State v. Wal , 302 Neb. 308 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/22/2019 09:06 AM CDT
- 308 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. WAL
Cite as 302 Neb. 308State of Nebraska, appellee, v.
A ngok B. Wal, appellant.
___ N.W.2d ___
Filed February 22, 2019. No. S-18-446.
1. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
2. ____: ____. Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpretation to
ascertain the meaning of statutory words which are plain, direct, and
unambiguous.
3. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
4. Sentences: Probation and Parole. Under the plain language of Neb.
Rev. Stat. § 29-2268(2) (Reissue 2016), a trial court has only one option
upon revoking a term of post-release supervision for noncompliance:
imposing a term of incarceration up to the remaining period of post-
release supervision.
5. ____: ____. When a court has revoked post-release supervision, the
maximum term of imprisonment that can be imposed is governed exclu-
sively by Neb. Rev. Stat. § 29-2268(2) (Reissue 2016) and does not
depend on the maximum sentence of initial imprisonment authorized
under Neb. Rev. Stat. § 28-105 (Reissue 2016).
6. Sentences: Probation and Parole: Appeal and Error. Upon revocation
of post-release supervision, a sentencing court has discretion under Neb.
Rev. Stat. § 29-2268(2) (Reissue 2016) to impose any term of impris-
onment up to the remaining period of post-release supervision, and an
appellate court will not disturb the court’s decision absent an abuse
of discretion.
- 309 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. WAL
Cite as 302 Neb. 308Appeal from the District Court for Sarpy County: Stefanie
A. M artinez, Judge. Affirmed.
Jeffrey S. Leuschen and Liam K. Meehan, of Schirber &
Wagner, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Angok B. Wal pled guilty to a Class IV felony and was
sentenced to 20 months’ imprisonment followed by 12 months’
post-release supervision. Shortly after the period of post-
release supervision began, the State moved to revoke, alleging
Wal had violated several conditions. Wal admitted the viola-
tions, after which the district court revoked the post-release
supervision and imposed a term of 8 months’ imprisonment in
the county jail.
Wal appeals. He argues that because he has completed
a 20-month prison sentence, the district court’s imposition
of an 8-month jail term upon revoking post-release supervi-
sion resulted in imprisonment for a total of 28 months for a
Class IV felony, and therefore exceeded the maximum sentence
of 24 months’ imprisonment authorized by law.1 Wal’s position
fundamentally misconstrues the applicable statutory scheme,
and we reject it as meritless. Finding no abuse of discretion in
the imposition of an 8-month jail term, we affirm.
BACKGROUND
In June 2016, Wal was charged with one count of criminal
mischief, one count of obstructing a peace officer, and one
1
See Neb. Rev. Stat. § 28-105 (Reissue 2016).
- 310 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. WAL
Cite as 302 Neb. 308count of obstructing government operations. In November, he
entered a guilty plea to an amended information charging only
criminal mischief (a Class IV felony) and obstruction of gov-
ernment operations (a Class I misdemeanor). The maximum
sentence for a Class IV felony is 24 months’ imprisonment and
12 months’ post-release supervision.2 The maximum sentence
for a Class I misdemeanor is 12 months’ imprisonment and a
fine of $1,000.3
Wal was sentenced to 20 months’ imprisonment and 12
months’ post-release supervision on the felony conviction and
to a concurrent term of 12 months’ imprisonment on the
misdemeanor. The order of post-release supervision included
conditions requiring Wal to report regularly as directed by his
probation officer, provide proof of employment, abstain from
the use of alcohol, obtain a chemical dependency or mental
health examination, submit to regular drug and alcohol testing,
and perform 60 hours of community service.
On July 3, 2017, Wal was released from prison and began
his period of post-release supervision. Almost immediately, he
failed to comply with the conditions of that supervision. On
October 5, the State filed a motion seeking to revoke his post-
release supervision. When Wal failed to appear in court on the
motion, a warrant was issued for his arrest.
On April 2, 2018, Wal was arrested on the warrant.
Thereafter, he was arraigned on the motion to revoke and
admitted violating the conditions of his post-release super-
vision. The State’s factual basis indicated that after being
released from prison, Wal failed to report for mandatory pro-
bation appointments, failed to recharge the global positioning
system monitor on his ankle, did not attend required appoint-
ments or drug and alcohol testing, did not obtain a chemical
dependency evaluation, did not attend drug treatment, did not
2
Id.3
Neb. Rev. Stat. § 28-106 (Reissue 2016).
- 311 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. WAL
Cite as 302 Neb. 308complete any community service hours, and did not pay his
probation enrollment fees.
The court found that Wal’s period of post-release supervi-
sion began on July 3, 2017, and the parties eventually stipu-
lated that Wal absconded from that supervision after just 14
days. The court accepted Wal’s admission, found he had vio-
lated the conditions of his post-release supervision, and set the
matter for further disposition.
At the dispositional hearing on April 25, 2018, the court
revoked Wal’s post-release supervision and imposed a term
of 8 months’ imprisonment in the county jail. Wal filed this
timely appeal, and we moved the case to our docket on our
own motion.
ASSIGNMENT OF ERROR
Wal assigns, restated, that after revoking his post-release
supervision, it was error for the trial court to impose 8 months’
imprisonment because doing so resulted in a total term of
imprisonment that exceeded the statutory maximum for
Class IV felonies.
STANDARD OF REVIEW
[1] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.4
ANALYSIS
Wal does not challenge either the finding that he violated his
post-release supervision or the court’s decision to revoke his
post-release supervision and impose a term of imprisonment.
He challenges only the length of that imprisonment, arguing
that when it is added to the prison sentence he already served,
he will serve a total of 28 months’ imprisonment for a Class IV
felony, when the maximum term of imprisonment authorized
by § 28-105 is 24 months.
4
State v. Ralios, 301 Neb. 1027, 921 N.W.2d 362 (2019).
- 312 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. WAL
Cite as 302 Neb. 308[2,3] In considering Wal’s arguments, we are guided by
familiar rules of statutory construction. Statutory language is
to be given its plain and ordinary meaning, and an appellate
court will not resort to interpretation to ascertain the meaning
of statutory words which are plain, direct, and unambiguous.5
Components of a series or collection of statutes pertaining
to a certain subject matter are in pari materia and should be
conjunctively considered and construed to determine the intent
of the Legislature, so that different provisions are consistent,
harmonious, and sensible.6
Post-release supervision remains a relatively new concept in
Nebraska sentencing law.7 As defined by the Legislature:
Post-release supervision means the portion of a split sen-
tence following a period of incarceration under which
a person found guilty of a crime upon verdict or plea
is released by a court subject to conditions imposed by
the court and subject to supervision by the [Office of
Probation Administration].8
Revocation of post-release supervision is governed by Neb.
Rev. Stat. § 29-2268(2) (Reissue 2016), which provides:
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.
[4] Under the plain language of § 29-2268(2), a trial court
has only one option upon revoking a term of post-release
5
State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).
6
Id.7
State v. Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018).
8
Neb. Rev. Stat. § 29-2246(13) (Reissue 2016); Kennedy, supra note 7.
- 313 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. WAL
Cite as 302 Neb. 308supervision for noncompliance: imposing a term of incarcera-
tion up to the remaining period of post-release supervision.9
Without this option, a defendant would be able to frustrate the
goals of post-release supervision—and avoid serving the sec-
ond portion of his or her split sentence—simply by refusing to
comply with the terms of supervision.
Here, Wal completed the first portion of his split sentence
by serving 20 months’ imprisonment. But he failed to comply
with the second portion of his split sentence, his post-release
supervision, and the court revoked it. Wal contends that when
a court revokes post-release supervision and imposes a term of
imprisonment, it is constrained not only by the time remain-
ing on post-release supervision, but, also, by the maximum
term of imprisonment authorized by § 28-105 for the first
portion of the split sentence. We reject this contention as
inconsistent with the statutory scheme and the plain language
of § 29-2268(2).
[5] We hold that when a court has revoked post-release
supervision, the maximum term of imprisonment that can be
imposed is governed exclusively by § 29-2268(2) and does
not depend on the maximum sentence of initial imprison-
ment authorized under § 28-105. Upon revoking Wal’s post-
release supervision, the district court was statutorily autho-
rized to impose a term of imprisonment up to the remaining
period of his post-release supervision, without regard to the
amount of imprisonment ordered on the first portion of his
split sentence.
[6] Because a sentencing court has discretion under
§ 29-2268(2) to impose, upon revocation, any term of impris-
onment up to the remaining period of post-release supervi-
sion, an appellate court will not disturb that decision absent
an abuse of discretion. At the dispositional hearing in this
case, the parties did not dispute the period of time remaining
on Wal’s post-release supervision. Wal had been sentenced
9
See Kennedy, supra note 7.
- 314 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. WAL
Cite as 302 Neb. 308to 12 months’ post-release supervision, and the parties stipu-
lated he had served only 14 days of that supervision before
absconding. Thus, on the day revocation was ordered, Wal had
considerably more than 8 months remaining on his term of
post-release supervision. The district court’s order imposing
a term of 8 months’ imprisonment was within the maximum
term authorized by § 29-2268(2) and was not an abuse of dis-
cretion. The order of the district court is affirmed.
A ffirmed.