State v. Jimenez-Carmenates ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. JIMENEZ-CARMENATES
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JOEL JIMENEZ-CARMENATES, APPELLANT.
Filed November 19, 2019. No. A-19-255.
Appeal from the District Court for Hall County: PAUL W. KORSLUND, Judge. Conviction
affirmed. Sentence vacated, and cause remanded for resentencing.
Mitchell C. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.
MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
BISHOP, Judge.
INTRODUCTION
After a bench trial in the Hall County District Court, Joel Jimenez-Carmenates was
convicted of first degree forgery and sentenced to 3 years’ imprisonment and 24 months’
postrelease supervision. On appeal, he disputes the sufficiency of the evidence underlying his
conviction, the absence of a presentence interview, and the order of postrelease supervision. We
affirm his conviction. However, we vacate Jimenez-Carmenates’ sentence and remand the cause
for resentencing.
BACKGROUND
In October 2015, Jimenez-Carmenates was charged in the county court for Hall County
with one count of first degree forgery allegedly committed on June 6, 2015, against Union Bank
& Trust (Bank). An arrest warrant was issued in October 2015, but was recalled in November
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2017, at which time Jimenez-Carmenates appeared before the county court “via JABBER from
Lancaster County Jail, Lincoln.” Jimenez-Carmenates subsequently waived his right to a
preliminary hearing and the case was bound over to the district court. On January 3, 2018, the State
filed an information, charging Jimenez-Carmenates as it had in the county court. A jury trial was
set for December after several continuances were granted at Jimenez-Carmenates’ request.
Trial began on December 10, 2018. Jimenez-Carmenates, with the aid of an interpreter,
indicated his wish to try the case to a judge rather than a jury, and he waived his right to a jury
trial. Defense counsel informed the district court that Jimenez-Carmenates would consider a plea
offer “over the evening.” The parties were to return the next day for a bench trial. On December
11, Jimenez-Carmenates appeared with his counsel and an interpreter and trial commenced. The
State’s evidence consisted of testimony from individuals who performed asset protection roles at
the impacted stores in 2015, testimony from an investigator, and exhibits related to the
investigation. The defense’s evidence consisted of Jimenez-Carmenates’ own testimony.
The parties stipulated that the Bank maintained certain bank accounts (identified by the last
four numbers of each account number) for four account holders (names not repeated here). We
refer to the account holders as paired with his or her bank account number as Customer 1, Customer
2, Customer 3, and Customer 4. The parties further stipulated that each customer’s account number
was used in unauthorized transactions at a wholesale store and a department store in Grand Island,
Nebraska, on June 6 and June 9 of 2015, and that the Bank covered the charges associated with
those transactions. The court accepted those stipulations.
Deborah Irvine testified that she worked as an asset protection manager at the wholesale
store in Grand Island in June 2015. She explained that a person has to be a member to shop there.
The wholesale store has “self-checkout” registers, and Irvine believed those were available in June.
When using one, an individual must first swipe his or her membership card. The receipt from the
transaction reflects whose membership card was swiped. At some point, she learned of fraudulent
transactions that had occurred at the store on June 6 and June 9. Irvine provided the Grand Island
Police Department with the name of the membership card “that was used,” receipts, and videos.
The wholesale store had surveillance video focused on each register, the store exit, and outside
(the parking lot). She identified exhibits 2 and 10 as containing surveillance video that she put
together and provided to Investigator Daron Lindgreen. Irvine recognized exhibit 7 as “electronic
journals” or receipts that asset protection managers could “pull” on a membership. She said the
membership account she was looking under would have been “Joel Jimenez-Carmenates.” Irvine
admitted that “other people” besides a member can use that member’s membership card.
Kasmira Kent said that she was working as an asset protection associate at a department
store in Grand Island in June 2015. The department store had surveillance videos throughout the
store, including over the registers and focused at entrances and exits, and in the parking lot. Every
transaction on registers was recorded on a system, to which Kent had access to print any receipt.
She could download and make copies of video footage recorded by the surveillance. She could not
“edit it or anything” but could save (video footage) and put it onto a “disc” or print “still shots
from the video.” Kent recognized exhibit 1 as a video showing the department store that was
downloaded from its system; her manager at the time would have prepared that video. Kent
identified exhibit 9 as a receipt from a transaction in the department store.
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Investigator Lindgreen testified that he had worked as a police officer in Grand Island for
about 11½ years and had been an investigator since 2013. He said he had received various
specialized training related to investigating credit card fraud and forgery. He described how bank
card information can be illegally acquired and transferred onto anything with a magnetic strip. He
said officers responded to the matter involving Jimenez-Carmenates’ wholesale store membership
account on June 13, 2015; the matter was then assigned to Investigator Lindgreen. Shortly after
that, he received a report from an investigator with the Lincoln Police Department that was found
to be related in that the “[Bank] had reported the compromise of several customers’ card numbers
in which the customers [possessed] the cards, but the card numbers had been somehow obtained
and used fraudulently all across [Nebraska],” including Grand Island.
The Bank gave Investigator Lindgreen a spreadsheet showing all of the compromised
accounts and the dates, locations, amounts, and approximate times of the transactions. From that,
he compiled his own spreadsheet (exhibit 3) of transactions that he was concerned about with
respect to Jimenez-Carmenates. Exhibit 3 shows that the stores implicated were both located on
North Diers Avenue in Grand Island, and that the following transactions took place on June 6,
2015: Customer 1’s account information was used at the wholesale store for transactions at 12:51
p.m., 12:52 p.m., and 12:53 p.m. for purchases of $105.38, $149.92, and $105.38, respectively;
Customer 2’s account information was used at the wholesale store at 1:07 p.m. and 1:08 p.m., each
for purchases of $206.94; and Customer 1’s account information was used at the department store
at 1:42 p.m. for a $31.03 purchase. On June 9, Customer 4’s account information was used at the
wholesale store at 12:38 p.m. for a purchase of $110.86, and Customer 3’s account information
was also used there at 12:42 p.m. for a $206.94 purchase. The investigator indicated that the
fraudulent transactions involved copied card information.
Investigator Lindgreen received receipts (exhibit 7) and surveillance video (exhibits 2 and
10) from Irvine of the fraudulent transactions which occurred at the wholesale store. Investigator
Lindgreen was not familiar with Jimenez-Carmenates’ name until he received that information;
Jimenez-Carmenates’ name was shown on the receipts. Investigator Lindgreen “searched” for
Jimenez-Carmenates in the police department’s local database and in the “Nebraska Criminal
Justice Information System” (NCJIS). The local database had a photograph of
Jimenez-Carmenates from “either 2014 or 2015” (exhibit 5) and NCJIS contained his Nebraska
driver’s license photograph (exhibit 6). To document any changes to appearance over time,
Investigator Lindgreen had viewed Jimenez-Carmenates’ “booking” photograph (exhibit 4) from
“within the last two months.” During trial, the investigator identified the defendant as
Jimenez-Carmenates.
Investigator Lindgreen testified about the video evidence as it was played in court.
Generally, he matched transactions listed on his spreadsheet and the receipt information for those
transactions to surveillance video of those transactions.
As the surveillance video from the wholesale store (exhibit 2) played, the investigator
identified Jimenez-Carmenates as the individual in a dark blue T-shirt who completed the
fraudulent transactions at the wholesale store on June 6, 2015. The investigator described how the
transactions were completed at 12:51 p.m., 12:52 p.m., and 12:53 p.m. Jimenez-Carmenates
walked out of view of the video from 12:54 p.m. until about 1:03 p.m. Another transaction was
completed at about 1:07 p.m. An individual wearing a cowboy hat and another wearing a white
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baseball hat and white T-shirt appear around that time. The investigator said he had watched them
(and Jimenez-Carmenates) and a man in a red hat go “to and from the same vehicle, and through
all of the transactions on different dates at different locations they were all with each other at some
point.” After another purchase around 1:08 p.m., Jimenez-Carmenates is seen talking to the
individual in a white baseball hat and white T-shirt. “[O]ne of the cards that [Jimenez-Carmenates]
was able to use was then transferred to [that individual], who then uses that card as well to complete
a transaction.” The investigator indicated that at about 1:09 p.m., Jimenez-Carmenates is seen
leaving the wholesale store holding some of the same items observed at the registers. The
investigator said a video showed the four suspects getting into the same vehicle, which departed
at 1:26 p.m.
Investigator Lindgreen had also received documentation (exhibit 9) and surveillance video
(exhibit 1) from Kent’s manager at the department store. Referring to the surveillance video dated
June 6, 2015, Investigator Lindgreen identified the individual who came into view of a register at
about 1:42 p.m. as Jimenez-Carmenates. His identification was premised on the department store
video taking place about 30 minutes after the wholesale store video and Customer 1’s card being
used at the department store after being used at the wholesale store “30 minutes prior.” Also, the
investigator said the “clothing was an exact match” of “a dark blue T-shirt, jean shorts, [and]
sandals.” He believed the individuals who were with Jimenez-Carmenates at the wholesale store
were also with him at the department store.
According to Investigator Lindgreen, surveillance video from the wholesale store (exhibit
10) contained the fraudulent transactions at the wholesale store on June 9, 2015. While exhibit 10
was published, Investigator Lindgreen identified an individual as Jimenez-Carmenates. The
investigator described viewing transactions made by Jimenez-Carmenates that corresponded to
those listed on the investigator’s spreadsheet of transactions (exhibit 3) as occurring at 12:38 p.m.
and 12:42 p.m. at the wholesale store on June 9. The investigator said exhibit 8 was a photograph
(retrieved from surveillance video) of Jimenez-Carmenates exiting the wholesale store on June 9.
Investigator Lindgreen said the total loss to the Bank associated with transactions involving
Jimenez-Carmenates was over $20,000, but the total found attributable to Jimenez-Carmenates in
Grand Island was $1,123.39. Investigator Lindgreen indicated that there were other transactions
conducted by the other individuals who accompanied Jimenez-Carmenates. The investigator
identified by name three other suspects, two of whom made purchases using a wholesale store
membership account listed under Jimenez-Carmenates’ name; several of those purchases were
done at about the same time as the transactions discussed during trial. During the course of his
investigation of Jimenez-Carmenates, Investigator Lindgreen was investigating two of the other
three suspects he had identified and found they had visited and/or previously lived in Las Vegas,
Nevada. At the time of his investigation, he did not recall any Las Vegas address for
Jimenez-Carmenates; he said Jimenez-Carmenates’ Nebraska driver’s license reflected an address
in “this area” around the time of the alleged offense.
The State rested after the investigator’s testimony. The defense moved for a directed
verdict or a dismissal, but the motion was overruled.
Jimenez-Carmenates testified that in 2015, he had a wholesale store membership with his
former wife whose name was also on the account; we note the wholesale store receipts in evidence
did not display her name. He said he lived in Grand Island from 2009 to 2014, then in Las Vegas
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in 2015. He denied ever purchasing a fraudulent gift card or using someone else’s credit or debit
card information to make purchases. He denied recognizing anyone depicted in the videos in
exhibits 1, 2, or 10 or knowing anyone by the name of the three individuals who Investigator
Lindgreen identified as the other suspects. Jimenez-Carmenates said he typically shopped with his
wife or other family members when he shopped at the wholesale or department store, where he
had gone “[t]housands of times” when he lived in Grand Island. Regarding his preferred type of
register, he was “really, really ignorant” when it came to “machinery or anything like that.” His
wife “took care of all purchases.” He disputed Investigator Lindgreen’s identification of a person
in the videos as Jimenez-Carmenates, saying he did not believe it was him. He said “I don’t know.
It didn’t seem like they had the video on the face. There was a head with a face on it. No, I don’t
believe it was me. It’s not me. [I]f he identified me because of height and weight, I don’t know.”
Jimenez-Carmenates admitted he had been convicted of a felony offense in Lincoln, Nebraska, but
said he was appealing it. After Jimenez-Carmenates testified, the defense rested.
The district court found Jimenez-Carmenates guilty beyond a reasonable doubt of first
degree forgery. The district court ordered a presentence investigation and advised
Jimenez-Carmenates that he had to cooperate with the “Probation Department” to complete the
presentence investigation report (PSR) by keeping all scheduled appointments as a condition of
his bond.
On March 7, 2019, the district court sentenced Jimenez-Carmenates to 3 years’
imprisonment with credit for 58 days served, followed by 24 months’ postrelease supervision. His
sentence was to run consecutive to “the sentences” he was already serving under “the order of the
Lancaster County District Court.”
Jimenez-Carmenates appeals.
ASSIGNMENTS OF ERROR
Jimenez-Carmenates claims, restated and reordered, that the district court (1) erred by
finding him guilty of first degree forgery, (2) abused its discretion in proceeding to sentence him
without providing him the opportunity to be interviewed as part of a presentence investigation, and
(3) erred in sentencing him to serve a term of postrelease supervision.
STANDARD OF REVIEW
In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the
evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate
court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh
the evidence; such matters are for the finder of fact. The relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State
v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
Plain error may be found on appeal when an error, plainly evident from the record,
prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process. State v. Kantaras, 294 Neb. 960, 885
N.W.2d 558 (2016).
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ANALYSIS
SUFFICIENCY OF EVIDENCE
Jimenez-Carmenates challenges the sufficiency of the evidence underlying his conviction.
He was convicted of first degree forgery under Neb. Rev. Stat. § 28-602(1) (Reissue 2008), which
provides that a person is guilty of the offense if,
with intent to deceive or harm, he falsely makes, completes, endorses, alters, or utters a
written instrument which is or purports to be, or which is calculated to become or to
represent if completed:
(a) Part of an issue of money, stamps, securities, or other valuable instruments
issued by a government or governmental agency; or
(b) Part of an issue of stock, bonds, bank notes, or other instruments representing
interests in or claims against a corporate or other organization or its property.
A written instrument means any paper, document, or other instrument containing written or printed
matter used for purposes of reciting, embodying, conveying, or recording information, and any
money, credit card, token, stamp, seal, badge, trademark, or any evidence or symbol of value, right,
privilege, or identification which is capable of being used to the advantage or disadvantage of some
person. Neb. Rev. Stat. § 28-601(1) (Reissue 2008). The term “utter,” as used in § 28-602(1),
means “to issue, authenticate, transfer, sell, transmit, present, use, pass, or deliver, or to attempt or
cause such uttering.” § 28-601(9).
The evidence showed, and there is no dispute on appeal, that an individual falsely uttered
written instruments (bank account card information) belonging to Customer 1, Customer 2,
Customer 3, and Customer 4 in unauthorized transactions that took place at the wholesale and
department stores on June 6 and 9, 2015. The parties stipulated that the Bank covered the charges
associated with those transactions. The intent to deceive or harm of the individual who falsely
uttered the bank account card information can reasonably be inferred in consideration of the direct
evidence capturing those transactions on surveillance video and matching receipts, the parties’
stipulations, and testimony regarding the investigation. See State v. Tucker, 17 Neb. Ct. App. 487, 764
N.W.2d 137 (2009) (whether defendant possesses requisite state of mind is question of fact and
may be proven by circumstantial evidence). The evidence showed that the offense of
§ 28-602(1)(b) had been committed by the individual seen completing the transactions at issue in
the surveillance videos.
The only dispute on appeal is whether Jimenez-Carmenates was the individual who
committed the first degree forgery. Jimenez-Carmenates takes issue with the manner in which the
identification was made. He argues that there were “no eyewitnesses [to] the alleged crimes” and
that the investigator said that “the person he identified as [Jimenez-Carmenates] in the
[c]ourtroom” looked substantially different or had changed significantly from the person he
identified in the videos. Brief for appellant at 16. The “videos depicted a person that had what
appeared to be a bald spot on his head.” Id. Jimenez-Carmenates points to his testimony that he
had never been balding and had always had hair.
Reviewing the evidence in the light most favorable to the prosecution, we conclude there
was sufficient evidence to support the conviction. The video evidence shows and the investigator
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concluded that the clothing of the suspect on June 6, 2015, at the wholesale and department stores
were an “exact match.” The wholesale store receipts (exhibit 7) display Jimenez-Carmenates’
name, indicating the transactions were made on his membership account. Seeing that name on
those receipts reasonably led Investigator Lindgreen to search for Jimenez-Carmenates in the
police department’s local database and NCJIS to determine if Jimenez-Carmenates was the
perpetrator who was visible in surveillance video and, initially referring to two photographs
(exhibits 5 and 6, one of which was said to be from 2014 or 2015), identified Jimenez-Carmenates
as such. Jimenez-Carmenates admitted that exhibits 5 and 6 were photographs of him. He was also
identified as the suspect on video at the wholesale store on June 9, 2015. Besides the photograph
to video comparisons, the investigator identified other individuals as suspects in the overall fraud
scheme who accompanied Jimenez-Carmenates to the stores on June 6 and June 9; they were
visible in the videos at the times indicated by the investigator. Having compared the characteristics
of the suspect as seen in the videos (containing overhead and frontal vantage points) and
photographs (exhibits 5 and 6) of Jimenez-Carmenates, we find a rational trier of fact could have
concluded the suspect was Jimenez-Carmenates.
As Jimenez-Carmenates points out, during trial the investigator noted Jimenez-Carmenates
had presently lost a “substantial” amount of weight, had a hairline that apparently “receded
somewhat,” and had grown a beard (Jimenez-Carmenates also admitted exhibit 4 was a photograph
of him; he has a beard in that photograph, which was said to be from within the 2 months before
trial). Even though his appearance may have changed from the time of the offense (2015) to the
time of trial (2018), the evidence supports that he has always had short hair on his head. He appears
with short hair in exhibit 5 and even shorter hair in exhibit 6. He agreed that exhibit 6 showed that
he had (as stated by the prosecutor) “pretty short, buzzed hair.” The videos show
Jimenez-Carmenates with short hair; in certain footage positioned from above the registers, the
hair at the center of the top of his head appears to either be thinning or had been cut so short that
the skin on his head was more visible there compared to the rest of his head. Regardless, he does
not appear bald in the videos or in any of the photographs. Moreover, other aspects of
Jimenez-Carmenates’ person were visible for comparison.
After Jimenez-Carmenates was pronounced guilty of first degree forgery, the district court
stated that it believed that it was the “same person” in the wholesale and department stores. The
district court noted its finding that the photograph of exhibit 8 showed the “same person” that was
displayed in the photographs of exhibits 4, 5, and 6. Further, the district court found that the videos
of exhibits 1, 2, and 10 corresponded with the “spreadsheet synopsis” of exhibit 3, the receipts in
exhibits 7 and 9, and the “[wholesale store] membership.” In a bench trial of a criminal case, the
trial court’s findings have the effect of a verdict and will not be set aside unless clearly erroneous.
State v. Muro, 269 Neb. 703, 695 N.W.2d 425 (2005). The district court’s determination as to the
identification of Jimenez-Carmenates as the offender was not clearly erroneous, as we have
previously concluded that a rational trier of fact could reach that conclusion. Therefore,
Jimenez-Carmenates’ insufficiency of the evidence claim fails.
PRESENTENCE INTERVIEW
Jimenez-Carmenates claims that the district court abused its discretion by “sentencing him
without affording him the opportunity to be interviewed for a presentence investigation.” Brief for
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appellant at 12. During the sentencing hearing, the district court stated it had received and reviewed
the PSR. The court asked if defense counsel had any requested additions or corrections to the PSR.
Defense counsel responded “[n]o,” but noted that Jimenez-Carmenates was “not interviewed for
it, but the statement and the letter attached to the [PSR] regarding his sentences from Lancaster
County, [Nebraska],” case “CR 17-1251,” were “correct.” That information was not phrased as an
objection or an argument as to a reason why sentencing could not continue. The hearing proceeded
with argument as to an appropriate sentence for Jimenez-Carmenates. Defense counsel waived the
matter of sentencing without a current presentence interview having been done. See State v.
Pereira, 284 Neb. 982, 824 N.W.2d 706 (2013) (generally, where no objection is made at
sentencing hearing when defendant is provided opportunity to do so, any claimed error is waived
and is not preserved for appellate review).
Nonetheless, we will review Jimenez-Carmenates’ claim for plain error. An appellate court
always reserves the right to note plain error that was not complained of at trial or on appeal. State
v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016). Plain error may be found on appeal when an
error, plainly evident from the record, prejudicially affects a litigant’s substantial right and, if
uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial
process. Id.
A presentence investigation and report “shall include, when available, an analysis of the
circumstances attending the commission of the crime, the offender’s history of delinquency or
criminality, physical and mental condition, family situation and background, economic status,
education, occupation, and personal habits, and any other matters that the probation officer deems
relevant or the court directs to be included.” Neb. Rev. Stat. § 29-2261(3) (Cum. Supp. 2018). The
investigation shall also include any written statements submitted to the county attorney or
probation officer by a victim. Id.
We pause to note that Jimenez-Carmenates’ Lancaster County convictions, mentioned by
defense counsel during the sentencing hearing, were appealed to this court. See State v.
Carmenates, No. A-18-350, 2019 WL 1130376 (Neb. App. Mar. 12, 2019) (selected for posting
to court website) (December 2017 Lancaster County convictions for theft by deception and
criminal possession of four or more financial transaction devices affirmed).
The PSR for this case showed some of Jimenez-Carmenates’ personal identification
information (e.g., his age, status as a father, education history, and employment status), his
extensive criminal history (updated), circumstances of the present offense, and a description of a
statement from the Bank. Attached to the PSR were court filings, offense reports, the Bank’s letter,
a 2018 “Classification Study” from the Nebraska Department of Correctional Services, and
Jimenez-Carmenates’ prior PSR from his 2017 convictions out of Lancaster County (Lancaster
County PSR) that was completed in February 2018, and was based in part on an interview of
Jimenez-Carmenates on January 11. The Lancaster County PSR covers in great detail all the
information required to be included in a PSR pursuant to § 29-2261(3), except for any victim
statement that may have been received. The Classification Study has information about the
offenses out of Lancaster County for which Jimenez-Carmenates was incarcerated and his
education and employment history, institutional adjustment, mental health history, and personal
risk factors at the initial classification.
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Jimenez-Carmenates argues that he was not able to provide updated information for most
factors listed under § 29-2261(3), but the PSR along with its attachments contain all of the
information required by § 29-2261(3). We note that his conviction here clearly occurred out of the
same criminal scheme as his convictions at issue in the Lancaster County PSR, his Lancaster
County PSR interview was relatively close in time to his sentencing in Hall County, Nebraska, and
plenty of updated information is provided elsewhere in or attached to the present PSR.
Jimenez-Carmenates does not assert specifically what he would have said in an interview
other than he could have said “whether he felt remorse for the convictions and the effect that the
convictions have had on him and his family.” Brief for appellant at 14. As related to his 2017
convictions, the Lancaster County PSR states he “denied any knowledge of or participation in [the]
crime” and the Classification Study notes he “tends to blame his codefendants for involvement in
fraudulent financial activities.” During the sentencing hearing in the Hall County District Court,
defense counsel argued that it was unknown “if there was any remorse as it relates to the Hall
County case” and that the “series of events has been devastating to [Jimenez-Carmenates] and his
family [and devastating] on a financial basis as well.” Jimenez-Carmenates had the chance to speak
personally to the court but declined, saying “I have nothing”; if he was remorseful, he did not
express it (and does not do so on appeal). Regardless, he does not contend that anything he would
have reported about himself in an interview would have made any difference to the sentence
imposed. We find no plain error related to this assigned error.
POSTRELEASE SUPERVISION
On appeal, the parties agree that including a term of postrelease supervision in
Jimenez-Carmenates’ sentence was plain error. We agree. It appears the sentencing court may have
relied upon the sentencing ranges set forth in the PSR when determining a sentence for
Jimenez-Carmenates. Unfortunately, the PSR incorrectly indicated that the penalty for a Class III
felony in this case was up to 4 years’ imprisonment and 2 years’ postrelease supervision, a $25,000
fine, or both. The PSR also indicated that at least 9 months’ postrelease supervision was required
if imprisonment was imposed. The district court proceeded to include 24 months’ postrelease
supervision in Jimenez-Carmenates’ sentence. Neither party objected at sentencing. The problem
with the sentencing range provided in the PSR, along with the postrelease supervision provision
imposed, is that the offense underlying Jimenez-Carmenates’ conviction took place in June 2015
which preceded the August 2015 effective date for certain statutory changes to sentencing ranges
and the imposition of postrelease supervision.
A sentence that is contrary to the court’s statutory authority is an appropriate matter for
plain error review. State v. Kantaras, supra. The power to define criminal conduct and fix its
punishment is vested in the legislative branch, whereas the imposition of a sentence within these
legislative limits is a judicial function. See id. Accordingly, a sentence is illegal when it is not
authorized by the judgment of conviction or when it is greater or less than the permissible statutory
penalty for the crime. Id.
Jimenez-Carmenates was convicted of first degree forgery for criminal conduct which took
place in June 2015. First degree forgery is a Class III felony under § 28-602(2). As controlling at
the time of Jimenez-Carmenates’ offense, Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014)
mandated that a Class III felony was punishable by 1 to 20 years’ imprisonment, a $25,000 fine,
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or both. No term of postrelease supervision was statutorily authorized as part of a sentence for a
Class III felony for an offense committed in June 2015. See id.
The PSR erroneously indicated a version of § 28-105(1) which was revised by the Nebraska
Legislature in 2015. See 2015 Neb. Laws, L.B. 605. Under Neb. Rev. Stat. § 28-105(1) (Supp.
2015), a Class III felony became punishable by up to 4 years’ imprisonment and 2 years’
postrelease supervision, a $25,000 fine, or both (minimum of 9 months’ postrelease supervision
required if imprisonment imposed). However, that change to the penalty for a Class III felony did
“not apply to any offense committed prior to August 30, 2015.” § 28-105(7). Therefore, postrelease
supervision was not applicable to Jimenez-Carmenates since he committed his first degree forgery
offense in June 2015.
Inclusion of a term of postrelease supervision in Jimenez-Carmenates’ sentence was plain
error as it was contrary to the court’s statutory authority. See State v. Kantaras, supra.
Accordingly, we vacate the entirety of Jimenez-Carmenates’ sentence and remand for resentencing
on his conviction under the version of the applicable sentencing statutes in effect at the time
Jimenez-Carmenates committed his offense in June 2015.
SENTENCING CREDIT
The State also suggests the district court committed plain error when it granted
Jimenez-Carmenates credit for 58 days served. We agree. Credit for time served is not
discretionary, but instead, based on the record, an absolute and objective number. State v. Bree,
285 Neb. 520, 827 N.W.2d 497 (2013). Whether a defendant is entitled to credit for time served
and in what amount are questions of law. State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013).
Neb. Rev. Stat. § 83-1,106 (Reissue 2014) provides that “[c]redit against the maximum
term and any minimum 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.” However, “a convicted felon, incarcerated for one offense and awaiting
trial on an unrelated offense, receives no credit, pursuant to § 83-1,106(1), for time served while
awaiting trial and sentencing on the unrelated offense.” State v. McLeaney, 6 Neb. Ct. App. 807, 810,
578 N.W.2d 68, 70 (1998). See, also, State v. Baker, 250 Neb. 896, 553 N.W.2d 464 (1996)
(defendant was not in jail awaiting trial and sentencing for pending case; rather, defendant was in
jail serving sentence for separate offense, thus defendant was not entitled to credit in pending case).
The State correctly points out that the Lancaster County PSR reflects that
Jimenez-Carmenates was in custody in Nevada from July 26 to August 15, 2017 (21 days), before
being extradited to Nebraska where he remained in custody from August 16 to February 19, 2018
(188 days). Therefore, from July 26, 2017, through February 19, 2018, Jimenez-Carmenates was
in custodial detention for a total of 209 days. On February 20, 2018, Jimenez-Carmenates was
sentenced in the Lancaster County District Court to a total of 6 to 10 years’ imprisonment on his
two convictions with credit for 209 days served. Therefore, Jimenez-Carmenates was given credit
in the Lancaster County case for all time served up through February 19, 2018.
The PSR for the Hall County conviction indicated that Jimenez-Carmenates was in jail
from January 5 through January 10, 2018 (6 days). Because that time overlapped with time for
which he already received credit in the Lancaster County case, the Hall County District Court
could not again credit that time to him. See, State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015)
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(although under Neb. Rev. Stat. § 83-1,106, offender shall be given credit for time served as result
of charges that led to sentences, presentence credit is applied only once); State v. Williams, 282
Neb. 182, 802 N.W.2d 421 (2011) (offender who receives consecutive sentences is entitled to
credit against only first sentence imposed).
The State further asserts that the “remaining 52 days of credit awarded in the [present] case
were for dates following Jimenez-Carmenates’ sentencing in Lancaster County, which overlap the
time during which he was serving his 6 to 10 year prison sentence for Lancaster County.” Brief
for appellee at 17. The PSR shows that Jimenez-Carmenates was in jail during various time periods
between February 23 and December 12, 2018 (52 days total). However, the PSR also indicates that
Jimenez-Carmenates was already serving his sentences for his Lancaster County convictions
during the 52 days noted. As previously noted, a convicted felon who is incarcerated for one
offense and awaiting trial on an unrelated offense, receives no credit for time served while awaiting
trial and sentencing on the unrelated offense. See State v. McLeaney, supra. Section 83-1,106(1)
provides for credit for the time the offender is forced to be in custody as a result of the criminal
charge for which sentence is imposed; credit for presentence incarceration need not be given to an
individual incarcerated by another jurisdiction for an unrelated offense. See State v. McLeaney,
supra.
We conclude that based on the record before this court, no presentence credit for time
served is available for Jimenez-Carmenates for his Hall County sentence.
CONCLUSION
We affirm Jimenez-Carmenates’ conviction and find no plain error in his PSR being
completed without an updated presentence interview. However, we vacate his entire sentence and
remand the cause for resentencing in accordance with this opinion.
CONVICTION AFFIRMED. SENTENCE VACATED,
AND CAUSE REMANDED FOR RESENTENCING.
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