State v. Knight , 311 Neb. 485 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/01/2022 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. KNIGHT
Cite as 311 Neb. 485State of Nebraska, appellee, v.
Joshua J. Knight, appellant.
___ N.W.2d ___
Filed April 28, 2022. No. S-21-544.
1. Sentences: Appeal and Error. A sentence imposed within the statutory
limits will not be disturbed on appeal in the absence of an abuse of dis-
cretion by the trial court.
2. Judges: Appeal and Error. When judicial discretion is exercised con-
trary to law or to the commonly recognized legal principles, it indicates
an abuse of discretion.
3. Statutes: Judgments: Appeal and Error. The meaning of a statute is a
question of law, on which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
4. Criminal Law: Legislature: Courts: Sentences. 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.
5. Sentences. A sentence is illegal when it is not authorized by the judg-
ment of conviction or when it is greater or lesser than the permissible
statutory penalty for the crime.
6. 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.
7. Statutes. It is not within the province of the courts to read meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
8. Words and Phrases. As a general rule, the use of the word “shall” is
considered to indicate a mandatory directive, inconsistent with the idea
of discretion.
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STATE v. KNIGHT
Cite as 311 Neb. 4859. Sentences: Probation and Parole. Neb. Rev. Stat. § 29-2204.02(7)(a)
(Reissue 2016) requires a sentencing court to advise an offender of
the time to be served based on an assumption that no good time will
be lost.
10. Statutes: Words and Phrases. The word “include,” as used in a statute,
connotes that the provided list of components is not exhaustive and that
there are other items includable that are not specifically enumerated.
11. Sentences: Probation and Parole: Time. Unless another statute pro-
vides otherwise, where an offender is originally sentenced to post-
release supervision and is later resentenced to confinement in a county
jail following revocation of post-release supervision, the offender is
entitled to good time reduction of his or her county jail sentence pursu-
ant to Neb. Rev. Stat. § 47-502 (Reissue 2021).
12. Sentences: Appeal and Error. An appellate court has the power on
direct appeal to remand a cause for the imposition of a lawful sentence
where an erroneous one has been pronounced.
Appeal from the District Court for Buffalo County: Ryan
C. Carson, Judge. Affirmed in part, and in part vacated and
remanded with directions.
D. Brandon Brinegar, Deputy Buffalo County Public
Defender, for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
Joshua J. Knight appeals from a resentencing order that
revoked his post-release supervision and incarcerated him in
the county jail for 9 months, with credit for previous time
served, but that expressly denied credit for future “good time.”
He argues that this denial violated Neb. Rev. Stat. § 47-502(Reissue 2021) (county jail good time). On appeal, the State
agreed, and so do we. Therefore, we vacate that portion of
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. KNIGHT
Cite as 311 Neb. 485his sentence and remand the cause with directions. Otherwise,
we affirm.
II. BACKGROUND
Knight was originally convicted of assault by a confined
person, a Class IIIA felony, and initially sentenced to a 1-year
term of imprisonment followed by 18 months of post-release
supervision. Knight completed his prison term and was then
released on his post-release supervision.
Ten months into Knight’s post-release supervision, the State
filed a motion to revoke it. It alleged that Knight violated par-
ticular conditions of his post-release supervision.
At a hearing, Knight voluntarily and knowingly admitted
to the State’s allegations. The district court accepted Knight’s
admissions and found that he violated those conditions of
his post-release supervision. The court ordered that Knight
be resentenced.
Following a sentencing hearing, the court issued a written
sentencing order, revoking Knight’s post-release supervision
and sentencing him to a term of incarceration of 9 months in
the “Buffalo County Jail.” The court gave Knight a 27-day
credit for time already served, but found that “[he did] not
qualify for good time credit.”
On the record at the sentencing hearing, the court explained
its reasoning. The court stated: “So with the credit that I’ve
given you and because it’s post-release supervision, you don’t
qualify for good time credit, you will serve 243 days in jail,
which just so happens to take you about to the end of your
post-release supervision . . . .”
Knight filed a timely appeal to the Nebraska Court of
Appeals. We moved his appeal to our docket. 1 Later, in response
to our order to show cause, Knight established, and the State
did not dispute, that his county jail sentence was interrupted
by another sentence by a different court and remained partially
unserved pending completion of the other sentence.
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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STATE v. KNIGHT
Cite as 311 Neb. 485III. ASSIGNMENT OF ERROR
Knight assigns that the district court erred in ordering that
he did not qualify for good time credit while serving his
jail sentence.
IV. STANDARD OF REVIEW
[1,2] A sentence imposed within the statutory limits will not
be disturbed on appeal in the absence of an abuse of discretion
by the trial court. 2 When judicial discretion is exercised con-
trary to law or to the commonly recognized legal principles, it
indicates an abuse of discretion. 3
[3] The meaning of a statute is a question of law, on
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 4
V. ANALYSIS
Knight’s sole argument is that the court abused its discretion
in finding that he did not qualify for good time, because doing
so violated § 47-502. The statute requires:
Any person sentenced to or confined in a city or county
jail, including any person serving a custodial sanction
imposed in response to a parole or probation violation,
shall, after the fifteenth day of his or her confinement,
have his or her remaining term reduced one day for each
day of his or her sentence or sanction during which he or
she has not committed any breach of discipline or other
violation of jail regulations. 5
Knight asserts that § 47-502 applies to him, because the
court ordered that he serve his sentence in the county jail,
and that therefore, he must qualify for good time credit.
Knight does not dispute that his sentence to 9 months of jail
2
State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
3
Dolen v. State, 148 Neb. 317, 27 N.W.2d 264 (1947).
4
State v. Brown, 300 Neb. 57, 912 N.W.2d 241 (2018).
5
§ 47-502 (emphasis supplied).
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STATE v. KNIGHT
Cite as 311 Neb. 485confinement, after revocation of his post-release supervision,
was within the statutory limits; rather, he asserts only that the
feature of the sentencing order denying good time was contrary
to law.
The State agrees with Knight’s argument. In its brief, the
State asserted that “[its] research did not reveal any statutory
or case law authority for a sentencing court to order a defend­
ant is not entitled to earn good time credit on his sentence
when the sentence is being imposed upon the revocation of
post-release supervision.” 6
[4,5] The power to define criminal conduct and fix its pun-
ishment is vested in the legislative branch, whereas the imposi-
tion of a sentence within these legislative limits is a judicial
function. 7 Accordingly, a sentence is illegal when it is not
authorized by the judgment of conviction or when it is greater
or lesser than the permissible statutory penalty for the crime. 8
Because Knight does not attack any other aspect of his resen-
tencing, we address only whether the denial of county jail good
time was contrary to law and thus an abuse of discretion.
While Knight relies solely upon § 47-502, we recognize that
another statute could conceivably authorize the court’s action.
Before addressing § 47-502, we first examine the statutes cre-
ating the offense for which he was originally sentenced and
governing imposition of post-release supervision. We next con-
sider those addressing revocation of post-release supervision.
We then turn to § 47-502. After reviewing the statutes, we will
consider our case law.
[6,7] In examining these statutes, we apply settled principles
of statutory interpretation. 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
6
Brief for appellee at 3.
7
State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).
8
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Nebraska Supreme Court Advance Sheets
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STATE v. KNIGHT
Cite as 311 Neb. 485words which are plain, direct, and unambiguous. 9 Similarly, it
is not within the province of the courts to read meaning into a
statute that is not there or to read anything direct and plain out
of a statute. 10
1. Statutes
(a) Statutes Governing Original Sentence
The statute creating the underlying offense—assault by a
confined person—does not contain any language purporting
to authorize a court to deny county jail good time. 11 It does
mandate that certain sentences be served consecutively and
imposes a limitation on credit for time spent in custody prior
to sentencing. 12 But its language does not expressly authorize
denial of county jail good time.
[8,9] Another statute, 13 which governs imposition of sen-
tences for Class IIIA felonies, except in circumstances not
applicable here, 14 does not authorize denial of county jail good
time. To the contrary, the only language of this statute bearing
on good time suggests otherwise. In pertinent part, it states:
(7)(a) When imposing a determinate sentence upon an
offender under this section, the court shall:
....
(iii) When imposing a sentence following revocation of
post-release supervision, advise the offender on the record
the time the offender will serve on his or her term of
imprisonment, including credit for time served, assuming
that no good time for which the offender will be eligible
is lost. 15
9
State v. Taylor, 310 Neb. 376, 966 N.W.2d 510 (2021).
10
Id.11
See Neb. Rev. Stat. § 28-932 (Reissue 2016).
12
See § 28-932(2).
13
Neb. Rev. Stat. § 29-2204.02 (Reissue 2016).
14
See § 29-2204.02(4).
15
§ 29-2204.02(7)(a) (emphasis supplied).
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STATE v. KNIGHT
Cite as 311 Neb. 485Notably, this statute uses the word “shall.” As a general rule,
the use of the word “shall” is considered to indicate a manda-
tory directive, inconsistent with the idea of discretion. 16 Thus,
this statute requires a sentencing court to advise an offender of
the time to be served based on an assumption that no good time
will be lost. It does not suggest that the court may deny good
time to the offender.
(b) Revocation Statute
The Nebraska Probation Administration Act (the act) 17 gov-
erns Knight’s violation of his post-release supervision. While
Knight was originally sentenced to post-release supervision
rather than probation, the act defines probation to include post-
release supervision. 18 It also defines probationer as a person
sentenced to probation or post-release supervision. 19
[10] The statute primarily governing revocation of post-
release supervision under the act does not authorize a court
to deny good time. 20 It does empower a court to revoke
post-release supervision and “impose on the offender a term
of imprisonment up to the original period of post-release
supervision.” 21 Where a sentence of incarceration is imposed,
this statute requires the court to “grant jail credit for any days
spent in custody as a result of the post-release supervision,
including custodial sanctions.” 22 The word “include,” as used
in a statute, connotes that the provided list of components
is not exhaustive and that there are other items includable that
are not specifically enumerated. 23
16
State v. Madren, 308 Neb. 443, 954 N.W.2d 881 (2021).
17
Neb. Rev. Stat. §§ 29-2246 to 29-2269 (Reissue 2016, Cum. Supp. 2020 &
Supp. 2021).
18
See § 29-2246(4).
19
See § 29-2246(5).
20
See, generally, § 29-2268.
21
§ 29-2268(2).
22
Id.
23
State v. Hofmann, 310 Neb. 609, 967 N.W.2d 435 (2021).
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STATE v. KNIGHT
Cite as 311 Neb. 485By reference to a general punishment statute, 24 the post-
release supervision revocation statute mandates that a sentence
of less than 1 year—such as the 9-month sentence here—be
served in the county jail. 25 Likewise, the general punishment
statute does not contain any language suggesting that a sen-
tencing court may deny good time. 26
(c) § 47-502
Section 47-502 prescribes the good time credit that a per-
son must qualify to receive while sentenced to or confined
in a county jail. As we have found regarding previous ver-
sions of § 47-502, 27 the current version is plain, direct, and
unambiguous.
The statute mandates that “[a]ny person sentenced to or
confined in a . . . county jail, including any person serving a
custodial sanction imposed in response to a parole or probation
violation, shall” qualify for good time. 28 Here again, the word
“including” connotes that the provided list of components is
not exhaustive and that there are other items includable that are
not specifically enumerated. 29
[11] We hold that unless another statute provides otherwise,
where an offender is originally sentenced to post-release super-
vision and is later resentenced to confinement in a county jail
following revocation of post-release supervision, the offender
is entitled to good time reduction of his or her county jail sen-
tence pursuant to § 47-502. Neither party has identified any
statutory basis for a blanket denial of good time in a sentence
to county jail confinement following a revocation of post-
release supervision.
24
See Neb. Rev. Stat. § 28-105(2) (Cum. Supp. 2020).
25
See § 29-2268(2).
26
See § 28-105.
27
See State v. Atkins, 250 Neb. 315, 549 N.W.2d 159 (1996).
28
See § 47-502 (emphasis supplied).
29
See State v. Hofmann, supra note 23.
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STATE v. KNIGHT
Cite as 311 Neb. 4852. Case Law
Our case law provides no support for the contested feature
of the sentencing court’s order. We have discussed the require-
ment of good time credit for time already spent in jail. 30 In the
context of sentences to probation, we have rejected the notion
that the county jail good time required by § 47-502 may be
denied. 31 Over 30 years ago, we held that § 47-502 applied
to time spent in the county jail awaiting sentencing. 32 Our
decision there recited the early history of § 47-502, which,
we explained, showed that the Nebraska Legislature was con-
cerned about persons in county institutions serving longer sen-
tences for lesser offenses than persons in state prison serving
time for more serious offenses. 33
At oral argument, Knight speculated that the trial judge may
have relied on an opinion’s fleeting reference to good time
during post-release supervision. 34 That reference, however, said
nothing regarding county jail confinement after revocation of
post-release supervision.
3. Resolution and Disposition
We hold that the court lacked statutory authority to order
that Knight could not qualify for good time credit. Because
the court ordered Knight to serve his sentence in the “Buffalo
County Jail,” § 47-502 applied. The statute unambiguously
required that Knight “shall” qualify for good time credit. No
other statute authorized the court to deny Knight credit for
good time. Therefore, that portion of the court’s sentence was
contrary to law and constituted an abuse of discretion. 35
30
See State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013).
31
See, State v. Lobato, 259 Neb. 579, 611 N.W.2d 101 (2000); State v.
Salyers, 239 Neb. 1002, 480 N.W.2d 173 (1992).
32
Williams v. Hjorth, 230 Neb. 97, 430 N.W.2d 52 (1988).
33
See id.34
See State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017), modified on
denial of rehearing 296 Neb. 606, 894 N.W.2d 349.
35
See Dolen v. State, supra note 3.
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STATE v. KNIGHT
Cite as 311 Neb. 485[12] On appeal, the parties request somewhat different relief,
but the difference is largely theoretical. Knight requests that
we “remand with appropriate directions to vacate that portion
[denying good time credit] of the trial court’s [s]entencing
[o]rder.” 36 The State asks that we “strike the portion of the
district court’s order which states [Knight] does not qualify for
good time credit and affirm the judgment of the district court
as modified.” 37 We have said that an appellate court has the
power on direct appeal to remand a cause for the imposition
of a lawful sentence where an erroneous one has been pro-
nounced. 38 Here, of course, only the denial of good time credit
was erroneous.
In a similar situation involving denial of good time, we
vacated that portion of the sentencing order, remanded the
cause with directions consistent with our opinion, and in all
other respects, affirmed the sentence. 39 We follow the same
course here.
VI. CONCLUSION
The portion of Knight’s sentence denying good time credit
under § 47-502 is vacated and the cause is remanded with
directions consistent with this opinion. In all other respects, the
sentence is affirmed.
Affirmed in part, and in part vacated
and remanded with directions.
36
Brief for appellant at 9.
37
Brief for appellee at 3-4.
38
State v. Kantaras, supra note 7.
39
See State v. Lobato, supra note 31.