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State v. Harms

Supreme Court of Nebraska

November 8, 2019

State of Nebraska, appellee,
v.
Randy R. Harms, Jr., appellant.

         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.___: ___. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         3. Sentences: Statutes. The calculation and application of credit for time served is controlled by statute. Different statutes govern depending on whether the defendant is sentenced to jail or prison.

         4. Sentences. Neb. Rev. Stat. § 47-503 (Reissue 2010) is intended to ensure that defendants receive all the credit against their jail sentence to which they are entitled-no less, and no more.

         5. Sentences: Prisoners: Time. When sentence is pronounced upon one already serving a sentence from another court, the second sentence does not begin to run until the sentence which the prisoner is serving has expired, unless the court pronouncing the second sentence specifically states otherwise. Thus, the applicable rule is that unless the court imposing a later independent sentence specifically states otherwise at the time of its pronouncement, the later sentence is to be served consecutively to any earlier imposed sentence or sentences.

         6. 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.

         7. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         8. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court [304 Neb. 442] must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

         9. Sentences. In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime.

         10.___. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

          Appeal from the District Court for Seward County: James C. Stecker, Judge.

          Nicole J. Tegtmeier, Seward County Public Defender, for appellant.

          Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.

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

          Stacy, J.

         Randy R. Harms, Jr., was convicted of attempted possession of burglar's tools, a Class I misdemeanor, [1] and was sentenced to 1 year in jail with credit for 23 days served. Harms appeals, arguing his sentence was excessive and claiming he was entitled to additional jail credit. Finding no error, we affirm.

         FACTS

         2015 Convictions in Dawson County

         In 2015, Harms was convicted of multiple felony and misdemeanor charges in Dawson County, Nebraska, and was [304 Neb. 443] sentenced to a total of 40 to 120 months in the custody of the Nebraska Department of Correctional Services (DCS). Harms was released on parole in March 2018.

         2018 Conviction in Seward County

         Approximately 2 months later, on May 28, 2018, Harms was arrested in Seward County, Nebraska, and charged with one count of possession of burglar's tools, a Class IV felony.[2] He was lodged in the Seward County jail, and his bond was set at "$10, 000-10%."

         A few weeks later, Harms sent a jail "kite" form to the district court asking to "put in for a PR Bond." Harms stated that his parole had been revoked and that he wanted to return to DCS custody, where he felt his access to medications and medical treatment would be better than in the Seward County jail. After a hearing on June 20, 2018, Harms was allowed to swear to a personal recognizance bond and was released from the Seward County jail directly into DCS custody.

         Harms ultimately pled no contest to attempted possession of burglar's tools, a Class I misdemeanor.[3] On November 19, 2018, he was sentenced to 1 year in the Seward County jail and was ordered to pay $2, 000 in restitution upon his release. Harms was given credit for 23 days served. Harms asked the court to give him additional credit against his jail sentence for the 150 days he spent in DCS custody after he was released on bond from the Seward County jail. The court denied his request.

         Harms filed this timely appeal, which we moved to our docket on our own motion.

         ASSIGNMENTS OF ERROR

         Harms assigns, restated, that the district court erred by (1) awarding him insufficient credit for time served against his jail ...


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