State v. Harker

• Decision Date: 07 September 1999
• Docket Number: No. A-98-1353.,A-98-1353.
• Citation: 600 N.W.2d 488,8 Neb. App. 663
• Parties: STATE of Nebraska, appellee, v. Jeffrey A. HARKER, appellant.
• Court: Nebraska Court of Appeals

600 N.W.2d 488

8 Neb. App. 663

STATE of Nebraska, appellee, v. Jeffrey A. HARKER, appellant.

No. A-98-1353.

Court of Appeals of Nebraska.

September 7, 1999.

Thomas C. Riley, Douglas County Public Defender, and Peder C. Bartling, Lincoln, for appellant.

Martin J. Conboy III, Omaha City Prosecutor, James Jansen, Douglas County Attorney, and Jennifer Cavel, Special Assistant Omaha City Prosecutor, for appellee.

HANNON, SIEVERS, and CARLSON, Judges.

HANNON, Judge.

The appellant, Jeffrey A. Harker, pled no contest to an assault and battery charge under a city ordinance. Harker had been in jail for 66 days prior to sentencing, possibly for separate felony charges. At sentencing, Harker requested credit for the time served. The trial judge indicated he was under the impression that credit for time served need not be given if the sentence is less than the maximum sentence. The judge then sentenced Harker to 179 days in jail with no credit. Immediately after the sentence was pronounced, Harker called the judge a "[c]ocksucker." In the short proceeding following, Harker used the same term eight times. The judge then summarily found Harker guilty of three separate acts of contempt and sentenced him to 180 days in jail for each of the three acts, with the sentences to run consecutively. Harker appealed both the judges failure to give him credit for time served on the assault and battery charge, and the sentences for contempt. The district court affirmed. We conclude the trial court erred in not determining whether Harker was entitled to credit for time served, in finding and sentencing him for contempt without making findings stating the facts constituting each contempt, and in imposing an aggregate sentence of more than 6 months' imprisonment in the same proceeding without giving him a jury trial. We therefore reverse, and remand for further proceedings.

BACKGROUND

Harker was charged with assault and battery against his wife, Tammy Harker, as well as disorderly conduct in connection with the same occurrence. On March 24, 1998, Harker appeared before the county court with counsel, and pursuant to a plea bargain for the dismissal of the disorderly conduct charge, he pled no contest to the assault and battery charge. Harker was advised of his rights, and that the maximum penalty was 6 months in jail and a $500 fine. A factual basis was established in a proper manner. The record establishes that Harker was guilty of serious physical abuse of Tammy and that there was a history of such abuse. When the judge asked the prosecutor if Tammy had any recommendations on sentencing, the prosecutor stated Harker's criminal record, that he had abused Tammy in the past, that she was standing up to him for the first time, and that Tammy wished to address the court. Defense counsel then pointed out that Harker had been in custody for 66 days and asked that he be given credit for time served. Tammy was allowed to speak and stated that Harker should not get credit for time served because "it took a lot for me to step forward and say that I've been abused over the years." She also stated Harker was in jail for a completely different charge. Defense counsel then clarified that Harker was being held on the current charges and the felony charges. Tammy then stated, "And what about the victims rights?" The judge replied:

I agree, ma'am. You have some legitimate complaints. Unfortunately, the only way that I can make sure that your rights are covered is to give him the maximum penalty, and if I do that, I have to give him credit for the time he sat in jail on those charges. There is one way not to do that."

Defense counsel then cited Neb.Rev.Stat. § 47-503 (Reissue 1998) and again argued Harker was entitled to credit. The judge stated: "I order the defendant serve a term of 179 days, set his appeal bond at $10,000. You can appeal the decision as to whether or not I should have given him credit." Harker then stated, "You did a good job. Cocksucker." The judge asked, "Excuse me, sir?" and Harker replied with the expletive a second time. The judge directed a deputy to bring Harker back and then announced that he was holding Harker in contempt of court. Harker replied, "So what." Defense counsel informed Harker that the judge was giving him more time, and Harker replied, "So what. I'm facing four fucking warrants right now." The court then asked Harker if he had anything to say about the sentence being imposed on the contempt of court charge. Defense counsel attempted to explain Harker's conduct as a result of the pressure that he was under. The prosecutor indicated concern for the record being complete, and the judge asked, "Mr. Harker, as you walked away after your sentence was pronounced, you indicated that you called me [stating the expletive]. Do you dispute that?" Harker replied, "Not at all [using the expletive a third time]." The judge then stated that was another count of contempt, and Harker proceeded to call the judge the same name a fourth time. The judge then sentenced Harker to 180 days in jail for each of the three counts and stated the sentences were to be served one after the other. Harker repeated the expletive four more times before the short record ended.

The journal of the sentence on the contempt charges is separate from the journal of the sentence for the assault and battery charge. The journal for the contempt charges is on a form identical to that of the assault and battery charge. The form indicates that Harker was charged with three separate counts of contempt. The form states that "def[endant] found in contempt of court" and that "[d]efendant is sentenced to the Corrections Center for a term of (1) 180(2) 180(3) 180" days, for a total of 18 months. The document contains no further details.

ASSIGNMENTS OF ERROR

The notice of errors filed in the district court alleges that the trial court erred (1) by failing to give Harker credit for the time served awaiting trial, (2) in abusing its discretion by imposing excessive sentences for the three contempt charges, and (3) by abusing its discretion by basing three counts on one occurrence. In this court, Harker alleges the district court erred (1) in affirming the sentence which failed to give him credit under § 47-503 for time served prior to trial, (2) by not determining that the trial court abused its discretion in finding and sentencing him on multiple counts of contempt, (3) by not remanding the contempt sentences for a jury trial, and (4) by failing to remand with directions to give Harker an opportunity to present a defense to the contempt charges. In this opinion, we address the issues raised in a different order than they were assigned.

STANDARD OF REVIEW

Whether Harker was entitled to credit for time served is a question of law. In reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Vann v. Norwest Bank Neb., 256 Neb. 623, 591 N.W.2d 574 (1999); Goff-Hamel v. Obstetricians & Gyns., P.C., 256 Neb. 19, 588 N.W.2d 798 (1999).

A final judgment or order in a contempt proceeding is reviewed in the same manner as in a criminal case. Dunning v. Tallman, 244 Neb. 1, 504 N.W.2d 85 (1993); State v. Hinze, 232 Neb. 550, 441 N.W.2d 593 (1989); State v. Thalken, 2 Neb.App. 867, 516 N.W.2d 635 (1994). In determining whether evidence is sufficient to sustain a conviction for contempt, an appellate court does not resolve conflicts in evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh evidence presented, which are within a fact finder's province for disposition. Thalken, supra.

A conviction in a bench trial for contempt is sustained if the evidence, viewed and construed in the light most favorable to the State, is sufficient to support that conviction. Id.

A trial court's factual finding in a contempt proceeding will be upheld on appeal unless the finding is clearly erroneous. Dunning, supra; Thalken, supra.

An appellate court, examining a final judgment or order in a contempt proceeding, reviews for errors appearing on the record. Id. A defendant's contempt must be established by proof beyond a reasonable doubt. Id.

DISCUSSION

Credit for Time Served.

Harker requested that he receive credit for time served. Statements by the judge indicate that the judge was under the impression that he was required to give credit for time spent in jail as a result of the charge only if he sentenced Harker the maximum allowed. In fact, statements by the judge would indicate that he sentenced Harker to 179 days rather than 180 days only because he believed that if he sentenced Harker to 180 days, he would be required to give Harker credit for time served. In State v. Thomas, 236 Neb. 355, 461 N.W.2d 513 (1990), this notion was stated by the Supreme Court, but the case did not involve a situation where the sentence imposed, plus the time already served, exceeded the maximum penalty. This question was rendered academic by § 47-503, which states in significant part, "Credit against a jail term shall be given to any person sentenced to a city or county jail for time spent in jail as a result of the criminal charge for which the jail term is imposed." In State v. Torres, 256 Neb. 380, 590 N.W.2d 184 (1999), published after the proceeding in the county court in this case, the Supreme Court clearly held the statute means what it says. However, in Torres, the Supreme Court held that the appellate court could not give the credit against the sentence and remanded the cause to the district court for resentencing. We are in the same position, and in addition, the record does not clearly show the facts necessary to determine if Harker is entitled to the credit. We remand the matter of the credit for time served to the district court with directions to remand the case to the county court to resentence on the assault and battery charge, to hold a sentencing hearing on the contempt charges, and to give Harker...