State v. Phillips , 302 Neb. 686 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/17/2019 09:07 AM CDT
- 686 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
State of Nebraska, appellee, v.
Caleb A. Phillips, appellant.
___ N.W.2d ___
Filed March 29, 2019. No. S-18-590.
1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion 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 sen-
tence, clause, or word should be rejected as meaningless or superflu-
ous 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 oth-
erwise, 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 begin-
ning, 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.
- 687 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
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 imprison-
ment 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 impres-
sion, 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 post-
release 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
- 688 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
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.
- 689 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
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
[1,2] 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 post-
release 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 felo-
nies. Before L.B. 605, Class IIIA felonies were punishable by
a maximum of 5 years’ imprisonment, a $10,000 fine, or both,
1
State v. Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018).
2
State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018).
3
See State v. Wal, ante p. 308, 923 N.W.2d 367 (2019).
4
§ 29-2268.
5
See, State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018); Kennedy, supra
note 1.
- 690 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
with no minimum term of imprisonment.6 L.B. 605 split the
sentence for Class IIIA felonies into an initial period of impris-
onment 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 Act8 provides the
statutory framework governing post-release supervision. Post-
release 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 super-
vision is referred to as a “[p]robationer.”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 estab-
lished by clear and convincing evidence.14 Clear and convinc-
ing evidence means that amount of evidence which produces in
6
See, Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014); State v. Aguallo, 294
Neb. 177, 881 N.W.2d 918 (2016).
7
Neb. Rev. Stat. § 28-105 (Cum. Supp. 2018).
8
See Neb. Rev. Stat. §§ 29-2246 to 29-2269 (Reissue 2016 & Cum. Supp.
2018).
9
§ 29-2246(13).
10
See, § 29-2246(4); Dill, supra note 5; Kennedy, supra note 1.
11
§ 29-2246(5).
12
See § 28-105(5).
13
See § 29-2268(2).
14
See § 29-2267(1).
- 691 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
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 supervi-
sion, is must then determine the appropriate term of impris-
onment 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 post-
release 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 sec-
tion 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 imprison-
ment. 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 post-
release 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
15
State v. Johnson, 287 Neb. 190, 842 N.W.2d 63 (2014).
16
Kennedy, supra note 1.
- 692 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
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 interpreta-
tion of the phrase “remaining period of post-release supervi-
sion” 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 con-
tends that when the act is read as a whole, the phrase “remain-
ing 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 dur-
ing 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 supervision.” As a result, the State contends
that the maximum term the court could have imposed was 295
days plus 127 days of absconsion time, for a total of 422 days
17
Id. at 371, 908 N.W.2d at 75 (emphasis supplied).
18
Kennedy, supra note 1. See, e.g., §§ 29-2250, 29-2251, 29-2258, 29-2262,
and 29-2267.
19
Kennedy, supra note 1. See, e.g., §§ 29-2263(2) and (3) and 29-2268(1)
and (2).
- 693 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
of imprisonment. The State argues Phillips’ 365-day term of
imprisonment is therefore valid.
Based on our decision in Kennedy, we agree that once the
district court revoked Phillips’ post-release supervision, it no
longer had available the various options under § 29-2268(3),
including the option to extend the probationer’s term under
§ 29-2268(3)(e). But the district court here was not extending
Phillips’ term of post-release supervision under § 29-2268(3);
it originally sentenced him to 18 months’ post-release supervi-
sion, and that term did not change. Instead, the district court
was simply calculating how much of the 18-month term had
been served, and how much remained to be served, in order to
determine the “remaining period of post-release supervision”
under § 29-2268(2). It did so by considering how many days
Phillips had actually served on post-release supervision. The
district court found the 127 days Phillips had absconded20 from
post-release supervision by purposely avoiding supervision
should not be considered time he had served on the 18-month
term of post-release supervision.
We have not previously considered whether absconsion can
be taken into consideration when calculating the time remain-
ing on a term of post-release supervision under § 29-2268(2).
Nor have we addressed generally how a court is to calcu-
late the “remaining period of post-release supervision” under
§ 29-2268(2). While our analysis differs somewhat from that
of the district court, we ultimately agree with its disposition.
R emaining Period of
Post-R elease Supervision
[3] When interpreting a statute, effect must be given, if pos-
sible, 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.21 An appellate court must look to the statute’s
20
See § 29-2266(1).
21
Kennedy, supra note 1.
- 694 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
purpose and give to the statute a reasonable construction which
best achieves that purpose, rather than a construction which
would defeat it.22
In Kennedy, we noted that the reference to probation in
§ 29-2268(1) was not used interchangeably with the reference
to post-release supervision in § 29-2268(2) and we explained
that the disposition available to a court differs based on whether
a probationer is alleged to have violated the terms of proba-
tion or post-release supervision. We stated that once a district
court finds a violation of post-release supervision, the court
must proceed under either subsection (2) or subsection (3) of
§ 29-2268 and that this statute “does not authorize any disposi-
tion not therein enumerated.”23
Here, the district court proceeded under § 29-2268(2). And,
as part of calculating the time remaining on Phillips’ term
of post-release supervision under § 29-2268(2), it took into
account the number of days Phillips absconded from supervi-
sion. Phillips contends this was error, but we disagree.
When determining the amount of time “remaining” on a
period of post-release supervision, courts are not required to
turn a blind eye to a probationer’s absconsion from supervi-
sion. As the State notes in its brief, to conclude otherwise
would mean that “if a person refuses to comply with the provi-
sions of their post-release supervision or absconds altogether,
as [Phillips] did, the clock keeps running and the period of
noncompliance counts as time served toward the person’s sen-
tence of post-release supervision.”24 The State’s position is in
line with numerous federal courts of appeal which have held
that a defendant’s term of supervised release is tolled dur-
ing a period in which the defendant has absconded from
supervision.25 As the Third Circuit recently observed, to hold
22
Id.
23
Id. at 371, 908 N.W.2d at 75.
24
Brief for appellee at 8.
25
See United States v. Island, 916 F.3d 249 (3d Cir. 2019) (collecting cases).
- 695 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
o­therwise would not serve the rehabilitative goals of super-
vised release and would credit defendants for their misdeeds.26
We agree that noncompliance to the degree of absconsion
suggests that a probationer has ceased serving his or her post-
release supervision sentence, and this fact may be taken into
consideration by a court when calculating the time served on
post-release supervision.
While federal courts have held that a defendant’s term of
supervised release is tolled during a period of absconsion even
though the federal statute is silent on that point,27 our interpre-
tation finds statutory support in § 29-2263(5), which provides:
“Whenever 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.” There are no reported appellate opinions con-
struing or applying this statute, but its purpose is obvious: The
Legislature did not want probationers to be able to hide from
supervision and simultaneously demand credit toward complet-
ing their term of probation or post-release supervision. Stated
differently, a probationer who has absconded has not actually
served those days and can be required to do so. We see no
abuse of discretion in taking this policy into account when
calculating the time remaining on post-release supervision for
purposes of § 29-2268(2).
Here, the district court found Phillips was absconded from
September 28, 2017, to his arrest and detention on February
5, 2018, and it took that into account when determining how
many days he had served on his 18-month period of post-
release supervision and, consequently, how much time was
remaining on his 18-month term. We find no abuse of discre-
tion in considering Phillips’ absconsion in this manner.28
26
Id.
27
See id.
28
See Wal, supra note 3.
- 696 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
We hold that when calculating the “remaining period of
post-release supervision” under § 29-2268(2), courts must first
identify the number of days the probationer was originally
ordered to serve on post-release supervision. As we explain,
this may require converting a term pronounced in a number of
months into one consisting of a number of days. This is done
by counting the number of days from the commencement of
post-release supervision to the date of the revocation, less any
days of absconsion. Finally, the court calculates the “remaining
period of post-release supervision” by subtracting the number
of days actually served from the number of days ordered to
be served.
[4] Section 28-105(1) defines periods of post-release super-
vision in terms of months. When a court has pronounced the
period of post-release supervision in terms of months, that
period will need to be converted to a number of days in order
to calculate the “remaining period of post-release supervision”
under § 29-2268(2). Unless the context shows otherwise, the
word “month” used in a Nebraska statute means “calendar
month.”29 A calendar month is a period terminating with the
day of the succeeding month, numerically corresponding to
the day of its beginning, less one.30 However, we must also
consider Neb. Rev. Stat. § 25-2221 (Reissue 2016), which
provides in part as follows: “Except as may be otherwise more
specifically provided, the period of time within which an act is
to be done in any action or proceeding shall be computed by
excluding the day of the act, event, or default after which the
designated period of time begins to run.”31
Here, Phillips was ordered to serve 18 months’ post-release
supervision commencing September 4, 2017. As a result, bar-
ring any period of absconsion, Phillips would have completed
his post-release supervision on March 4, 2019, which equated
29
Geddes v. York County, 273 Neb. 271, 729 N.W.2d 661 (2007).
30
Id.
31
See State v. Hirsch, 245 Neb. 31, 511 N.W.2d 69 (1994).
- 697 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
to 546 days. We digress to remind the bench and bar that the
outcome of converting a period of months to a number of days
will vary depending on the date that period commences and
the length of the months falling within that particular period.
Here, the 18-month period equated to 546 days. But that will
not always be so, and courts should perform the calculation by
applying the statutory computation rules to the particular facts
of each sentence.
The court found that after serving 24 days of post-release
supervision, Phillips absconded for a period of 127 days.
Because the court found Phillips’ absconsion began on
September 28, 2017, and ended when he was rearrested on
February 5, 2018, he actually was absconded for a period of
130 days. Phillips’ post-release supervision was revoked on
May 14, 2018, 98 days after his rearrest. On the date of revo-
cation, Phillips had actually served 122 days (24+98) of his
original 546-day term of post-release supervision. As a result,
on the date of his revocation, Phillips had 424 days remaining
on his post-release supervision. Our calculations are set forth
in the appendix attached hereto and incorporated herein by
reference. Therefore, the court’s imposition of a 365-day term
of imprisonment was within the statutory range. Phillips’ first
assignment of error is without merit.
Credit for Time Served
This brings us to Phillips’ argument that the court was
required to give him credit for the time he spent in jail pending
revocation. Phillips argues that the presentence investigation
report indicates he served 98 days in jail pending revoca-
tion and that the court erred by awarding Phillips 0 days for
time served. The State argues that Phillips received credit for
the days he spent in jail, because the court did not include
that time when it calculated Phillips’ maximum possible term
of imprisonment upon revocation. As our calculations above
demonstrate, the days Phillips spent in jail pending revocation
are considered days he actually served against his 18-month
period of post-release supervision. As such, those days should
- 698 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
not also be credited against Phillips’ term of imprisonment
upon revocation.
To support his argument for jail credit, Phillips relies upon
Neb. Rev. Stat. § 47-503 (Reissue 2010), which provides in
relevant part:
(1) Credit against a jail term shall be given to any per-
son 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. Such credit shall include, but not be limited to,
time spent in jail . . . .
But § 47-503 does not apply to the time Phillips spent in
jail, because he had not yet been revoked from supervision
and was still serving the post-release supervision portion of his
original split sentence. We find that the 98 days Phillips spent
in jail were not “as a result of the criminal charge for with the
jail term [was] imposed” under § 47-503, but, rather, were a
result of violating the terms of supervision.
The imposition of a term of post-release supervision that
includes conditions is part of the sentence.32 Under Neb. Ct.
R. § 6-1904(A) (rev. 2016), “the court shall, at the time a
sentence is pronounced, impose a term of incarceration and
a term of post-release supervision pursuant to Neb. Rev. Stat.
§ 29-2204.02(1), and shall enter a separate post-release super-
vision order that includes conditions pursuant to Neb. Rev.
Stat. § 29-2262.”
Phillips violated the conditions of his supervision by failing
to report to his probation officer and failing to refrain from
unlawful conduct, and his probation was revoked for these vio-
lations.33 These conditions were imposed upon Phillips under
his original sentence. Phillips did not spend 98 days in jail
prior to revocation as a result of a criminal charge, but, rather,
32
See, Dill, supra note 5; State v. Phillips, 297 Neb. 469, 900 N.W.2d 522
(2017).
33
See § 29-2262(2)(a) and (k).
- 699 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
as a part of the administration of his sentence of post-release
supervision. As explained above, once a court has revoked a
probationer under § 29-2268(2), the court is not authorized to
order any disposition not enumerated therein. The Legislature
has not demonstrated within § 29-2268 that jail credit should
be given for time served prior to revocation. In addition, the
record indicates that Phillips spent time in jail as a result of his
failure to appear.34
The court did not err in denying Phillips’ request for jail
time credit, because it credited the 98 days he spent in jail as
time actually served on his term of post-release supervision.
Phillips’ second assignment of error is without merit.
Court Did Not A buse Discretion
[5,6] Lastly, Phillips claims that the 365-day term of impris-
onment was excessive. Because a court has discretion under
§ 29-2268(2) to impose, upon revocation, any term of impris-
onment up to the remaining period of post-release supervision,
an appellate court will not disturb that decision absent an abuse
of discretion.35 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.36
Based upon the record, which includes the court’s order
imposing imprisonment and a presentence investigation report,
we cannot conclude that the court abused its discretion. The
court’s order stated that it imposed the 365-day term of impris-
onment based on
the nature and circumstances of the crime and the his-
tory, character and condition of [Phillips, and] the pro-
tection of the public, because the risk is substantial
that [Phillips] would engage in additional criminal con-
duct and because a lesser sentence would depreciate the
34
See State v. Heckman, 239 Neb. 25, 473 N.W.2d 416 (1991).
35
See Wal, supra note 3.
36
See State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
- 700 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
seriousness of [Phillips’] crime and promote disrespect
for the law.
Phillips argues that the 365-day term of imprisonment does
not give sufficient weight to his willingness to enter a plea of
no contest to the original charge. However, by entering into the
plea deal, Phillips received the significant benefit of having his
charge reduced from a Class ID felony, with a maximum sen-
tence of 50 years’ imprisonment, to a Class IIIA felony.
Phillips suggests that based on the presentence investiga-
tion report, he expressed remorse, accepted responsibility
for the offense, and “appear[ed] to be in the contemplative
stage of change.” However, Phillips is referring to the report
that was generated for his sentence on the terroristic threats
conviction and not the most recent presentence report. The
presentence report prepared for Phillips’ revocation indicates
that Phillips refused to meet with the probation officer and did
not make a statement for the report. The report that Phillips
refers to indicates that he was “assessed as a very high risk to
re-offend.” When Phillips was arrested after absconding from
supervision, he was charged with possession of a controlled
substance and was found to be in possession of a switchblade
and a BB gun. The court articulated that the 365-day term
of imprisonment reflected a concern for public safety. It was
within the court’s discretion to impose a term of imprisonment
that was approximately 85 percent of the maximum. Phillips’
assignment of error that the court abused its discretion is with-
out merit.
CONCLUSION
The 365-day term of imprisonment imposed by the court
was within the statutory range and was not an abuse of discre-
tion. The court did not err when it denied Phillips’ request for
credit for time served.
A ffirmed.
Freudenberg, J., not participating.
(See page 701 for the appendix.)
- 701 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. PHILLIPS
Cite as 302 Neb. 686
APPENDIX
Calculation of Remaining Term of Post-Release Supervision (PRS)
1. From commencement date of PRS, determine original ending date
(here, a term of 18 months of PRS):
Term began September 4, 2017 First day excluded per
§ 25-2221
Next day September 5, 2017 Beginning date for
calculation of months
18 months March 5, 2019 First step of calendar
forward month method
Back 1 day March 4, 2019 Second step of calendar
month method
Ending date March 4, 2019 Result of § 25-2221 and
calendar month method
2. Calculate original number of days of term of PRS:
Term began September 4, 2017
Term ends March 4, 2019
Number of days per § 25-2221 546 days
3. Calculate number of days of PRS served:
(a) Days from beginning date to date of absconsion:
Term began September 4, 2017
Absconsion began September 28, 2017
PRS days served (per § 25-2221) 24
(b) Days from resumption date to date of revocation:
Arrest and detention February 5, 2018
Revocation May 14, 2018
PRS days served (per § 25-2221) 98
(c) Total number of days served:
From beginning to absconsion 24
From resumption to revocation 98
Total days of PRS served 122
4. From original number of days, subtract days served:
Original number of days 546
Total days of PRS served 122
Number of days remaining 424