State v. Wines ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/29/2021 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. WINES
Cite as 308 Neb. 468State of Nebraska, appellee, v.
Kevin M. Wines, appellant.
___ N.W.2d ___
Filed February 19, 2021. No. S-20-445.
1. 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.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the
lower court.
3. Statutes: Intent. When interpreting a statute, the starting point and
focus of the inquiry is the meaning of the statutory language, understood
in context.
4. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
5. Statutes. It is not within the province of courts to read meaning into
a statute that is not there or to read anything direct and plain out of
a statute.
6. ____. A court must attempt to give effect to all parts of a statute, and if
it can be avoided, no word, clause, or sentence will be rejected as super-
fluous or meaningless.
7. ____. Statutes relating to the same subject matter will be construed
so as to maintain a sensible and consistent scheme, giving effect to
every provision.
Appeal from the District Court for Madison County: Mark
A. Johnson, Judge. Affirmed.
Jack W. Lafleur, of Moyer, Moyer & Lafleur, for appellant.
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STATE v. WINES
Cite as 308 Neb. 468Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Kevin M. Wines appeals his sentences, arguing that the dis-
trict court erred in its award of credit for time served. We find
no error on the part of the district court and thus affirm.
BACKGROUND
2016 Case.
This appeal involves several criminal proceedings against
Wines. In the first such proceeding, commenced in 2016 (the
2016 case), Wines entered pleas of guilty to one count of
delivery of a controlled substance and one count of attempted
delivery of a controlled substance.
Following his convictions, Wines was sentenced to a term
of probation and ordered to serve 90 days in jail. In July 2018,
while still serving his term of probation, a search of Wines’
residence revealed evidence of drug activity. Wines was there-
after arrested and charged with multiple offenses.
After the arrest, the State filed an information to revoke
Wines’ probation in the 2016 case. In February 2019, the
district court accepted Wines’ admission that he violated his
probation, revoked his probation, and sentenced Wines on his
original convictions. The district court sentenced Wines to
4 to 8 years’ imprisonment for delivery of a controlled sub-
stance and 1 to 2 years’ imprisonment for attempted delivery
of a controlled substance. Wines was awarded 30 days’ credit
for time served. The sentences were ordered to be served
consecutively.
2018 Case.
As mentioned above, in addition to seeking to revoke
Wines’ probation in the 2016 case, the State also filed another
criminal case against Wines in 2018 (the 2018 case). In the
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. WINES
Cite as 308 Neb. 4682018 case, Wines entered a plea of no contest to each of the fol-
lowing charges: attempted possession of marijuana with intent
to distribute, attempted tampering with evidence, attempted
possession of tramadol, possession of ecstasy, and child abuse
or neglect.
In February 2019, the district court accepted Wines’ no con-
test pleas and sentenced him to 2 to 3 years’ imprisonment for
attempted possession of marijuana with intent to distribute, 6
months’ imprisonment for attempted tampering with evidence,
6 months’ imprisonment for attempted possession of tramadol,
1 to 2 years’ imprisonment for possession of ecstasy, and 1
year’s imprisonment for child abuse or neglect. Each of the
sentences were ordered to be served consecutively to the other
sentences imposed in the 2018 case, but concurrently with
Wines’ sentences in the 2016 case. Wines was awarded 14
days’ credit for time served.
Wines timely appealed his sentences in both the 2016 case
and the 2018 case.
Court of Appeals.
Wines’ initial appeal was decided by the Nebraska Court of
Appeals. The Court of Appeals found plain error in both of the
sentences in the 2016 case and two of the sentences in the 2018
case. It otherwise affirmed.
In the appeal of the 2016 case, the Court of Appeals found,
among other things, that the district court should have imposed
determinate sentences for both of Wines’ convictions. The
Court of Appeals vacated the sentences imposed in the 2016
case and remanded the cause with instructions to sentence
Wines to determinate sentences.
In the appeal of the 2018 case, the Court of Appeals also
found that the district court should have imposed determinate
sentences for Wines’ convictions for attempted possession of
marijuana with intent to distribute and possession of ecstasy. It
vacated those sentences and remanded the cause to the district
court with instructions to impose determinate sentences for
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STATE v. WINES
Cite as 308 Neb. 468those offenses. The Court of Appeals found no error in Wines’
other sentences in the 2018 case.
Sentencing Proceedings
on Remand.
In May 2020, the district court held a hearing at which it
resentenced Wines in both the 2016 case and the 2018 case.
After the district court stated that it would address the 2016
case first, Wines’ counsel raised the issue of credit for time
served. Counsel for Wines and counsel for the State agreed
that Wines had served 451 days between the 2019 sentencing
proceeding in both cases and the 2020 resentencing proceed-
ing. In addition, Wines’ counsel explained that he received an
additional 30 days’ credit for time served prior to the 2019 sen-
tencing proceeding in the 2016 case. The district court went on
to sentence Wines in the 2016 case. Wines was sentenced to 4
years’ imprisonment with credit for 481 days served and a term
of postrelease supervision for delivery of a controlled sub-
stance and to 2 years’ imprisonment and a term of postrelease
supervision for attempted delivery of a controlled substance.
The sentences were ordered to be served consecutively.
The district court then considered the 2018 case. Again,
Wines’ counsel raised the issue of credit for time served,
noting that Wines was given 14 days’ credit for time served
in the 2018 case in the initial sentences. The district court
then imposed sentences in the 2018 case. For the conviction
of attempted possession of marijuana with intent to distrib-
ute, the district court sentenced Wines to 24 months’ impris-
onment, with credit for 14 days previously served, and a
period of postrelease supervision. For the conviction of pos-
session of ecstasy, the district court sentenced Wines to 12
months’ imprisonment and a period of postrelease supervision.
It ordered the two new sentences in the 2018 case to be served
concurrently with one another. It also ordered the sentences
in the 2018 case to be served concurrently with the sentences
in the 2016 case. The district court’s sentencing order stated
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STATE v. WINES
Cite as 308 Neb. 468that the other sentences in the 2018 case “shall remain as sen-
tenced previously.”
Wines filed a timely notice of appeal in the 2018 case.
ASSIGNMENT OF ERROR
Wines assigns that the district court erred in its award of
credit for time served in the 2018 case.
STANDARD OF REVIEW
[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. State v. Phillips, 302
Neb. 686, 924 N.W.2d 699 (2019).
[2] Statutory interpretation presents a question of law,
which an appellate court reviews independently of the lower
court. Id.ANALYSIS
Wines argues that the district court failed to award him all
of the credit for time served to which he was entitled for his
sentences in the 2018 case. The district court awarded Wines
14 days’ credit for time served on his sentence for attempted
possession of marijuana with intent to distribute. Wines claims
it should also have awarded him an additional 451 days’ credit
for the time Wines was in custody between his initial sentenc-
ing in February 2019 and his resentencing in May 2020. Wines
acknowledges that the district court applied credit for time
served for the time Wines was in custody between his 2019
sentencing proceeding and his 2020 resentencing proceeding
to his 4-year sentence for delivery of a controlled substance
in the 2016 case. The issue in this case is thus whether Wines
was entitled to have credit for time spent in custody between
his 2019 sentencing proceeding and his 2020 resentencing pro-
ceeding applied to two different sentences which were ordered
to be served concurrently to one another.
Wines and the State agree that any entitlement to credit
for time served in this case is controlled by Neb. Rev. Stat.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. WINES
Cite as 308 Neb. 468§ 83-1,106 (Reissue 2014). As the entirety of § 83-1,106 is rel-
evant to the parties’ arguments, we reprint it in full here:
(1) Credit against the maximum term and any mini-
mum term shall be given to an offender for time spent
in custody as a result of the criminal charge for which a
prison sentence is imposed or as a result of the conduct
on which such a charge is based. This shall specifically
include, but shall not be limited to, time spent in custody
prior to trial, during trial, pending sentence, pending
the resolution of an appeal, and prior to delivery of the
offender to the custody of the Department of Correctional
Services, the county board of corrections, or, in counties
which do not have a county board of corrections, the
county sheriff.
(2) Credit against the maximum term and any mini-
mum term shall be given to an offender for time spent
in custody under a prior sentence if he or she is later
reprosecuted and resentenced for the same offense or for
another offense based on the same conduct. In the case of
such a reprosecution, this shall include credit in accord­
ance with subsection (1) of this section for time spent in
custody as a result of both the original charge and any
subsequent charge for the same offense or for another
offense based on the same conduct.
(3) If an offender is serving consecutive or concurrent
sentences, or both, and if one of the sentences is set aside
as the result of a direct or collateral proceeding, credit
against the maximum term and any minimum term of the
remaining sentences shall be given for all time served
since the commission of the offenses on which the sen-
tences set aside were based.
(4) If the offender is arrested on one charge and pros-
ecuted on another charge growing out of conduct which
occurred prior to his or her arrest, credit against the
maximum term and any minimum term of any sentence
resulting from such prosecution shall be given for all time
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STATE v. WINES
Cite as 308 Neb. 468spent in custody under the former charge which has not
been credited against another sentence.
(5) Credit for time served shall only be given in accord­
ance with the procedure specified in this subsection:
(a) Credit to an offender who is eligible therefor under
subsections (1), (2), and (4) of this section shall be set
forth as a part of the sentence; or
(b) Credit to an offender who is eligible therefor under
subsection (3) of this section shall only be given by the
court in which such sentence was set aside by entering
such credit in the final order setting aside such sentence.
[3-7] In considering the parties’ arguments concerning
§ 83-1,106, we apply our familiar principles of statutory inter-
pretation, which we briefly review here. When interpreting
a statute, the starting point and focus of the inquiry is the
meaning of the statutory language, understood in context. In
re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 307(2020). Our analysis begins with the text, because statutory
language is to be given its plain and ordinary meaning, and an
appellate court will not resort to interpretation to ascertain the
meaning of statutory words which are plain, direct, and unam-
biguous. See id. Neither is it within the province of courts to
read meaning into a statute that is not there or to read anything
direct and plain out of a statute. Parks v. Hy-Vee, 307 Neb. 927,
951 N.W.2d 504 (2020). A court must attempt to give effect to
all parts of a statute, and if it can be avoided, no word, clause,
or sentence will be rejected as superfluous or meaningless. Ash
Grove Cement Co. v. Nebraska Dept. of Rev., 306 Neb. 947,
947 N.W.2d 731 (2020). Statutes relating to the same subject
matter will be construed so as to maintain a sensible and con-
sistent scheme, giving effect to every provision. Id.In support of his argument that the district court erred by
not applying credit for time spent in custody between his
initial sentencing and his resentencing to multiple sentences,
Wines relies on several subsections of § 83-1,106, the first
being § 83-1,106(1). This is not the first time, however,
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STATE v. WINES
Cite as 308 Neb. 468that we have been presented with an argument that under
§ 83-1,106(1), a defendant should have credit for time spent in
custody applied to multiple concurrent sentences.
In State v. Banes, 268 Neb. 805, 688 N.W.2d 594 (2004),
we held that the Court of Appeals erred when it found that a
defendant was entitled to have credit for the same time period
in custody applied to two different concurrent sentences. The
defendant in Banes had been arrested on one charge, released
on bond for that charge, and then arrested on an unrelated
charge after which the district court allowed a refund of the
bond money posted in the first case. At issue was how credit for
time served should be applied for the period of time after the
second arrest and refund of the bond money during which the
defendant was in custody as a result of two unrelated charges.
Considering both subsections (1) and (4) of § 83-1,106, we
held that credit for time served should be applied to only one
sentence. As we explained, “when concurrent sentences are
imposed, the credit is applied once, and the credit applied
once, in effect, is applied against each concurrent sentence.”
Banes, 268 Neb. at 812, 688 N.W.2d at 599. See, also, State v.
Sanchez, 2 Neb. App. 1008, 520 N.W.2d 33 (1994).
Wines acknowledges that we held in Banes that the defend­
ant should have credit applied to only one of his concurrent
sentences, but argues that this case is distinguishable. The
distinction on which he relies is that Banes involved credit
for time the defendant was in custody before any sentence
was pronounced, while this case involves credit for time the
defendant was in custody in between an initial sentencing
and a resentencing. Wines has identified a difference between
the two cases, but we are not convinced that the language of
§ 83-1,106(1) requires that credit should be applied to mul-
tiple sentences under these circumstances. Instead, we observe
that § 83-1,106(1) provides that it applies to time spent in
custody both “pending sentence” and “pending the resolution
of an appeal.” During the period of time at issue here, Wines
was initially in custody pending the resolution of an appeal in
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. WINES
Cite as 308 Neb. 468both the 2016 case and the 2018 case and then, after the Court
of Appeals vacated his sentences and remanded the causes
for resentencing, he was in custody pending sentence in both
cases. We see nothing in the language of § 83-1,106(1) indicat-
ing that credit for time served should be applied to only one
concurrent sentence while a defendant is in custody pending
sentence under circumstances like those in Banes but should be
applied to multiple concurrent sentences when the defendant is
in custody pending the resolution of an appeal and then pend-
ing sentence, as here.
Wines also suggested at oral argument that § 83-1,106(2)
supports his argument that credit for the time period at issue
should have been applied to sentences in both the 2016 case and
the 2018 case. Again, we must disagree. Section 83-1,106(2)
provides that credit for time served should be applied in a
scenario in which the defendant is given a sentence and then
later “reprosecuted and resentenced for the same offense or for
another offense based on the same conduct.” That language has
no application here. Wines was resentenced but never “repros­
ecuted” for the same offense or for another offense based on
the same conduct.
Finally, Wines argues that under § 83-1,106(3), the district
court should have applied credit for time served—for the period
between his initial sentencing and his resentencing—to his sen-
tences in the 2018 case for attempted tampering with evidence,
attempted possession of tramadol, and child abuse or neglect.
These are the three sentences in the 2018 case that were
affirmed by the Court of Appeals in Wines’ first appeal. Wines
argues that such credit should be applied to those sentences
because, in the parlance of § 83-1,106(3), other ­sentences were
“set aside” and those sentences were “remaining.”
We find it unnecessary to determine whether the circum-
stances at issue here fall within the language of § 83-1,106(3).
We reach this conclusion because § 83-1,106(5) provides that
credit for time served can only be given in accordance with
its procedures and further provides that any credit awarded
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. WINES
Cite as 308 Neb. 468under § 83-1,106(3) “shall only be given by the court in which
such sentence was set aside by entering such credit in the final
order setting aside such sentence.” § 83-1,106(5)(b). Thus,
even assuming that § 83-1,106(3) applied when the Court of
Appeals vacated some of Wines’ sentences and not others,
under § 83-1,106(5)(b), any resulting credit for time served
under § 83-1,106(3) could only have been awarded by the
Court of Appeals. As the district court lacked power to award
any credit for time served under § 83-1,106(3), we find it did
not err by not doing so.
The district court awarded Wines 451 days of credit for
time served for the time he was in custody between his 2019
sentencing proceeding and his 2020 resentencing proceeding. It
applied that credit to his 4-year sentence for delivery of a con-
trolled substance in the 2016 case. Having considered Wines’
arguments, we are not persuaded that the district court erred by
not also applying credit for the same time period to his sen-
tences in the 2018 case.
CONCLUSION
Finding no error in the district court’s sentences, we affirm.
Affirmed.