State v. Wills
| Decision Date | 22 February 2013 |
| Docket Number | S–12–415.,Nos. S–11–1026,s. S–11–1026 |
| Citation | 285 Neb. 260,826 N.W.2d 581 |
| Parties | STATE of Nebraska, appellee, v. Micheal C. WILLS, appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
[285 Neb. 260]1. Sentences: Appeal and Error. Whether a defendant is entitled to credit for time served and in what amount are questions of law. An appellate court reviews questions of law independently of the lower court.
2. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.
3. Sentences. Credit for time served should be taken into account so that the effective sentence is within the statutory limits.
4. Sentences. With consecutive sentences, periods of presentence incarceration are credited against the aggregate of all terms imposed. With concurrent sentences, such periods are credited against the longest sentence, but are, in effect, applied against all the sentences.
5. Sentences: Probation and Parole: Appeal and Error. It is within the discretion of the trial court whether to impose probation or incarceration, and an appellate court will uphold the court's decision denying probation absent an abuse of discretion.
Dennis R. Keefe, Lancaster County Public Defender, Lincoln, and Shawn Elliott, for appellant.
Jon Bruning, Attorney General, George R. Love, and Dain J. Johnson, Senior Certified Law Student, for appellee.
In these consolidated cases, the primary issue presented is how to properly credit a defendant with time served because of two separate criminal cases, in which two different judges sentenced the defendant at different times.
A timeline of events is necessary to set the stage for this appeal. On March 26, 2010, law enforcement arrested and jailed Micheal C. Wills for fleeing from law enforcement and leaving the scene of an injury accident (case No. S–12–415). Wills remained in jail until April 2, when the district court apparently released him on bond.
On May 28, 2010, law enforcement again arrested and jailed Wills, but on an unrelated charge of child abuse resulting in death (case No. S–11–1026). Wills apparently was unable to post bond in case No. S–11–1026. Presumably because Wills was already in jail, on June 3, Wills surrendered on his bond in case No. S–12–415. So at that point, Wills was in jail because of both cases.
On October 14, 2011, in case No. S–11–1026, a jury convicted Wills of the lesser crime of negligent child abuse, a Class I misdemeanor.1 That same day, the court released Wills on bond, though he remained in jail because he had previously surrendered on his bond in case No. S–12–415. On October 17, 2011, however, the court reinstated Wills' bond in case No. S–12–415 and Wills was released from jail.
In sum, the record shows that Wills was in jail solely because of case No. S–11–1026 from May 28 through June 2, 2010, a total of 6 days. The record shows that Wills was in jail solely because of case No. S–12–415 from March 26 through April 2, 2010, and from October 14 through 16, 2011, a total of 11 days. Finally, the record shows that Wills was in jail because of both cases from June 3, 2010, through October 13, 2011, a total of 498 days.
On November 2, 2011, in case No. S–11–1026, the court sentenced Wills to 1 year in jail, with credit for 504 days already served, which included all 498 days spent in jail on both cases. On January 24, 2012, in case No. S–12–415, Wills pleaded guilty to operating a motor vehicle to avoid arrest, a Class I misdemeanor,2 and leaving the scene of an injury accident, a Class IIIA felony.3 On April 18, a different judge of the court sentenced Wills to 2 to 4 years in prison, with credit for 11 days served. The court did not give Wills credit for any remaining days from the 498 days credited toward his earlier 1–year sentence. The court also revoked his operator's license for 5 years and ordered him not to drive any vehicle for 5 years.
This appeal involves the proper way to credit Wills for the 498 days he spent in jail on both cases.
Wills assigns, restated and consolidated, that the district court erred in:
(1) applying all 498 days of credit for time served toward his 1–year sentence in case No. S–11–1026, thereby preventing the court from applying some of that time toward his sentence in case No. S–12–415; and
(2) imposing excessive sentences in case No. S–12–415.
Our standard for reviewing a district court's calculation and application of credit for time served is a bit unclear. For example, in State v. Torres,4 the sole assigned error was that the court erred in failing “to credit [the defendant] for time served in jail while awaiting trial and sentence.” 5 We first noted that we would not disturb a sentence within statutory limits unless the court had abused its discretion.6 But we noted that interpretation of a statutepresented a question of law, which we would review independently of the lower court.7 In more recent cases, however, we have noted that interpretation of a statute is a question of law and that “[w]hether a defendant is entitled to credit for time served is also a question of law.” 8
The latter approach is correct. No part of crediting time served requires a court to exercise its discretion, so we do not review the court's findings for abuse of discretion. We made this clear in State v. Clark9 :
[T]he credit for time served to which a defendant is entitled is an absolute and objective number that is established by the record. Therefore, the exact credit for time served to which a defendant is entitled is objective and not discretionary. The court has no discretion to grant the defendant more or less credit than is established by the record.
So, we clarify that whether a defendant is entitled to credit for time served and in what amount are questions of law. We review questions of law independently of the lower court.10
The standard for reviewing an excessive sentence claim is well established: We will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.11
Wills takes issue with the court's crediting of his time served. The record shows that 498 days of Wills' presentence confinement qualified as credit in either case. Wills asserts that the sentencing judge in case No. S–11–1026 erred in crediting all 498 days to his 1–year sentence and that the sentencing judge in case No. S–12–415 erred in failing to credit him with the would-be remaining time. The State argues that the first sentencing judge had no discretion to enter an amount other than Wills' total credit for time served, which included all 498 days. And the State argues that once the first sentencing judge credited all the time to the first sentence, the second sentencing judge could not grant credit for the same time, because time served may be credited only once.
The calculation and application of credit for time served are controlled by statute. Different statutes address credit for time served based on whether the defendant is sentenced to jail or prison.12 But those provisions are similar,13 and the reasoning of cases involving either provision is applicable here. This case hinges on the court's credit for time served in case No. S–11–1026, involving a jail sentence, so we look to § 47–503. It provides, in relevant 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 or as a result of conduct upon which such charge is based.
Wills argues that the court in case No. S–11–1026 erred in applying all 498 days of credit to his 1–year sentence. He argues that the court should have applied only the amount of credit necessary to satisfy his sentence, which after good time reduction, he alleged was 190 days. Wills argues that the court was aware of his pending case in case No. S–12–415 and that if the court's crediting all 498 days “truly exhausted” Wills' credit, then Wills essentially served a sentence in excess of the statutory maximum.14
We have not found any factually comparable cases in Nebraska or in other jurisdictions. The answer is not obvious. But certain principles of law are relevant. It is clear that Wills was entitled to credit for time spent in jail before sentencing.15 It is also clear that Wills was entitled to good time reduction for time spent in jail before sentencing.16 And credit for time served may be applied only once. 17
We conclude that the court erred in crediting all 498 days to Wills' 1–year sentence. Section 47–503 provides that a defendant is entitled to “[c]redit against” his jail term. In this context, “credit” is best defined as “a deduction from an amount otherwise due.” 18 Unlike a bank account, a defendant cannot go below zero in terms of days left on a prison sentence. So the judge could not “credit” Wills with more time served than the length of his sentence. Moreover, in this context, “against” is best defined as “in exchange for,” “in return for,” “as a charge upon,” or “to the debit of.” 19Section 47–503 grants credit for time served on a 1–to–1 ratio—so the court could not grant credit “against” Wills' jail term in excess of the length of the sentence.
Though factually distinguishable, the rationale of State v. Knight20 supports our conclusion. In Knight,Neb.Rev.Stat. § 83–1,105(1) (Reissue 1981) mandated that the minimum term of an indeterminate sentence not exceed more than one-third of the maximum term. The court sentenced the defendant to 18 months to 3 years in prison on a Class IV felony, for which the maximum term was 5 years, and the court, exercising its discretion, gave no credit for 151 days already served. We concluded that “[w]hen the approximately 5–month...
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