Gochenour v. Bolin, 43267

• Citation: 208 Neb. 444,303 N.W.2d 775
• Decision Date: 27 March 1981
• Docket Number: No. 43267,43267
• Parties: Elmer R. GOCHENOUR, Appellant, v. Jerry J. BOLIN et al., Appellees.
• Court: Nebraska Supreme Court

Page 775

303 N.W.2d 775

208 Neb. 444

Elmer R. GOCHENOUR, Appellant, v. Jerry J. BOLIN et al., Appellees.

No. 43267.

Supreme Court of Nebraska.

March 27, 1981.

Syllabus by the Court

1. Statutes: Sentences. 1975 Neb.Laws, L.B. 567, made no changes in the provisions for consolidation of consecutive sentences and the pertinent provisions of Neb.Rev.Stat. § 83-1,110(2) (Reissue 1976) pertaining to consolidation are to be applied to consecutive sentences whether imposed before or after the effective date of L.B. 567.

2. Board of Pardons: Statutes: Sentences. Our holding in Johnson & Cunningham v. Exon, 199 Neb. 154, 256 N.W.2d 869 (1977), that approval of the Board of Pardons was required to apply L.B. 567 retroactively pertained only to those changes in the statute which would result in discharge from custody of the prisoner at an earlier date than before the amendments made by L.B. 567.

Dennis R. Keefe, Public Defender, and Richard L. Goos, Lincoln, for appellant.

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

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

CLINTON, Justice.

This is an action brought by Elmer R. Gochenour, an inmate of the Nebraska Penal and Correctional Complex, in the District Court for Lancaster County for a declaratory judgment construing the statutes of this state providing for "good time" and to determine whether the Department of Correctional Services (hereinafter DCS) properly computed Gochenour's discharge date. The petition alleged that the DCS unlawfully interrupted his service of an indeterminate sentence for the purpose of having him serve a consecutive sentence subsequently imposed before completing the indeterminate sentence. The petition further alleged that his primary and consecutive sentences were not consolidated in accordance with the provisions of Neb.Rev.Stat. § 83-1,110(2) (Reissue 1976). The petition asks for a declaration that such procedures are unlawful.

The District Court made certain findings and then entered an order as follows:

"THEREFORE, IT IS ORDERED:

"1. The plaintiff must serve his original 3 to 5 year sentence until it has been served in full and he has been discharged therefrom under the statutes in effect at the time of that conviction.

"2. When the plaintiff begins serving his consecutive sentence, he shall receive credit against that sentence for time served from June 4, 1979 to the effective date of this order."

The order was entered on January 15, 1980. Gochenour then appealed to this court.

A simple and clear explanation of the source of the controversy is not readily accomplished. The problems arise from changes made in the "good time" statutes as well as our holding in Johnson & Cunningham v. Exon, 199 Neb. 154, 256 N.W.2d 869 (1977), interpreting 1975 Neb.Laws, L.B. 567, which made the statutory changes.

We will first set forth the facts from which the dispute arises and then explain the statutory changes.

On May 15, 1975, Gochenour began serving a term of 3 to 5 years for forgery. On May 6, 1977, he escaped and was not apprehended until March 3, 1978, 9 months and 27 days after his escape. He was prosecuted for the escape, found guilty, and, on March 3, 1978, sentenced to a term of 1 year to be served consecutively to the previous sentence. Because of his escape he lost, by administrative action, all accumulated good time as permitted by statute. Later, his good time on the 1975 sentence was administratively restored and on January 1, 1979, the DCS established for him a mandatory parole date of June 4, 1979, for the first sentence. This was apparently done under the provisions of Neb.Rev.Stat. §§ 83-1,107(1)(b) and 83-1,111(5) (Reissue 1976) as those statutes provided before their amendment by L.B. 567. L.B. 567 became effective 3 months after May 23, 1975.

On June 4, 1979, he was not released to serve on parole the remainder of his first sentence; rather, that sentence was "interrupted" and he began to serve the 1-year consecutive sentence. On October 2, 1979, he commenced this action.

We now examine the pertinent statutes and the changes made by L.B. 567. At the time of the imposition of the first sentence and at the time the consecutive sentence was imposed, § 83-1,110 provided, in effect, that consecutive sentences be consolidated and that every committed offender sentenced to serve a consecutive sentence, whether the sentences were received at the same time or during the original sentence, would be eligible for release on parole when he had served the total of the minimum terms less good time as provided by the statutes. § 83-1,107. Section 83-1,110 also provided that "(t)he maximum terms shall be added to compute the new maximum term." The prisoner was eligible for mandatory parole when he had served the maximum term less good time reductions. § 83-1,107.

L.B. 567 did not make any change in the provisions of the statute for consolidation of sentences. It did, however, make changes with reference to "good time."

Statutes, at the time Gochenour received his first sentence, provided for two types of good time which we will refer to as "good behavior" and "meritorious" good time (although the terminology was changed by L.B. 567). Before L.B. 567 took effect, good time credit of both types was deducted from the minimum terms to determine eligibility for release on parole, and from the maximum terms to determine when release on parole became mandatory.

When L.B. 567 became effective in August 1975 it made the following changes in how good time reductions were treated. "Good behavior" time but not meritorious time was now deducted from the minimum term to determine eligibility for release on parole as well as from the maximum term to determine when the discharge from custody of the state became mandatory. L.B. 567 § 2. The reductions were to be credited from the date of sentence. Meritorious good time was credited only against the maximum term to determine when discharge from custody became mandatory.

The effect of these changes would be that in some instances discharges from custody would come at an earlier date.

Section 9 of L.B. 567 provided, in part: "Any person eligible for immediate discharge or release pursuant to this act shall be so discharged or released no later than one hundred twenty days after the effective date of this act subject to the approval of the Board of Pardons."

The Legislature, apparently...