Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Phillips

Supreme Court of Nebraska

March 29, 2019

State of Nebraska, appellee,
v.
Caleb A. Phillips, appellant.

         1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court.

         2. Sentences: Appeal and Error. 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.

         3. Statutes: Intent: Appeal and Error. When interpreting a statute, effect must be given, if possible, to all the several parts of a statute; no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided. An appellate court must look to the statute's purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it.

         4. Statutes: Time: Words and Phrases. Unless the context shows otherwise, the word "month" used in a Nebraska statute means "calendar month." A calendar month is a period terminating with the day of the succeeding month, numerically corresponding to the day of its beginning, less one.

         5. Sentences: Probation and Parole: Appeal and Error. Because a court has discretion under Neb. Rev. Stat. § 29-2268(2) (Reissue 2016) to impose, upon revocation, any term of imprisonment up to the remaining period of post-release supervision, an appellate court will not disturb that decision absent an abuse of discretion.

         6. Judgments: Appeal and Error. An abuse of discretion occurs when a court's reasons or rulings are clearly untenable and unfairly deprive the litigant of a substantial right and a just result.

          Appeal from the District Court for Lancaster County: John A. Colborn, Judge. Affirmed.

         [302 Neb. 687] Joe Nigro, Lancaster County Public Defender, and Jennifer M. Houlden for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

          Funke, J.

         Caleb A. Phillips appeals from his 365 days of imprisonment imposed as a result of his revocation from post-release supervision. Phillips absconded from post-release supervision and failed to appear at the hearing on the State's motion for revocation. He was subsequently arrested and spent 98 days in jail prior to revocation.

         This appeal raises the novel issue of how a court should, for purposes of imposing a term of imprisonment upon revocation, calculate a probationer's "remaining period of post-release supervision" under Neb. Rev. Stat. § 29-2268(2) (Reissue 2016). We discuss in this opinion, as a matter of first impression, how the time a probationer has absconded and how the time a probationer has spent in jail prior to revocation factor into that calculation. We affirm.

         BACKGROUND

         In May 2016, the State filed an information against Phillips in the district court for Lancaster County which alleged one count of unlawful discharge of a firearm, a Class ID felony. Phillips pled no contest to one count of terroristic threats, a Class IIIA felony. On February 8, 2017, the court imposed a sentence of 3 years' imprisonment and 18 months of postrelease supervision and credited Phillips for 339 days served. Phillips was originally scheduled to participate in post-release supervision from September 4, 2017, through March 4, 2019.

         On October 23, 2017, Phillips' probation officer filed a report alleging that Phillips had violated the conditions of his post-release supervision. The report alleged that Phillips had [302 Neb. 688] completed only his first scheduled drug test, which he failed; missed the other seven drug tests that were scheduled; and absconded on September 28. The Lancaster County Attorney's office filed a motion to revoke post-release supervision and sent Phillips a letter advising him to appear and be arraigned at the revocation hearing scheduled for December 6. Phillips failed to appear, and a warrant was issued for his arrest. Phillips was arrested on February 5, 2018.

         On April 16, 2018, the court held the rescheduled hearing on the State's motion to revoke post-release supervision. Phillips entered a plea of no contest, which the court accepted. The court found Phillips guilty of the allegations set forth within the motion for revocation, ordered an updated presentence report, and scheduled a sentencing hearing for May 14.

         At the May 14, 2018, hearing, the district court revoked Phillips' post-release supervision and considered the imposition of additional imprisonment. Phillips argued that the maximum imprisonment he could receive would be 295 days. This figure represented the period of time from the date of revocation, May 14, 2018, to the date Phillips was originally scheduled to complete post-release supervision, March 4, 2019. In addition, Phillips argued that he was entitled to 98 days' credit for the time he spent in jail from his arrest, on February 5, to the date of revocation, May 14.

         The court disagreed on both points. The court started with the figure of 295 days provided by Phillips and added 127 days, which represented the period of time that Phillips had absconded, from September 28, 2017, to the date of Phillips' arrest, February 5, 2018. As a result, the court found that the maximum term of imprisonment that Phillips could receive upon revocation of post-release supervision was 422 days. The court further determined that Phillips was not entitled to credit for the time he spent in jail prior to revocation. As a result, the court ordered Phillips to serve a term of imprisonment of 365 days in the county jail with 0 days' credit for time served. Phillips appealed.

         [302 Neb. 689] ASSIGNMENTS OF ERROR

         Phillips assigns, restated, that the district court erred in (1) extending Phillips' remaining term of post-release supervision upon revocation, (2) failing to give Phillips credit for time served, and (3) imposing an excessive sentence.

         STANDARD OF REVIEW

         Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court.[1] 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.[2] An appellate court will not disturb a decision to impose imprisonment up to the remaining period of post-release supervision after revocation absent an abuse of discretion by the trial court.[3]

         ANALYSIS

         This appeal presents the opportunity to address how a court should calculate a probationer's "remaining period of postrelease supervision"[4] and thus determine the maximum term of imprisonment upon revocation of post-release supervision. We also address whether a probationer is entitled to credit for time served in jail prior to revocation.

         Post-release supervision is a relatively new concept in Nebraska sentencing law, [5] introduced into Nebraska's statutes by 2015 Neb. Laws, L.B. 605, which amended Nebraska law to, among other things, reduce the penalties for certain felonies. Before L.B. 605, Class IIIA felonies were punishable by a maximum of 5 years' imprisonment, a $10, 000 fine, or both, [302 Neb. 690] with no minimum term of imprisonment.[6] L.B. 605 split the sentence for Class IIIA felonies into an initial period of imprisonment for a maximum of 3 years and, if imprisonment is imposed, added a period of post-release supervision having an 18-month maximum and 9-month minimum term.[7]

         The Nebraska Probation Administration Act[8] provides the statutory framework governing post-release supervision. Postrelease supervision is defined as "the portion of a split sentence following a period of incarceration under which a person found guilty of a crime ... is released by a court subject to conditions imposed by the court and subject to supervision by the [Office of Probation Administration]."[9] Post-release supervision is a form of probation.[10] A person sentenced to post-release supervision is referred to as a "[probationer."[11]

         All sentences of post-release supervision are served under the jurisdiction of the Office of Probation Administration and are subject to conditions imposed under § 29-2262 and subject to sanctions authorized under § 29-2266.02.[12] A court may revoke a probationer's post-release supervision upon finding that the probationer has violated one of the conditions of his or her post-release supervision.[13] The court shall not do so except after a hearing upon proper notice where the violation is established by clear and convincing evidence.[14] Clear and convincing evidence means that amount of evidence which produces in [302 Neb. 691] the trier of fact a firm belief or conviction about the existence of a fact to be proved.[15]

         Once a court revokes a probationer's post-release supervision, is must then determine the appropriate term of imprisonment to be imposed. The controlling statute is § 29-2268. which provides:

(2) If the court finds that a probationer serving a term of post-release supervision did violate a condition of his or her post-release supervision, it may revoke the postrelease supervision and impose on the offender a term of imprisonment up to the remaining period of post-release supervision. The term shall be served in an institution under the jurisdiction of the Department of Correctional Services or in county jail subject to subsection (2) of section 28-105.
(3) If the court finds that the probationer did violate a condition of his or her probation, but is of the opinion that revocation is not appropriate, the court may order that:
(e) The probationer's term of probation be extended, subject to the provisions of section 29-2263.

         The parties offer differing views regarding the approach taken by the court in arriving at the 365-day term of imprisonment. Phillips argues the court erred by implementing a hybrid approach under both § 29-2268(2) and (3). He contends that the court proceeded under § 29-2268(2) when it revoked his postrelease supervision, but also proceeded under § 29-2268(3)(e) when the court included the 127 days of absconsion time in calculating the "remaining period of post-release supervision." Phillips argues the court thereby erred, based on our opinion in State v. Kennedy.[16]

         In Kennedy, we determined that once a district court has found a violation of post-release supervision, it may "proceed [302 Neb. 692] under either subsection (2) or subsection (3) of § 29-2268."[17]Phillips also argues that once the court revoked post-release supervision, it could not also extend the term of post-release supervision. Therefore, Phillips contends that the maximum imprisonment the court could have imposed was 295 days. As indicated, 295 days represents the amount of time between the date of revocation and the end date of Phillips' original term of post-release supervision.

         The State argues that the term of imprisonment imposed by the court was appropriate based on the State's interpretation of the phrase "remaining period of post-release supervision" under § 29-2268(2). The State points to our recognition in Kennedy that the Nebraska Probation Administration Act sometimes refers to probation and post-release supervision interchangeably, [18] and other times, separately.[19] The State contends that when the act is read as a whole, the phrase "remaining period of post-release supervision" does not represent a fixed number. The State relies on § 29-2263(5), which provides, "[w]henever a probationer disappears or leaves the jurisdiction of the court without permission, the time during which he or she keeps his or her whereabouts hidden or remains away from the jurisdiction of the court shall be added to the original term of probation" (Emphasis supplied.) The State argues that if the reference to the term of probation under § 29-2263(5) is synonymous with the term of post-release supervision referenced in § 29-2268(2), then the court was free to add Phillips' absconsion time to his "remaining period of post-release ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.