Boston v. Black

• Citation: 340 N.W.2d 401,215 Neb. 701
• Decision Date: 18 November 1983
• Docket Number: Nos. 83-134,s. 83-134
• Parties: Johnny BOSTON et al., Appellants, v. Charles BLACK, Warden, Nebraska State Penitentiary, et al., Appellees. Steven G. HURLEY, Appellant, v. Charles L. BENSON, Director, Department of Correctional Services, et al., Appellees. to 83-138 and 83-186.
• Court: Nebraska Supreme Court

Page 401

340 N.W.2d 401

215 Neb. 701

Johnny BOSTON et al., Appellants, v. Charles BLACK, Warden, Nebraska State Penitentiary, et al., Appellees.

Steven G. HURLEY, Appellant, v. Charles L. BENSON, Director, Department of Correctional Services, et al., Appellees.

Nos. 83-134 to 83-138 and 83-186.

Supreme Court of Nebraska.

Nov. 18, 1983.

Syllabus by the Court

1. Sentences. An offender's sentence, for the purpose of good time computations, is the sum of all sentences he receives, regardless of when incurred.

2. Sentences. The date of an offender's initial incarceration is the date on which service of such consolidated sentence is deemed to begin.

3. Sentences. Absent approval of the Board of Pardons, the good time sentence reduction provisions of 1975 Neb.Laws, L.B. 567, are not applicable to an offender who started to serve his sentence prior to the effective date of L.B. 567.

Dennis R. Keefe, Lancaster County Public Defender, and Richard L. Goos, Chief Deputy Public Defender, Lincoln, for appellants.

Paul L. Douglas, Atty. Gen., and J. Kirk Brown, Asst. Atty. Gen., Lincoln, for appellees.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

These consolidated appeals question the method of awarding good time credits to committed offenders. They result from the denials of applications for writs of habeas corpus filed by the relators-appellants Johnny Boston, Larry Glouser, and David Moreno; from unfavorable declaratory judgments and denials of writs of habeas corpus to the plaintiffs-appellants Sandy P. Kerns and Michael J. LaFreniere; and from a declaratory judgment unfavorable to plaintiff-appellant Steven G. Hurley. We affirm in all respects.

It seems appropriate to begin this analysis with a historical review.

In 1975 the Eighty-fourth Legislature enacted L.B. 567, which became effective on August 24, 1975. L.B. 567 made changes in Neb.Rev.Stat. §§ 83-1,109 and 83-1,118 (Reissue 1971) and §§ 83-170, 83-1,107, 83-1,108, 83-1,110, and 83-1,111 (Cum.Supp.1974), and added §§ 83-1,107.01 and 83-1,126.01 (Reissue 1981). The prior provisions of the above-cited amended sections of the statutes were, for the most part, codifications of L.B. 1307 of the Eightieth Legislature. 1969 Neb.Laws, Ch. 817, p. 3071.

L.B. 1307 provided, in relevant part, that a committed offender's term was to be credited 2 months on the first year of the sentence for good behavior and faithful performance of duties, 2 months on the second year, 3 months on the third year, and 4 months for each succeeding year. § 83-1,107 (Cum.Supp.1974). Hereinafter, we refer to this kind of good time as "regular good time." In addition, discretionary authority was given to the chief executive officer of the incarcerating facility to credit the offender's sentence by up to 5 days each month for especially meritorious behavior or exceptional performance of duties while incarcerated. Id. Hereinafter, we refer to this latter kind of good time as "meritorious good time." The phrase "good time" refers to both regular and meritorious good time. These good time credits were applied to an offender's minimum term to reach a date on which he became eligible for discretionary parole and reduced the maximum sentence to determine a date when his parole became mandatory. Id. Under L.B. 1307's scheme, even after release on mandatory parole, the offender was subject to the authority of the Board of Parole until the expiration of his total maximum sentence or earlier release by said board from such obligation. § 83-1,118 (Reissue 1971).

Under the provisions of L.B. 567, regular good time, in the same amounts as indicated previously, is calculated on the basis of the offender's total sentence and credited at the start of his term. The amount of such time to be credited is the same as it was under L.B. 1307. § 83-1,107 (Reissue 1981). In addition, 5 days of meritorious good time for faithful performance of duties is to be credited to the offender's sentence for each month of his sentence. § 83-1,107.01 (Reissue 1981). That is to say, L.B. 567 took away the discretion prison officials had under L.B. 1307 in the potential 5-day award. Id. Under L.B. 1307, up to 5 days could be awarded for exceptional performance or especially good behavior. Under L.B. 567, 5 days shall be awarded for faithful performance of duties during the term of the sentence, regardless of whether the offender remains incarcerated during the term. Id. L.B. 567 regular good time is to be deducted from the minimum sentence to reach a discretionary parole date, and deducted from the maximum sentence to determine the date on which the offender is to be absolutely discharged from the state's penal authority. § 83-1,107 (Reissue 1981). L.B. 567 meritorious good time is to be deducted solely from the maximum sentence to determine that absolute discharge date. § 83-1,107.01 (Reissue 1981). In other words, there is no mandatory parole under the scheme of L.B. 567. L.B. 567 does not state whether meritorious good time is to be credited in a lump sum when beginning to serve the sentence, or credited on a monthly basis. Id. The Department of Corrections credits the meritorious good time contemplated by L.B. 567 in a lump sum at the beginning of the sentence. It does not so credit the meritorious good time contemplated by L.B. 1307.

In summary, then, any and all good time credited under L.B. 567 serves to shorten an offender's sentence in the sense that when his release from incarceration is mandated, he is no longer subject to the authority of the Department of Correctional Services or the Board of Parole. Any and all good time credited under L.B. 1307 serves only to shorten an offender's period of incarceration in the sense that when his release from incarceration becomes mandatory, he remains subject to the authority of the Board of Parole until the term of his maximum sentence has expired, or he is earlier relieved of that obligation by the Board of Parole. § 83-1,118 (Reissue 1971).

Both L.B. 1307 and L.B. 567 provide for the forfeiture, withdrawal, and restoration of good time. § 83-1,107 (Cum.Supp.1974 and Reissue 1981) and § 83-1,107.01 (Reissue 1981). Under both schemes any consecutive terms an offender receives while incarcerated are to be consolidated with any other sentence by adding the minimum terms together and adding the maximum terms together. § 83-1,110 (Cum.Supp.1974 and Reissue 1981).

This court has dealt with the provisions of L.B. 567 on four prior occasions.

In Johnson & Cunningham v. Exon, 199 Neb. 154, 256 N.W.2d 869 (1977), this court held that since L.B. 567 reduced the sentence imposed, its good time sentence reduction provisions could constitutionally be applied retroactively only with the approval of the Board of Pardons, in view of the fact that our Constitution lodged the power "to grant respites, reprieves, pardons, or commutations" in said board.

The next case, Lytle v. Vitek, 203 Neb. 825, 280 N.W.2d 654 (1979), presented an offender who had been incarcerated before the effective date of L.B. 567 and who was granted a discretionary parole in 1976. His meritorious good time earned under L.B. 1307 was forfeited after his return to prison. He argued that L.B. 1307 meritorious good time earned prior to parole could not be forfeited upon reincarceration. § 83-1,107 (Cum.Supp.1974). That prohibition against the forfeiture of meritorious good time was repealed by L.B. 567. We held that reliance upon that repealed statutory language was unfounded.

We next considered retroactive application of L.B. 567 in Gochenour v. Bolin, 208 Neb. 444, 303 N.W.2d 775 (1981). Gochenour was sentenced, prior to the enactment of L.B. 567, to a 3- to 5-year term. In 1978 he was sentenced to a consecutive 1-year term for escape. In 1979, when he would have reached his mandatory parole date for the first sentence, the Department of Corrections interrupted the initial sentence and he began to serve his 1-year consecutive sentence. This court held that both L.B. 1307 and L.B. 567 required the sentences to be consolidated, and since Board of Pardons approval for retroactive application of L.B. 567 good time sentence reduction provisions had not been sought, pre-L.B. 567 good time crediting provisions should be applied to his total consolidated sentence.

In Whited v. Bolin, 210 Neb. 32, 312 N.W.2d 691 (1981), the offender started serving a 10-year sentence in 1967. In 1973 he was given a 3- to 10-year sentence to be served consecutively to the 1967 sentence. The first sentence was terminated in 1973, and the offender then began serving the 1973 sentence. He violated parole in 1978 and was returned to custody. This court held, as in Gochenour, that the two sentences should have been consolidated in order to compute the date of mandatory release from the state's penal authority, after accounting for all good time credited or forfeited. If the good time sentence reduction provisions of L.B. 567 had been applied to Whited's sentence, he would have been entitled to discharge from the penal authority of the state at an earlier time than under L.B. 1307; therefore, he needed Board of Pardons approval for the retroactive application of those L.B. 567 provisions.

We divide the offenders involved in the appeals presently before us into two separate groups. The first group is composed of those sentenced prior to the effective date of L.B. 567 who have incurred no additional sentences after that date and have been denied L.B. 567 good time sentence reductions. The second group consists of those sentenced prior to L.B. 567 who have committed crimes and incurred sentences after L.B. 567 became effective.

The first group consists of Boston, Glouser, and Moreno, all of whom seek writs of habeas corpus.

On October 29, 1970, Boston was sentenced to a term of imprisonment of 10 to 15 years. He was placed on parole in 1978, violated the terms of his parole...