidnapping or attempted kidnapping. Pursuant to a plea agreement, Leahy pleaded no contest to an amended information charging him with kidnapping and manslaughter. In accordance with the plea agreement, Leahy also pleaded no contest to an amended information in a separate case, charging him with possession of methamphetamine with intent to deliver. As agreed, the State recommended concurrent sentences for all charges in both cases.
According to the factual basis supplied by the State at the plea hearing, Leahy and Wright were acquaintances, and Wright stayed briefly at Leahy’s residence beginning February 26, 2014. On March 7, Wright’s mother contacted Leahy. She had not seen Wright for several days and asked Leahy where he was. Leahy told Wright’s mother that Wright had shown up high "on something" at Leahy’s residence and that Wright could not stay there anymore. On March 8, Leahy told Wright’s mother that he had dropped Wright off near a motel in McCook, Nebraska, that day. On March 9, Wright’s mother filed a missing person’s report.
On March 13 and 20, 2014, police interviewed Leahy. At that time, Leahy told officers that he had dropped Wright off near a motel in McCook. A search of Leahy’s residence on April 9 uncovered 26.82 grams of methamphetamine and a cell phone video of Leahy and Wright arguing about debts that Wright owed Leahy for drugs, among other things. The video was date stamped March 6.
The day after the search, Leahy asked to talk to police. He admitted that under the pretense of going to McCook, he and another passenger took Wright in his car, that he forced Wright to cover his head with a sweatshirt, that he drove the car on a circuitous route intended to confuse Wright, and that he left Wright alone in an isolated rural area with no means of transportation. Before leaving, Leahy pointed Wright in the general direction of the nearest town, 8 miles away. The nearest inhabited dwelling was over 1½ miles in nearly the opposite direction.
After Leahy recounted those details, officers went to the area Leahy said he had left Wright. Nearby, officers found Wright’s naked body and some of his clothing. Authorities identified Wright using dental records, and an autopsy and forensic testing showed that he died of hypothermia sometime between early March 2014 and the date of discovery on April 11.
The district court accepted Leahy’s pleas of no contest.
After the district court accepted Leahy’s pleas, it continued sentencing for preparation of a presentence investigation report (PSR). At the subsequent sentencing hearing, a dispute arose regarding the time-served calculation in the PSR. Leahy was serving a 3-year sentence in Colorado when he was charged in Nebraska for the current offenses. He was transported to Nebraska to await trial according to the interstate Agreement on Detainers, see Neb. Rev. Stat. § 29-759 (Reissue 2016), and began his incarceration in Nebraska on May 7, 2015. While still detained in Nebraska, Leahy was paroled by the State of Colorado on November 28, 2016. The PSR as initially prepared is not in the record, but arguments by counsel at the hearing suggest that it indicated Leahy was entitled to credit for all of the time he was detained in Nebraska prior to his convictions and sentencing.
At the hearing, the State contended that Leahy should not receive credit for time he was detained in Nebraska prior to Colorado’s grant of parole on November 28, 2016. Leahy’s counsel did not dispute that Leahy was paroled by Colorado on November 28, but argued that Leahy should receive credit for any time he spent incarcerated in Nebraska awaiting trial on Nebraska charges. The district court scheduled another hearing to address credit for time served.
At the next hearing, the State offered exhibit 51, which included a signed cover letter from a technician at the Colorado Department of Corrections, "Time/Release Operations." The letter stated that Leahy was paroled from the Colorado Department of Corrections on November 28, 2016.
Leahy’s counsel objected on foundation and hearsay, noting that he had not had the opportunity to question the author of the document. Leahy’s counsel further argued that Leahy may have completed his Colorado sentence earlier if he had not been transported to Nebraska but that there was no way to know for certain, because no one was present to explain exhibit 51. The district court ultimately overruled Leahy’s objection and received exhibit 51.
In a subsequent written order, the district court ruled that Leahy would not receive credit toward his Nebraska sentences for the time beginning May 7, 2015, and ending November 28, 2016, because his Colorado sentence was still running during that period. However, the district court did allow Leahy credit for time he served after he was paroled by the Colorado Department of Corrections.
Almost 2 weeks after issuing its written order on the issue of time served, the district court held a sentencing hearing. At the hearing, the parties presented arguments, including aggravating and mitigating information from the PSR. The PSR reflected that Leahy was 22 years old at the time of the current offenses, that he was single with no children, that he left school after completing the 10th grade, and that at the time of his arrest for the current offenses, he had been employed at a drilling company full time for 7 or 8 months.
According to the PSR, Leahy was diagnosed with bipolar disorder as a youth but has never treated the condition with medication. Leahy reported that his mental health is good, though he admitted attempting suicide several times after his mother died. Leahy had used marijuana daily since age 12. Beginning at age 14, Leahy used methamphetamine intermittently until 2013, when he began using it every day. Leahy admitted to having a problem with drugs and to selling illegal drugs.
Leahy’s criminal history began when he was convicted of pharmaceutical drug possession at age 14. Subsequently, Leahy was convicted of assault, minor in possession, failure to appear, two felony drug possession charges, and false reporting. Regarding Wright, Leahy reported that he felt "horrible" and never anticipated that Wright would die. He stated that he believed he deserved to "serve time just for what he did wrong, but not made an example of." He expressed an intent to take advantage of educational opportunities during his incarceration.
At the sentencing hearing, Leahy apologized for his actions. He admitted that he initially lied about Wright’s whereabouts, but he asked the district court to consider that he had since been honest and accepted responsibility through his no contest pleas.
Before pronouncing the sentences, the district court explicitly stated that it had considered all of the customary factors enumerated in sentencing. The district court proceeded to reference information it obtained from the PSR. It remarked specifically on Leahy’s age, education, employment, criminal history, and use of drugs. Noting Leahy’s role in covering Wright’s head and taking him on a circuitous route in Leahy’s car before leaving him alone in a rural area, the district court observed that but for Leahy’s actions, Wright would still be alive. The district court stated that lesser sentences than the ones to be imposed would depreciate the seriousness of Leahy’s crimes and promote disrespect for the law.
The district court sentenced Leahy to 24 to 30 years’ imprisonment for kidnapping and 18 to 20 years’ imprisonment for manslaughter. It ordered the sentences to run consecutively to each other and to the sentence of 8 to 10 years’ imprisonment that Leahy received in a separate case for the conviction of possession of methamphetamine with intent to deliver.
Leahy assigns, rephrased, that the district court erred (1) in denying him credit for the time served in the Hitchcock County jail before November 28, 2016; (2) in receiving exhibit 51 over his objection; and (3) in imposing excessive sentences by sentencing him to consecutive terms of imprisonment for the various convictions.
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. See State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013).
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Russell, 299 Neb. 483, 908 N.W.2d 669 (2018).
Leahy contends that he should have received credit for all the...
To continue reading
Request your trial
-
State v. Brown
...discretion to direct that sentences imposed for separate crimes be served either concurrently or consecutively. State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018).Having reviewed the record, we cannot say that the district court abused its discretion in sentencing Brown. The district court......
-
State v. Montoya
...Scott , 284 Neb. 703, 824 N.W.2d 668 (2012).11 State v. Schuller , 287 Neb. 500, 843 N.W.2d 626 (2014).12 Id.13 Id.14 State v. Leahy , 301 Neb. 228, 917 N.W.2d 895 (2018).15 Miranda, supra note 1, 384 U.S. at 467, 86 S.Ct. 1602.16 Id. , 384 U.S. at 444, 86 S.Ct. 1602. Accord, State v. Schri......
-
State v. Garcia
...will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Leahy , 301 Neb. 228, 917 N.W.2d 895 (2018).ANALYSISAdmission of Note, Fourth Amendment, and Inventory Search.Garcia first claims that the district court erred when it ......
-
State v. Stack
...will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Leahy , 301 Neb. 228, 917 N.W.2d 895 (2018).IV. ANALYSIS1. SUFFICIENCY OF EVIDENCE We begin with Stack's challenge to the sufficiency of the evidence. He argues that he......