State v. Galvan , 305 Neb. 513 ( 2020 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. GALVAN
Cite as 305 Neb. 513
State of Nebraska, appellee, v.
Braden M. Galvan, appellant.
___ N.W.2d ___
Filed April 10, 2020. Nos. S-19-623, S-19-624.
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: Probation and Parole: Appeal and Error. 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. ____: ____: ____. 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. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
5. Statutes: 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.
6. Sentences: Probation and Parole: Time. When determining the amount
of time remaining on a term of post-release supervision, the court may
include any period in which the probationer absconded.
7. Appeal and Error. An appellate court may, at its option, notice plain
error.
8. Appeal and Error: Words and Phrases. Plain error exists where there
is an error, plainly evident from the record but not complained of at
trial, which prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscarriage of
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STATE v. GALVAN
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justice or result in damage to the integrity, reputation, and fairness of the
judicial process.
9. Sentences: Appeal and Error. A sentence that is contrary to the court’s
statutory authority is an appropriate matter for plain error review.
10. Sentences. A sentence is illegal when it is not authorized by the judg-
ment of conviction or when it is greater or less than the permissible
statutory penalty for the crime.
11. ____. Generally, it is within a trial court’s discretion to direct that
sentences imposed for separate crimes be served either concurrently
or consecutively. This is so even when offenses carry a mandatory
minimum sentence, unless the statute requires that consecutive sentences
be imposed.
12. Criminal Law: Probation and Parole. The violation of probation is not
itself a crime, but merely a mechanism which may trigger the revocation
of a previously granted probation.
13. ____: ____. A motion to revoke probation is not a criminal proceeding.
14. Probation and Parole. A probation revocation hearing is considered
a continuation of the original prosecution for which probation was
imposed—in which the purpose is to determine whether a defendant has
breached a condition of his or her existing probation, not to convict that
individual of a new offense.
15. Sentences. Presentence credit is to be applied only once when the
defend­ant has multiple charges or multiple cases pending simultaneously.
16. Sentences: Records. When a court grants a defendant more or less
credit for time served than the defendant actually served, that portion
of the pronouncement of sentence is erroneous and may be corrected
to reflect the accurate amount of credit as verified objectively by
the record.
Appeals from the District Court for Hall County: Mark J.
Young, Judge. Sentences affirmed in part as modified, and in
part vacated.
Gerard A. Piccolo, Hall County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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STATE v. GALVAN
Cite as 305 Neb. 513
Funke, J.
In this appeal, Braden M. Galvan argues that the district
court for Hall County exceeded its authority under Neb. Rev.
Stat. § 29-2268(2) (Reissue 2016) by imposing consecutive
5-month terms of imprisonment following Galvan’s revocation
from post-release supervision in two cases. Upon review of the
record, we find that Galvan’s second 5-month term of impris-
onment must be vacated. In addition, we find that Galvan is
entitled to jail time credit. Thus, regarding Galvan’s sentences,
we affirm in part as modified, and in part vacate.
BACKGROUND
In October 2017, Galvan entered a plea of no contest to
operating a motor vehicle to avoid arrest, a Class IV felony,
and driving during suspension, first offense, a Class III mis-
demeanor. In December, the district court for Hall County
sentenced Galvan to 2 years’ imprisonment and 12 months’
post-release supervision on the operating a motor vehicle to
avoid arrest conviction and to 90 days’ imprisonment on the
driving during suspension conviction. The court ordered the
sentences to be served concurrently and awarded 76 days’
credit for time served.
In January 2018, in a new case in Hall County, Galvan pled
no contest to assault by a confined person, a Class IIIA felony.
The court sentenced Galvan to 180 days’ imprisonment and 12
months’ post-release supervision, to be served consecutively to
the sentences in the prior case.
Although his sentences were ordered to be served con-
secutively, Galvan began serving the post-release supervision
portion of his sentences in both cases on October 10, 2018.
The State moved to revoke Galvan’s post-release supervi-
sion in both cases on December 6, alleging that Galvan had
failed to report to his probation officer, abstain from the use
of controlled substances, and follow an individualized treat-
ment plan.
The court held a hearing on the motions to revoke on
April 16, 2019. Pursuant to an agreement with the State,
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STATE v. GALVAN
Cite as 305 Neb. 513
Galvan admitted to the violations in both cases, and the court
revoked his post-release supervision in both cases. The court
revoked Galvan’s bond and remanded him into custody pend-
ing sentencing.
At the sentencing hearing, on June 19, 2019, Galvan’s coun-
sel stated that the maximum sentence available to the court
upon revocation from post-release supervision would be a term
of imprisonment lasting until October 10, plus 70 days due
to the time that Galvan had absconded from supervision. The
court imposed a sentence of 5 months’ imprisonment in each
case and ordered the sentences to run consecutively. The court
awarded no credit for the time that Galvan spent in custody
between the date his post-release supervision was revoked and
the date of sentencing. Galvan appealed.
ASSIGNMENTS OF ERROR
Galvan assigns that the district court erred in (1) imposing
consecutive sentences and (2) failing to award credit for time
served after revocation, prior to sentencing.
STANDARD OF REVIEW
[1-3] Statutory interpretation presents a question of law,
which an appellate court reviews independently of the lower
court. 1 An appellate court will not disturb a decision to impose
imprisonment up to the remaining period of post-release super-
vision after revocation absent an abuse of discretion by the trial
court. 2 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
ANALYSIS
Galvan contends that the court exceeded its authority under
§ 29-2268(2) in sentencing him to two consecutive terms of 5
1
State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019).
2
Id.
3
Id.
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STATE v. GALVAN
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months’ imprisonment upon his revocation from post-release
supervision. He further contends that the court should have
awarded him credit for the time he spent in custody awaiting
sentencing after his revocation.
[4,5] In considering Galvan’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. 4
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. 5
Post-release supervision is a form of probation. 6 Post-release
supervision is defined by statute as “the portion of a split sen-
tence 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].” 7 Once a court
revokes a probationer’s post-release supervision, it must then
determine the appropriate term of imprisonment 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
4
State v. Wal, 302 Neb. 308, 923 N.W.2d 367 (2019).
5
Id.
6
See, Neb. Rev. Stat. § 29-2246(4) (Reissue 2016); Phillips, supra note 1.
7
§ 29-2246(13).
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Services or in county jail subject to subsection (2) of sec-
tion 28-105. 8
[6] We held in State v. Phillips 9 that in order to calculate
a probationer’s “remaining period of post-release supervi-
sion,” the court must subtract the number of days actually
served from the number of days ordered to be served. 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). 10 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. 11 “Except as may be otherwise more specifi-
cally 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.” 12 When determin-
ing the amount of time remaining on a term of post-release
supervision, the court may include any period in which the
probationer absconded. 13
Plain Error
[7-10] Before we address Galvan’s argument regard-
ing the “remaining period of post-release supervision” under
§ 29-2268(2), we must first address the district court’s plain
error in revoking Galvan’s second term of post-release super-
vision and in imposing a 5-month term of imprisonment for
that term. An appellate court may, at its option, notice plain
8
But see 2019 Neb. Laws, L.B. 686, § 8 (amending “remaining” to
“original” in § 29-2268(2), operative September 1, 2019).
9
Phillips, supra note 1.
10
Id.
11
Id.
12
Neb. Rev. Stat. § 25-2221 (Reissue 2016).
13
Phillips, supra note 1.
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error. 14 Plain error exists where there is an error, plainly evi-
dent from the record but not complained of at trial, which prej-
udicially affects a substantial right of a litigant and is of such
a nature that to leave it uncorrected would cause a miscarriage
of justice or result in damage to the integrity, reputation, and
fairness of the judicial process. 15 A sentence that is contrary to
the court’s statutory authority is an appropriate matter for plain
error review. 16 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. 17
Galvan was convicted of two separate felonies, and as
part of his sentence in each case, he was ordered to serve
a 12-month term of post-release supervision. Even though
Galvan’s sentences were ordered to be served consecutively,
after he completed the initial incarceration portion of his
sentences, he began serving both terms of post-release super-
vision on the same date. Upon the State’s motions to revoke
each term, the court sustained the motions and revoked both
terms and imposed imprisonment for both terms. The court’s
revocation and imposition of imprisonment in Galvan’s sec-
ond felony case constitutes plain error, because the court was
required by law to require that Galvan serve his sentences
consecutively.
[11] Generally, it is within a trial court’s discretion to
direct that sentences imposed for separate crimes be served
either concurrently or consecutively. 18 Such discretion applies
equally to terms of imprisonment and terms of post-release
supervision 19 and presumably includes discretion to make one
form consecutive and the other concurrent. This is so even
14
Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).
15
Id.
16
State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).
17
Id.
18
State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).
19
See id. See, also, State v. Peters, 231 Neb. 242, 435 N.W.2d 675 (1989).
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when offenses carry a mandatory minimum sentence, unless
the statute requires that consecutive sentences be imposed. 20
Here, Galvan was convicted of assault by a confined person,
in violation of Neb. Rev. Stat. § 28-932(1) (Reissue 2016).
With regard to sentencing, § 28-932(2) provides: “Sentences
imposed under subsection (1) of this section shall be con-
secutive to any sentence or sentences imposed for violations
committed prior to the violation of subsection (1) of this
section . . . .” The use of the word “shall” in § 28-932(2)
mandates consecutive sentencing. 21 In this matter, 1 month
prior to his sentence in the assault by a confined person
case, Galvan was sentenced on one count of operating a
motor vehicle to avoid arrest. Under the plain language of
§ 28-932(2), the district court was required by law to order
the assault by a confined person sentence to run consecutive
to the prior sentence.
In January 2018, the court ordered that Galvan serve his
sentences consecutively. Because Galvan’s sentences were to
be served consecutively, and a term of post-release supervi-
sion was imposed as a part of each sentence, Galvan was
required to serve the terms of post-release supervision con-
secutively. Although post-release supervision remains a rela-
tively new concept in Nebraska sentencing law, we have
previously recognized that terms of post-release supervision
may be served consecutively. For example, as relevant here, in
State v. Vanness, 22 this court approved consecutive sentences
of 12 months’ imprisonment and 9 months of post-release
supervision and 10 months’ imprisonment and 9 months of
post-release supervision. We described the later 9-month term
of post-release supervision as “a period of 9 months of succes-
sive and additional post[-]release supervision.” 23
20
Vanness, supra note 18.
21
See State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995).
22
Vanness, supra note 18.
23
Id. at 170, 912 N.W.2d at 746.
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STATE v. GALVAN
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When a consecutive sentence is imposed, the second sen-
tence begins only upon the termination of the prior term of
imprisonment. 24 A prisoner who receives multiple consecutive
sentences does not serve all sentences simultaneously, but
serves only one sentence at a time. 25 As referenced above,
§ 29-2268(2) provides: “If the court finds that a probationer
serving a term of post-release supervision did violate a condi-
tion of his or her post-release supervision, it may revoke the
post-release supervision and impose on the offender a term
of imprisonment . . . .” (Emphasis supplied.) According to
the plain and ordinary meaning of § 29-2268(2), a court’s
authority to revoke a probationer and impose a term of
imprisonment extends only to the single term of post-release
supervision that the probationer is serving, provided that the
probationer has not otherwise been ordered to serve multiple
terms concurrently.
Our understanding that Galvan had not yet begun serv-
ing his second term of post-release supervision is further
confirmed by Neb. Rev. Stat. § 29-2204.02(7)(d) (Reissue
2016), which states that “[i]f the offender has been sen-
tenced to two or more determinate sentences and one or
more terms of post-release supervision, the offender shall
serve all determinate sentences before being released on post-
release supervision.” In this case, Galvan received determi-
nate sentences of 2 years’ imprisonment for operating a motor
vehicle to avoid arrest and 180 days’ imprisonment for assault
by a confined person. Even though the split sentences were
ordered to run consecutively, Galvan complied with the
requirements of § 29-2204.02(7)(d) by completing the incar-
ceration portion of his sentences before being released on
post-release supervision. To hold otherwise would grant pris-
oners sentenced to consecutive determinate sentences freedom
24
U.S. v. Randall, 472 F.3d 763 (10th Cir. 2006), citing Price v. State, 28
Kan. App. 2d 854, 21 P.3d 1021 (2001).
25
Id.
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STATE v. GALVAN
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from confinement during intervening periods of post-release
supervision. 26 However, once the court revoked Galvan’s post-
release supervision in his first case and sentenced him to a
5-month term of imprisonment, he received another determi-
nate sentence, and because the terms were ordered to run con-
secutively, the court erred by not requiring him to complete
serving the 5-month term of imprisonment in his first case
before releasing him on post-release supervision in his second
case. Under § 29-2204.02(7)(d), Galvan should not have been
permitted to commence serving his second term of post-release
supervision. Because Galvan was not serving his second term
of post-release supervision, the court was not yet authorized
to act upon that second term under § 29-2268(2). Galvan was
required by law under § 28-932(2) to serve the terms of post-
release supervision consecutively. The court’s revocation of
Galvan’s second term of post-release supervision and imposi-
tion of imprisonment for that term, prior to Galvan’s comple-
tion of his first term, is plain error. This affected a substantial
right of Galvan, and to leave this error uncorrected would
amount to a miscarriage of justice. We therefore vacate the
court’s revocation and imposition of imprisonment in Galvan’s
assault by a confined person case.
Because the court had no discretion regarding the consecu-
tive nature of Galvan’s sentences, we need not address the issue
of whether a court may in its discretion order terms of impris-
onment imposed upon revocation to be served consecutively.
No Abuse of Discretion
Under § 29-2268(2)
We next address Galvan’s argument that the court exceeded
its statutory authority under § 29-2268(2), to the extent that it
remains at issue. For purposes of calculating the “remaining
period of post-release supervision” under § 29-2268(2), we
consider only the time Galvan served on his first term of post-
release supervision.
26
See State v. Malone, 928 S.W.2d 41 (Tenn. Crim. App. 1995).
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STATE v. GALVAN
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Regarding Galvan’s operating a motor vehicle to avoid arrest
conviction, a Class IV felony, he received the maximum sen-
tence of 2 years’ imprisonment and 12 months’ post-release
supervision. While there is limited information in our record
regarding Galvan’s completion of the incarceration portion of
his split sentence, it is undisputed that he began serving post-
release supervision on October 10, 2018, and was originally
scheduled to complete serving this term on October 10, 2019.
The court revoked Galvan’s post-release supervision on April
16, 2019. At that point, Galvan had served 188 days of the orig-
inal term of 12 months, or 365 days, with 177 days remaining
to be served. In addition, the parties agree that the district court
correctly extended Galvan’s “remaining period of post-release
supervision” by 70 days due to his period of abscondment.
Therefore, at the time the court revoked Galvan’s post-release
supervision, he had 247 days remaining to be served. As of
Galvan’s sentencing on June 19, 2019, the court was authorized
under § 29-2268(2) to impose a term of imprisonment up to
February 21, 2020, or a term of 8 months 2 days. The court
imposed a 5-month term of imprisonment in Galvan’s operating
a motor vehicle to avoid arrest case.
Galvan acknowledges that based on the calculation above,
the court had the authority to impose a single 5-month term
of imprisonment under § 29-2268(2). Because the maximum
term of imprisonment under § 29-2268(2) applies to a single
conviction, and because the court had the authority to impose a
5-month term of imprisonment for Galvan’s operating a motor
vehicle to avoid arrest conviction, Galvan’s argument is with-
out merit.
Credit for Time Served
Here, Galvan contends the trial court was required to credit
him for the 64 days he spent in custody awaiting sentencing
after he had been revoked from post-release supervision. As a
matter of statute and case law, we agree with Galvan.
Neb. Rev. Stat. § 47-503(1) (Reissue 2010) provides credit
for “time spent in jail as a result of the criminal charge for
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which the jail term is imposed.” Galvan’s revocation from post-
release supervision did not result in new criminal ­charges. 27
The 64 days Galvan spent in confinement after he was revoked
from post-release supervision was a result of the original crimi-
nal charges.
[12-14] The violation of probation is not itself a crime, but
merely a mechanism which may trigger the revocation of a
previously granted probation. 28 A motion to revoke probation
is not a criminal proceeding. 29 A probation revocation hear-
ing is considered a continuation of the original prosecution
for which probation was imposed—in which the purpose is to
determine whether a defendant has breached a condition of his
or her existing probation, not to convict that individual of a
new offense. 30 Accordingly, jail time after revocation of post-
release supervision, a form of probation, constitutes continuing
punishment for the crime for which post-release supervision
was originally imposed.
Postrevocation penalties are attributable to the original con-
viction. 31 The post-release supervision portion of Galvan’s
sentence included the contingency that he could be imprisoned
if the post-release supervision was revoked. Galvan triggered
that contingency when he violated the terms of post-release
supervision and it was revoked, but he did not commit a
new crime or receive a sentence on a new crime. The length
of time Galvan spent in jail after revocation relates back to
the sentence originally imposed for the criminal conviction. 32
27
See State v. Corkum, 224 N.C. App. 129, 735 S.E.2d 420 (2012).
28
State v. Caniglia, 272 Neb. 662, 724 N.W.2d 316 (2006); State v. Wragge,
246 Neb. 864, 524 N.W.2d 54 (1994); State v. Painter, 223 Neb. 808, 394
N.W.2d 292 (1986).
29
In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (2010).
30
Id.
31
Johnson v. United States, 529 U.S. 694, 120 S. Ct. 1795, 146 L. Ed. 2d
727 (2000).
32
See Medina v. State, 418 P.3d 861 (Alaska App. 2018).
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Therefore, § 47-503(1) applies to the time Galvan spent in jail
after revocation.
[15] Section 47-503 is intended to ensure that defendants
receive all the credit against their jail sentence to which they
are entitled—no less, and no more. 33 Presentence credit is
to be applied only once when the defendant has multiple
charges or multiple cases pending simultaneously. 34 Here,
Galvan’s days of confinement have not been credited to any
other sentence. That fact distinguishes this case from the
jail time credit issue addressed in Phillips. 35 In that case,
the defendant did not spend any time in jail after revocation
and before sentencing under § 29-2268(2). Rather, the court
revoked the probationer’s post-release supervision and sen-
tenced him on the same day. The defendant requested credit
for time spent in custody prior to revocation, but on appeal,
we concluded that his confinement time was an aspect of
the administration of his sentence of post-release supervi-
sion, and not as a result of the original charge. 36 As such,
the defendant’s confinement time was credited against his
remaining term of post-release supervision. This is unlike
the present case, in which Galvan’s confinement time has
not been credited against his remaining term of post-release
sentence or any other sentence. Failing to award Galvan jail
time credit would be double punishment. 37
It is worth noting that since our opinion in Phillips, the
Legislature amended § 29-2268(2), operative September 1,
2019, after Galvan’s June 2019 sentencing, to state that “[i]f a
sentence of incarceration is imposed upon revocation of post-
release supervision, the court shall grant jail credit for any days
33
State v. Harms, 304 Neb. 441, 934 N.W.2d 850 (2019).
34
See, State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013); State v.
Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).
35
Phillips, supra note 1.
36
Id.
37
See State v. Rawls, 219 N.J. 185, 97 A.3d 1142 (2014).
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spent in custody as a result of the post-release supervision,
including custodial sanctions.”
[16] We determine that Galvan is entitled to 64 days of jail
time credit. When a court grants a defendant more or less credit
for time served than the defendant actually served, that portion
of the pronouncement of sentence is erroneous and may be
corrected to reflect the accurate amount of credit as verified
objectively by the record. 38 In addition to vacating a portion of
the court’s sentencing order, as discussed above, we modify
the order to reflect the correct number of days of credit for
time served.
CONCLUSION
We vacate the 5-month term of imprisonment imposed upon
revocation in Galvan’s assault by a confined person case.
Galvan will not commence serving the post-release supervision
term in his assault by a confined person case until he has com-
pleted serving his post-release supervision term in his operat-
ing a motor vehicle to avoid arrest case. We affirm the 5-month
term of imprisonment imposed in Galvan’s operating a motor
vehicle to avoid arrest case, as modified by crediting Galvan
with 64 days of time served.
Sentences affirmed in part as modified,
and in part vacated.
38
State v. Clark, 278 Neb. 557, 772 N.W.2d 559 (2009).