State v. McCulley , 305 Neb. 139 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/13/2020 08:06 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. McCULLEY
Cite as 305 Neb. 139
State of Nebraska, appellee, v.
Jennifer A. McCulley, appellant.
___ N.W.2d ___
Filed February 28, 2020. No. S-19-313.
1. Sentences: Appeal and Error. Sentences within statutory limits will be
disturbed by an appellate court only if the sentence complained of was
an abuse of judicial discretion.
2. ____: ____. An abuse of discretion takes place when the sentencing
court’s reasons or rulings are clearly untenable and unfairly deprive a
litigant of a substantial right and a just result.
3. ____: ____. 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.
4. Sentences: Restitution: Appeal and Error. The rule that a sentence
will not be disturbed on appeal absent an abuse of discretion is applied
to the restitution portion of a criminal sentence, and the standard
of review for restitution is the same as it is for other parts of the
sentence.
5. Sentences: Records. The credit for time served to which a defendant
is entitled is an absolute and objective number that is established by
the record.
6. Sentences: Restitution. Restitution ordered by a court pursuant to Neb.
Rev. Stat. § 29-2280 (Reissue 2016) is a criminal penalty imposed as a
punishment for a crime and is part of the criminal sentence imposed by
the sentencing court.
7. Restitution: Appeal and Error. On appeal, an appellate court does not
endeavor to reform the trial court’s order. Rather, the appellate court
reviews the record made in the trial court for compliance with the statu-
tory factors that control restitution orders.
8. Criminal Law: Restitution: Damages. Pursuant to Neb. Rev. Stat.
§ 29-2281 (Reissue 2008), before restitution can be properly ordered,
the trial court must consider (1) whether restitution should be ordered,
(2) the amount of actual damages sustained by the victim of a crime,
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and (3) the amount of restitution a criminal defendant is capable
of paying.
9. Sentences: Records. Neb. Rev. Stat. § 29-2260 (Reissue 2008) does not
require the trial court to articulate on the record that it has considered
each sentencing factor, and it does not require the court to make specific
findings as to the factors and the weight given them.
10. Sentences: Appeal and Error. The failure of the trial court to make
specific findings concerning the factors set forth in Neb. Rev. Stat.
§ 29-2260 (Reissue 2008) cannot in itself be error or grounds for
reversal.
11. Sentences. The appropriateness of a sentence is necessarily a subjec-
tive 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.
12. Sentences: Evidence. A sentencing court has broad discretion as to
the source and type of evidence and information which may be used
in determining the kind and extent of the punishment to be imposed,
and evidence may be presented as to any matter that the court deems
relevant to the sentence.
13. Rules of Evidence: Presentence Reports. Statements made by a
defend­ant during a presentence investigation regarding his or her finan-
cial condition are the defendant’s own statements and would be allow-
able evidence against him or her under the Nebraska Evidence Rules.
14. Courts: Plea Bargains. In Nebraska, a court is never bound by the plea
agreement made between a defendant and the government.
Appeal from the District Court for Buffalo County: Ryan C.
Carson, Judge. Affirmed.
D. Brandon Brinegar, Deputy Buffalo County Public
Defender, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
Jennifer A. McCulley appeals her plea-based convictions
and sentences. The plea agreement involved a promise by
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STATE v. McCULLEY
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McCulley to pay restitution related to several financial crimes
in exchange for the State’s reducing some of the charges and
dismissing other charges against her. After the pleas were
entered, but before sentencing, McCulley absconded from
Nebraska to Oregon for nearly 8 years. She was eventually
arrested, extradited back to Nebraska, and sentenced. McCulley
appeals her sentences as excessive, claiming that the court
erred in its calculation of credit for time served and in failing
to consider her inability to pay the restitution and costs ordered
as part of her sentences.
BACKGROUND
In November 2010, David McConnell engaged an agency
in Grand Island, Nebraska, to provide in-home care for his
wife. Shortly thereafter, McCulley began employment, through
that agency, in the McConnell home. McConnell explicitly
instructed McCulley that she was not to handle any money
or financial transactions on behalf of McConnell’s wife. In
December, McConnell’s bank contacted him about the pos-
sibility that one of his checks had been forged. He looked
into the matter and discovered that a number of his checks
had been used by McCulley to make unauthorized purchases.
A law enforcement investigation located store surveillance
videos showing McCulley as the individual passing the
forged checks. The investigation further identified multiple
instances of McCulley’s fraudulent misuse of the McConnells’
credit cards.
McCulley was originally charged with seven counts related
to the unauthorized use of McConnell’s financial accounts and
the misuse of the McConnells’ credit cards. These charges
included three felony counts and four misdemeanors. McCulley
and the State reached a plea agreement whereby four counts
were dismissed and the felony counts were reduced to misde-
meanors in exchange for pleas that included restitution to the
businesses defrauded by the transactions, as well as restitution
to the McConnells. The plea agreement specified the amount of
each victim’s damages.
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STATE v. McCULLEY
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After entering her pleas, McCulley was released on bond
until her sentencing hearing. During this period of time,
McCulley absconded to Oregon.
In late 2018, McCulley was arrested in Oregon and extra-
dited to Nebraska. She then appeared for a contempt hearing,
was found in contempt of court for fleeing the jurisdiction, and
was sentenced to 30 days in jail. McCulley indicated to the
court that she went to Oregon to take care of her children and
was not trying to flee criminal punishment. The court ordered
McCulley to cooperate with updating the presentence inves-
tigation report (PSI), which was to include an update of the
calculation of time served.
A sentencing hearing was held in February 2019. At the
hearing, defense counsel was given an option to provide the
court with any changes or amendments to the updated PSI
and declined to do so. Defense counsel informed the court
that McCulley went to Oregon to take care of her children,
one of whom requires full-time medical care. Defense coun-
sel recounted the plea agreement and repeatedly mentioned
that McCulley had agreed to pay restitution as a part of that
agreement. Defense counsel affirmed McCulley’s willingness
to pay restitution.
Defense counsel asked for credit for time served of 20 days.
When the court asked for clarification based on the time served
in the contempt charges, however, defense counsel requested
271⁄2 days.
After recounting the plea agreement and McCulley’s will-
ingness to pay restitution, defense counsel then raised the
court’s statutory duty pursuant to Neb. Rev. Stat. § 29-2281
(Reissue 2008) to consider factors related to McCulley’s ability
to pay restitution. While raising the statutory inquiry, defense
counsel reiterated that McCulley is willing to pay restitution.
At no point did counsel directly suggest that McCulley would
be unable to pay restitution. Defense counsel explained that
McCulley had the assistance of family to pay restitution if
ordered. The court inquired about how much time McCulley
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STATE v. McCULLEY
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would need for restitution, and defense counsel indicated that
it could be paid by McCulley’s mother on her behalf within 90
days of McCulley’s release.
The court made several comments on the record in consider-
ation of the sentencing factors. The court also asked McCulley
if she had income during the prior 8 years. McCulley responded
that she did not work during that time; her only source of
income was her son’s Social Security payments. However, her
PSI recounts that McCulley intended to seek part-time employ-
ment when she returns to Oregon.
The court sentenced McCulley to three concurrent 1-year
periods of incarceration and ordered the payment of restitu-
tion pursuant to the parties’ plea agreement. McCulley was
further ordered to pay the court costs and extradition expenses
incurred by the State. Finally, the court found that McCulley
was to receive credit for 27 days served spent in custody dur-
ing the pendency of this matter.
ASSIGNMENTS OF ERROR
On appeal, McCulley asserts that the trial court erred in (1)
imposing excessive sentences, (2) failing to give her credit for
all of her time previously served, and (3) ordering her to pay
restitution and costs without ascertaining ability to pay pursu-
ant to § 29-2281.
STANDARD OF REVIEW
[1] Sentences within statutory limits will be disturbed by
an appellate court only if the sentence complained of was an
abuse of judicial discretion.1
[2] An abuse of discretion takes place when the sentencing
court’s reasons or rulings are clearly untenable and unfairly
deprive a litigant of a substantial right and a just result.2
1
State v. McBride, 27 Neb. Ct. App. 219, 927 N.W.2d 842 (2019) (petition for
further review denied June 28, 2019).
2
Id.
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[3] 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
[4] The rule that a sentence will not be disturbed on appeal
absent an abuse of discretion is applied to the restitution por-
tion of a criminal sentence, and the standard of review for
restitution is the same as it is for other parts of the sentence.4
ANALYSIS
At oral arguments, McCulley conceded that her assignment
of error alleging excessive sentences in relation to the period
of incarceration ordered is moot because she has completed
serving the sentences.5 We agree and do not address it further.
With regard to her remaining assignments of error, we find
that the record supports the credit for time served as calcu-
lated at the sentencing hearing and that there is sufficient
evidence in the record to support the order for restitution
and costs.
Time Served
[5] We first address McCulley’s assignment of error con-
cerning credit for time served. McCulley asserts that the court
incorrectly calculated the time served and requests that the
credit for additional time served be applied to the court costs.
Neb. Rev. Stat. § 83-1,106 (Reissue 2014) creates the require-
ment for the court to determine and apply credit for time
served. The credit for time served to which a defendant is
entitled is an absolute and objective number that is established
by the record.6
When calculating the time served, the sentencing court iden-
tified the days accounted for in the evidence and the PSI. The
3
State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019).
4
State v. McMann, 4 Neb. Ct. App. 243, 541 N.W.2d 418 (1995).
5
See Applied Underwriters v. S.E.B. Servs. of New York, 297 Neb. 246, 898
N.W.2d 366 (2017).
6
State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018).
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court referenced the updated PSI and gave defense counsel the
opportunity to present any additional evidence related to time
served. Defense counsel recounted the arrests on record in the
PSI and did not present any evidence of additional time served.
Based on our review of the record before us, the calculation for
time served was correct.
Restitution
The remaining assignment of error asserts that the trial
court abused its discretion by ordering restitution where the
record allegedly did not support McCulley’s ability to pay. We
find that the record is sufficient to demonstrate that the court
conducted the inquiry mandated by Neb. Rev. Stat. § 29-2280
(Reissue 2016), and McCulley has failed to demonstrate that
the court otherwise abused its discretion in ordering restitu-
tion. While an ability to pay is not a necessary prerequisite
under § 29-2280 to an order of restitution, the record supports
McCulley’s ability to pay. We find no merit to McCulley’s con-
tention that the district court improperly balanced McCulley’s
earning ability, employment status, financial resources, and
family or other legal obligations against her obligations to the
victims of her crimes, especially when McCulley agreed to pay
restitution in the amount ordered as a means of obtaining the
benefit of a plea agreement.
[6,7] Restitution ordered by a court pursuant to § 29-2280
is a criminal penalty imposed as a punishment for a crime
and is part of the criminal sentence imposed by the sentenc-
ing court.7 On appeal, we do not endeavor to reform the trial
court’s order. Rather, we review the record made in the trial
court for compliance with the statutory factors that control
restitution orders.8 The rule that a sentence will not be dis-
turbed on appeal absent an abuse of discretion is applied to
7
State v. St. Cyr, 26 Neb. Ct. App. 61, 916 N.W.2d 753 (2018) (petition for
further review denied Aug. 21, 2018).
8
See State v. Mick, 19 Neb. Ct. App. 521, 808 N.W.2d 663 (2012).
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the restitution portion of a criminal sentence just as it is to any
other part of the sentence.9
[8] Neb. Rev. Stat. § 29-2280 et seq. (Reissue 2008) vests
trial courts with the authority to order restitution for actual
damages sustained by the victim of a crime for which the
defendant is convicted.10 Section 29-2281 elaborates that before
restitution can be properly ordered, the trial court must con-
sider (1) whether restitution should be ordered, (2) the amount
of actual damages sustained by the victim of a crime, and (3)
the amount of restitution a criminal defendant is capable of
paying.11 Section 29-2281 provides in full:
To determine the amount of restitution, the court may
hold a hearing at the time of sentencing. The amount of
restitution shall be based on the actual damages sustained
by the victim and shall be supported by evidence which
shall become a part of the court record. The court shall
consider the defendant’s earning ability, employment sta-
tus, financial resources, and family or other legal obliga-
tions and shall balance such considerations against the
obligation to the victim. A person may not be granted or
denied probation or parole either solely or primarily due
to his or her financial resources or ability or inability to
pay restitution. The court may order that restitution be
made immediately, in specified installments, or within a
specified period of time not to exceed five years after the
date of judgment or defendant’s final release date from
imprisonment, whichever is later. Restitution payments
shall be made through the clerk of the court ordering res-
titution. The clerk shall maintain a record of all receipts
and disbursements.
Although resititution, like any other part of the sentence,
involves discretion, we have also held that sentencing courts
9
State v. McMann, supra note 4.
10
See State v. Mick, supra note 8.
11
See State v. Wells, 257 Neb. 332, 598 N.W.2d 30 (1999).
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must meaningfully consider the evidence and weigh the statu-
tory factors set forth in § 29-2281 to determine whether restitu-
tion is appropriate.12 This is similar to the court’s obligations
to weigh the statutuory factors set forth in Neb. Rev. Stat.
§ 29-2260 (Reissue 2008) in determining whether or not to
impose a period of incarceration for an offender convicted of
either a misdemeanor or a felony for which mandatory or man-
datory minimum imprisonment is not specifically required. We
thus look to case law applying § 29-2260 for guidance in our
application of § 29-2281.
We have said that § 29-2260 is a directive to the trial
court as to certain factors to be considered in imposing the
sentence,13 but also that § 29-2260 does not control the trial
court’s discretion in its conclusion reached as to the proper
sentence to be imposed, after weighing the statutory factors.14
The specified factors must be “accorded weight,” but they are
neither exclusive of other factors nor “controlling the discre-
tion of the court.”15 Our review of an alleged abuse of the
sentencing judge’s discretion in refusing to withhold imprison-
ment under § 29-2260 must recognize the statutory guidelines
set out in § 29-2260 for the direction of the sentencing judge
in imposing or withholding imprisonment,16 but the factors are
not mathematically applied.17
[9,10] We have held, further, that § 29-2260 does not require
the trial court to articulate on the record that it has considered
each sentencing factor, and it does not require the court to
make specific findings as to the factors and the weight given
them.18 Thus, the absence of specific findings concerning the
12
See State v. Yost, 235 Neb. 325, 455 N.W.2d 162 (1990).
13
See State v. Hunt, 214 Neb. 214, 333 N.W.2d 405 (1983).
14
See id.
15
§ 29-2260(3).
16
State v. Jallen, 218 Neb. 882, 359 N.W.2d 816 (1984).
17
State v. McBride, supra note 1.
18
See State v. Hunt, supra note 13.
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factors set forth in § 29-2260 cannot in itself be error or
grounds for reversal.19
[11] We have held that in reviewing a sentence that fails to
withhold imprisonment, the appropriateness of the 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.20 We review a sentence that is within the statutory limits
for an abuse of discretion by examining whether it is supported
by the evidence.21
These same principles apply to an appeal of an order of
restitution as part of the sentence. Section 29-2281 mandates
that “[t]he court shall consider the defendant’s earning ability,
employment status, financial resources, and family or other
legal obligations,” as well as the defendant’s “obligation to the
victim,” balancing one set of circumstances against the other.
Though it is always good practice for district courts to provide
a record of their reasoning, like § 29-2260, § 29-2281 does not
require the sentencing court to specifically articulate that it has
considered the listed statutory factors. It also does not require
that trial courts make explicit findings as to facts pertaining to
the statutory factors or the relative weight given to each fac-
tor. The absence of articulated findings is not in itself revers-
ible error.
We disapprove of the Nebraska Court of Appeals’ opinions
in State v. Mick 22 and State v. St. Cyr 23 to the extent that they
suggest otherwise. We clarify here that absent evidence to the
contrary, we presume that the sentencing court has consid-
ered the appropriate factors to be weighed before determining
19
See id.
20
State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019).
21
See, State v. McBride, supra note 1; Neb. Rev. Stat. § 29-2308 (Reissue
2008). See, generally, State v. Manjikian, supra note 20.
22
State v. Mick, supra note 8.
23
State v. St. Cyr, supra note 7.
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whether to order restitution. As always, the burden is on
the appellant to show that the sentencing court has abused
its discretion.24
Like with § 29-2260, the listed factors of § 29-2281 are nei-
ther exhaustive nor mathematically applied, and the court’s ulti-
mate determination of whether restitution should be imposed is
a matter of discretion that is not controlled by § 29-2281. In
fact, by its plain language, § 29-2281 does not require that
the defendant be able to pay as a prerequisite to an order of
restitution—so long as the defendant is not “granted or denied
probation or parole either solely or primarily due to his or her
financial resources or ability or inability to pay restitution,”
which could run afoul of due process and equal protection
principles.25 While the factors of the defendant’s earning abil-
ity, employment status, financial resources, and family or other
legal obligations principally implicate the extent to which
a defendant is able to pay restitution, notably absent from
§ 29-2281 is any indication that the court lacks discretion,
when balancing those factors against the defendant’s obliga-
tion to the victim and other considerations, to order restitution
as part of a sentence despite an inability to pay. Those factors
need only be given meaningful weight. We note that in the
federal system, certain crimes require an order of restitution
regardless of ability to pay26 and orders of restitution have been
held not to violate due process or equal protection despite an
inability to pay, so long as the defendant is not later subjected
to increased imprisonment or a period of imprisonment beyond
the statutory maximum solely on the basis of indigency.27
24
See State v. McMann, supra note 4.
25
See Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221
(1983).
26
See 18 U.S.C. § 3663A (2012).
27
See U.S. v. Dubose, 146 F.3d 1141, 1142 (9th Cir. 1998) (upholding
constitutionality of federal “Mandatory Victims Restitution Act” and
§ 3663A). See, also, Annot., 20 A.L.R. Fed. 2d 239 (2007).
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Thus, even if we were to accept McCulley’s argument
that she was, at the time of sentencing, unable to pay restitu-
tion, that would not end our inquiry. McCulley’s sentences
presented no issue pertaining to McCulley’s being granted
or denied probation or parole, because the court made it
clear on the record that probation would not be ordered
because McCulley had absconded. Under such circumstances,
§ 29-2281 required only that McCulley’s “earning ability,
employment status, financial resources, and family or other
legal obligations” be “consider[ed]” and “balanc[ed]” against
her “obligation[s] to the victim[s].” The record clearly dem-
onstrates that the district court held a hearing in which evi-
dence was adduced that enabled the court’s consideration
under § 29-2281 of the statutory factors relevant to restitu-
tion. The court asked several questions of McCulley and
her counsel concerning her employment and other financial
resources. The court also relied on information contained
in the PSI. This was sufficient to satisfy the mandate under
§ 29-2281 that the court “consider” earning ability, employ-
ment status, financial resources, and family or other legal
obligations.
[12,13] To the extent that State v. Wells 28 stands for the
proposition that the evidence pertaining to the statutory con-
siderations must be “sworn,” we disapprove of it. A sentenc-
ing court has broad discretion as to the source and type of
evidence and information which may be used in determining
the kind and extent of the punishment to be imposed, and evi-
dence may be presented as to any matter that the court deems
relevant to the sentence.29 Furthermore, statements made by
a defendant during a presentence investigation regarding his
or her financial condition are the defendant’s own statements
and would be allowable evidence against him or her under
28
State v. Wells, supra note 11, 257 Neb. at 341, 598 N.W.2d at 37.
29
See State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).
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the Nebraska Evidence Rules.30 We find that the court com-
plied with § 29-2281.
Once it is established that the court has meaningfully con-
sidered the evidence and weighed the statutory factors, an
appeal attacking a sentence imposing restitution is simply an
allegation that the sentence is excessive. A restitution order
is reviewed for compliance with the factors from § 29-2281
rather than § 29-2260, but the procedures for challenging and
reviewing the sentence are the same. The rule that a sentence
will not be disturbed on appeal absent an abuse of discretion is
applied to the restitution portion of a criminal sentence, and the
standard of review for restitution is the same as it is for other
parts of the sentence.31
[14] Because this case involved a plea agreement in which
the defendant agreed to restitution, such an agreement is rel-
evant to establishing whether the court abused its discretion.32
In Nebraska, a court is never bound by the plea agreement
made between a defendant and the government.33 But in only
the rarest instances34 do we fail to affirm a sentence that was
contemplated by the parties’ plea agreement.35 The same is
true when the sentence involves restitution. A judicial abuse
of discretion exists only when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying a just result in matters submit-
ted for disposition.36 It cannot usually be said that the trial
30
See, Neb. Rev. Stat. § 27-801(4)(b)(i) (Reissue 2016); State v. Holecek,
260 Neb. 976, 621 N.W.2d 100 (2000).
31
State v. McMann, supra note 4.
32
See, generally, State v. Elliott, 21 Neb. Ct. App. 962, 845 N.W.2d 612 (2014).
33
State v. Landera, 285 Neb. 243, 826 N.W.2d 570 (2013).
34
See State v. Leahy, supra note 6.
35
See, State v. Alegria, 198 Neb. 750, 255 N.W.2d 419 (1977); State v.
Kirby, 25 Neb. Ct. App. 10, 901 N.W.2d 704 (2017); State v. Moore, 4 Neb.
App. 564, 547 N.W.2d 159 (1996).
36
State v. Ralios, 301 Neb. 1027, 921 N.W.2d 362 (2019).
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judge’s ruling requiring restitution as part of the sentence is
clearly untenable when the defendant has agreed as part of
a plea agreement to the specific amount of restitution ulti-
mately imposed.
In any event, there is no merit to McCulley’s argument
that the court abused its discretion, because the record dem-
onstrated that she was able to pay the restitution ordered. As
the district court observed, although McCulley indicated she
was currently unemployed and taking care of a sick child,
McCulley’s unemployment was voluntary and it was likely
that she could find gainful employment and still care for her
children. McCulley had gainful employment prior to her flight
to Oregon. She also has had the assistance of her mother in
supporting and caring for her children. McCulley stated in
the PSI that she is intending to seek part-time employment
when she returns to Oregon. This is a situation similar to that
presented in State v. Hosack,37 where the defendant remained
voluntarily unemployed to take care of his disabled parents
and help his grandmother and we held that when a court is
considering the required factors under § 29-2281, the court can
give weight to the fact that a defendant’s status as unemployed
is voluntary.
Nothing in the record before us demonstrates that McCulley
is unable to find work and to provide appropriate care for her
children. We also find relevant to McCulley’s ability to pay
her representations that her mother could provide the funds to
satisfy the order of restitution. When the court inquired as to
the timeframe McCulley would need to repay the restitution,
counsel indicated that it could be paid within 90 days through
help from McCulley’s mother.
McCulley does not challenge the method and manner of
restitution ordered as unreasonable,38 and indeed we observe
that the court structured the repayment based on a timeframe
37
See State v. Hosack, 12 Neb. Ct. App. 168, 668 N.W.2d 707 (2003).
38
See, State v. Wells, supra note 11; State v. Hosack, supra note 37.
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requested by McCulley. McCulley concedes that the restitution
reflected the correct amount of the victims’ damages, which
she had agreed to pay as part of the plea agreement. On these
facts, we find no abuse of discretion by the court in its sen-
tences that included ordering restitution and costs. We hold that
the inquiry by the court into McCulley’s ability to pay satisfied
the requirements of § 29-2281 and that the evidence in the
PSI, McCulley’s prior plea agreement to pay restitution, and
McCulley’s representation of her ability to pay at the sentenc-
ing hearing all provide sufficient factual support for the resti-
tution ordered as part of the sentences. Nothing in the record
suggests that the order of restitution was clearly untenable,
unfairly depriving McCulley of a substantial right and denying
a just result.
CONCLUSION
For the foregoing reasons, we hold that McCulley’s assign-
ment of error related to excessive sentences of incarceration is
moot. We affirm the district court’s calculation of time served
and the order of costs and restitution as part of the sentences.
Affirmed.