State v. Hunnel

Nebraska Advance Sheets
STATE v. HUNNEL 1039
Cite as 290 Neb. 1039
State of Nebraska, appellee, v.
Ward L. Hunnel, appellant.
___ N.W.2d ___
Filed May 29, 2015. No. S-14-620.
1. Sentences: Appeal and Error. Whether a defendant is entitled to credit for time
served and in what amount are questions of law. An appellate court reviews ques-
tions of law independently of the lower court.
2. ____: ____. An appellate court will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial court.
3. Sentences: Prior Convictions. Neb. Rev. Stat. § 83-1,106(4) (Reissue 2008)
does not concern time spent serving a sentence on a prior conviction.
4. Sentences: Words and Phrases. Jail time is the time an accused spends in deten-
tion pending trial and sentencing.
5. ____: ____. Prison time is the time spent serving on a conviction.
6. ____: ____. “[T]ime spent in custody under the former charge,” as found in
Neb. Rev. Stat. § 83-1,106(4) (Reissue 2008), refers to jail time and not to
prison time.
7. Sentences. With regard to a federal sentence still being served at the time of
sentencing on a state conviction, the second sentence does not begin to run until
the sentence which the prisoner is serving in another court has expired, unless the
court pronouncing the sentence specifically states otherwise.
8. Sentences: Evidence. The sentencing court has broad discretion as to the source
and type of evidence and information which may be used in determining the kind
and extent of the punishment to be imposed, and evidence may be presented as to
any matter that the court deems relevant to the sentence.
9. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and
(8) the violence involved in the commission of the crime.
10. ____. The appropriateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the defendant’s life.
Appeal from the District Court for Buffalo County: John P.
Icenogle, Judge. Affirmed.
Nathan T. Bruner, of Greenwall, Bruner & Frank, L.L.C., for
appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Nebraska Advance Sheets
1040 290 NEBRASKA REPORTS
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
McCormack, J.
NATURE OF CASE
Ward L. Hunnel appeals from his sentences for multiple
convictions of felon in possession of a firearm and attempted
felon in possession of a firearm. Hunnel presented no evidence
at the sentencing hearing other than a newspaper article in
which the local police chief described him as a hunting enthu-
siast who was not a threat to the community. The court refused
to enter the newspaper into evidence. Hunnel argues that
the court erred in refusing to consider the newspaper article.
Hunnel also argues that the court erred in failing to grant him
credit for 369 days previously served within the federal system
on a federal sentence. We affirm.
BACKGROUND
Hunnel pled guilty in the Buffalo County District Court
to one count of felon in possession of a firearm, a Class ID
felony, and three counts of attempted felon in possession of
a firearm, a Class II felony. In exchange, the State dismissed
26 counts of felon in possession of a firearm and changed 3
counts of felon in possession of a firearm to attempted felon in
possession of a firearm. The original information was filed on
February 15, 2013, and the amended information was filed on
April 8, 2014.
The possession charges stem from law enforcement’s discov-
ering, on January 22, 2013, 30 weapons and copious amounts
of ammunition in the home where Hunnel resided. Hunnel was
arrested by the Kearney Police Department on January 24. The
presentence investigation report (PSI) indicates that Hunnel
was released on bond on February 8, 2013.
Hunnel has a criminal history beginning in 1982. Prior
offenses include burglary as a juvenile, careless driving, hunt-
ing after hours, driving under suspension, willful reckless
driving, criminal mischief, attempted third degree assault, dis-
turbing the peace, violations of hunting and fishing regu-
lations, issuing bad checks, intimidation by telephone call,
Nebraska Advance Sheets
STATE v. HUNNEL 1041
Cite as 290 Neb. 1039
impersonating a public servant, violation of a protection order,
violating motor carrier safety regulations, and multiple proba-
tion violations. In 2006, Hunnel was convicted on a federal
charge of “Illegal Import of Wildlife” and was placed on 5
years’ probation. That probation was subsequently revoked on
August 11, 2008, and he served an 11-month sentence in the
Bureau of Prisons.
The PSI noted that Hunnel has had problems with compli-
ance when sentenced to probation. This included law viola-
tions as well as leaving the state without authorization, failing
to file monthly supervision reports, neglecting to notify his
probation officer of a change of address, and failing to pay
restitution. In addition, the PSI found Hunnel to be at “Very
High Risk” under the category of “Pro-Criminal Attitude/
Orientation.” The PSI stated that Hunnel did not take respon-
sibility for his actions leading to the possession charges in
Buffalo County and that Hunnel considered those actions to
be “victimless crime[s].” The PSI indicates that when not in
prison, Hunnel earned his living purchasing and selling animal
hides across the Midwest.
The PSI shows that on December 10, 2013, Hunnel was
sentenced to 12 months’ imprisonment, followed by 3 years’
supervised release, on a “Weapons Offense” in federal court.
This conviction arose out of acts apparently occurring on
March 30, 2013.
The PSI shows a “Federal Hold” on December 19, 2013.
A bond review hearing for the possession charges was held
in Buffalo County that same date. At the hearing, Hunnel’s
counsel indicated Hunnel had 4 months left on the federal
sentence for the “Weapons Offense.” The PSI indicates a
return to the Buffalo County Detention Center on April 2,
2014, which was approximately 4 months after the bond
review hearing.
The sentencing hearing on the firearms possession convic-
tions in Buffalo County was held on June 12, 2014. The only
evidence Hunnel’s attorney offered at the sentencing hearing
was a local newspaper article dated January 26, 2013, and
entitled “30 firearms taken from felon’s home.” In the article,
Nebraska Advance Sheets
1042 290 NEBRASKA REPORTS
the police chief “called Hunnel a hunting enthusiast and not a
threat to the community.” The police chief was quoted in the
article as saying, “‘I just don’t see him as an immediate threat
to the public.’”
The State objected to the article. The State noted that “the
Court can receive it for whatever it’s worth obviously,” but
argued that the exhibit was worth very little, because it was
unclear what the police chief meant by his statement. The dis-
trict court refused to enter the article into evidence, noting that
the statement would “essentially be hearsay” and that “if you
wanted to use [the police chief] as a character witness or refer-
ence, that could have been done directly.”
Hunnel’s attorney asked that the court sentence Hunnel to
the minimum required by law. Hunnel’s attorney described
Hunnel as being no threat to the community. Hunnel violated
the law by falling “into traps of his own passions which are
outdoor life and the pursuit of being outdoors.” Hunnel’s attor-
ney also noted that Hunnel was a cooperating federal witness
and had been a cooperative and respectful inmate in the deten-
tion center.
Hunnel’s attorney also asked that the court give Hunnel
credit for 88 days served in Buffalo County, for 3 days in Grant
County that were served as charges were dismissed as part of
the plea bargain, for 3 days served in Platte County, and for
369 days served with the federal authorities. Hunnel’s attorney
offered no evidence relating to the December 2013 federal sen-
tence or its underlying conviction. The State mentioned at the
hearing that it believed Hunnel had spent 369 days in federal
custody, although it did not elaborate or specifically respond to
Hunnel’s request for 369 days’ credit. Hunnel’s attorney stated
at the hearing that the federal “Weapons Offense” listed in the
PSI was really interstate transportation of an unlawfully killed
deer. The State made no comment concerning the details of the
federal crime.
On June 13, 2014, the court sentenced Hunnel to 7 to 15
years’ imprisonment on count I and 20 months’ to 5 years’
imprisonment on counts II through IV. Counts II through IV
were to be served concurrently to each other and consecu-
tively to count I. The court granted Hunnel credit for 86 days
Nebraska Advance Sheets
STATE v. HUNNEL 1043
Cite as 290 Neb. 1039
of time served. The court did not grant credit for 369 days in
custody under the federal conviction. On July 10, Hunnel filed
his notice of appeal from the June 13 order.
ASSIGNMENTS OF ERROR
Hunnel assigns as error that the district court imposed exces-
sive sentences and abused its discretion at the sentencing hear-
ing by failing to allow relevant evidence.
STANDARD OF REVIEW
[1] Whether a defendant is entitled to credit for time served
and in what amount are questions of law. An appellate court
reviews questions of law independently of the lower court.1
[2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.2
ANALYSIS
Hunnel argues that the court erred in refusing to grant him
credit for the 369 days he spent in federal custody. Hunnel
also asserts that the court should have allowed into evidence
the newspaper article containing favorable references to his
character by the local police chief, reasoning that this character
evidence would have mitigated his sentences. He requests that
the sentences be vacated and that “fair and just”3 lesser sen-
tences be imposed, with 369 days credit for time served.
Credit for Time Served
[3] We first address Hunnel’s argument that the district
court erred in failing to grant credit under Neb. Rev. Stat.
§ 83-1,106(4) (Reissue 2008) for 369 days spent in federal
custody. The time in federal custody that Hunnel seeks credit
for was spent serving the sentence imposed for his federal
conviction. We find no merit to Hunnel’s argument, because
§ 83-1,106(4) does not concern time spent serving a sentence
on a prior conviction.
1
State v. Carngbe, 288 Neb. 347, 847 N.W.2d 302 (2014).
2
State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011).
3
Brief for appellant at 23.
Nebraska Advance Sheets
1044 290 NEBRASKA REPORTS
Section 83-1,106(4) states:
If the offender is arrested on one charge and prosecuted
on another charge growing out of conduct which occurred
prior to his or her arrest, credit against the maximum
term and any minimum term of any sentence resulting
from such prosecution shall be given for all time spent
in custody under the former charge which has not been
credited against another sentence.
[4,5] In cases decided under § 83-1,106, we have repeat-
edly equated “custody as a result of the criminal charge”4
with “jail time.”5 We have said that jail time is the time an
accused spends in detention pending trial and sentencing.6 We
have explained that “jail time” does not include “prison time.”
Prison time is the time spent serving on a conviction.7
[6] In State v. Banes,8 we indicated that “‘time spent in
custody under the former charge’” pursuant to § 83-1,106(4)
likewise concerns only jail time. We said that § 83-1,106(4)
anticipates allocation of the period of incarceration during the
time a defendant is awaiting trial on more than one case.9 We
have never given credit under § 83-1,106(4) for time spent
4
§ 83-1,106(1) (emphasis supplied).
5
See, State v. Baker, 250 Neb. 896, 553 N.W.2d 464 (1996); State v. Groff,
247 Neb. 586, 529 N.W.2d 50 (1995); State v. Frizzell, 243 Neb. 103,
497 N.W.2d 391 (1993); State v. Jordan, 240 Neb. 919, 485 N.W.2d 198
(1992); State v. Heckman, 239 Neb. 25, 473 N.W.2d 416 (1991); State
v. Kitt, 232 Neb. 237, 440 N.W.2d 234 (1989); State v. Von Dorn, 234
Neb. 93, 449 N.W.2d 530 (1989); State v. Fisher, 218 Neb. 479, 356
N.W.2d 880 (1984); Addison v. Parratt, 208 Neb. 459, 303 N.W.2d 785
(1981); State v. Tweedy, 196 Neb. 246, 242 N.W.2d 626 (1976); State v.
McLeaney, 6 Neb. Ct. App. 807, 578 N.W.2d 68 (1998). Compare State v.
Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
6
See, State v. Baker, supra note 5; State v. Jordan, supra note 5; State v.
Heckman, supra note 5; State v. Kitt, supra note 5; State v. Vrtiska, 227
Neb. 600, 418 N.W.2d 758 (1988); State v. Fisher, supra note 5.
7
See, State v. Vrtiska, supra note 6; State v. Fisher, supra note 5.
8
State v. Banes, 268 Neb. 805, 811, 688 N.W.2d 594, 598 (2004) (emphasis
supplied).
9
Id. See, also, State v. Carngbe, supra note 1.
Nebraska Advance Sheets
STATE v. HUNNEL 1045
Cite as 290 Neb. 1039
serving a sentence under a conviction. We hold that “time spent
in custody under the former charge,” as found in § 83-1,106(4),
refers to jail time and not to prison time.
Only one subsection of § 83-1,106 pertains to credit for time
spent serving a sentence after conviction. Subsection (2) speci-
fies that credit may be given for time spent in custody “under
a prior sentence.” (Emphasis supplied.) But § 83-1,106(2)
provides that the defendant may receive such credit for prison
time only if the defendant is later “reprosecuted and resen-
tenced” for the same offense or for another offense based on
the same conduct. There is no provision under any subsection
of § 83-1,106 allowing credit for time spent serving a valid
sentence under a valid conviction.
What Hunnel really seeks is a retroactive concurrency of
valid sentences for separate crimes. The record, though woe-
fully sparse, indicates Hunnel finished serving the federal
period of incarceration before being sentenced on the Buffalo
County convictions. We are unaware of any legal principle
that would allow a court to order a sentence to run concur-
rently with a sentence on another conviction that has already
been served.
[7] With regard to a federal sentence still being served
at the time of sentencing on a state conviction, we have
said that the second sentence does not begin to run until the
sentence which the prisoner is serving in another court has
expired, unless the court pronouncing the sentence specifi-
cally states otherwise.10 Such concurrency, like concurrency
with another sentence in the same court, is left to the sentenc-
ing judge’s discretion.11
We find no merit to Hunnel’s arguments that the district
court erred in failing to credit against his current sentences
the 369 days he spent serving his federal sentence on a
prior conviction.
10
See, Nelson v. Wolff, 190 Neb. 141, 206 N.W.2d 563 (1973); State, ex rel.
Allen, v. Ryder, 119 Neb. 704, 230 N.W. 586 (1930). See, also, Annot., 90
A.L.R. 3d 408 (1979).
11
See State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014).
Nebraska Advance Sheets
1046 290 NEBRASKA REPORTS
Newspaper Article
We next address Hunnel’s arguments concerning the news-
paper article. Hunnel asserts that the district court abused
its discretion in refusing to enter the newspaper article into
evidence. Hunnel argues that because of this error, we should
vacate his sentences.
[8] The sentencing court has broad discretion as to the
source and type of evidence and information which may be
used in determining the kind and extent of the punishment
to be imposed, and evidence may be presented as to any
matter that the court deems relevant to the sentence.12 The
traditional rules of evidence may be relaxed for this purpose,
so that the sentencing authority can receive all informa-
tion pertinent to the imposition of sentence.13 Thus, reliance
upon hearsay information in a presentence investigation is
not inappropriate.14
An abuse of discretion occurs when a trial court’s decision
is based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence.15 We conclude that the district court did not abuse
its discretion.
While the rules of hearsay may not apply to sentencing
hearings, it was reasonable for the district court to consider the
foundation for the hearsay statement Hunnel sought to intro-
duce. The court opined: “[I]f you wanted to use [the police
chief] as a character witness or reference, that could have been
done directly.” There was no evidence or argument that the
police chief knew Hunnel personally. Rather, it appears from
the context that the police chief was giving his assessment of
Hunnel’s dangerousness based on the same information that
the district court had before it at sentencing. The district court
could make that judgment for itself.
[9,10] To the extent that Hunnel attempts to more generally
challenge his sentences are excessive, we find they are not.
12
State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
13
See id.
14
State v. Ritsch, 232 Neb. 407, 440 N.W.2d 689 (1989).
15
State v. Ramirez, 284 Neb. 697, 823 N.W.2d 193 (2012).
Nebraska Advance Sheets
STATE v. HUNNEL 1047
Cite as 290 Neb. 1039
An appellate court will not disturb a sentence imposed within
the statutory limits absent an abuse of discretion by the trial
court.16 When imposing a sentence, a sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense,
and (8) the violence involved in the commission of the crime.17
The appropriateness of a sentence is necessarily a subjective
judgment and includes the sentencing judge’s observation of
the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life.18
A Class ID felony is subject to a minimum sentence of
imprisonment of 3 years and a maximum sentence of 50
years.19 A Class II felony is subject to a minimum sentence of
imprisonment of 1 year and a maximum sentence of 50 years.20
The court sentenced Hunnel to 7 to 15 years’ imprisonment on
the Class ID felony and 20 months’ to 5 years’ imprisonment
on each of the Class II felonies. Counts II through IV were
to be served concurrently to each other and consecutively to
count I. The sentences imposed were well below the maxi-
mum statutory limits. Hunnel’s extensive criminal history and
noncompliance with probation justified the court’s sentenc-
ing order.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
Heavican, C.J., not participating.
16
State v. Kass, supra note 2.
17
Id.
18
Id.
19
Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014).
20
Id.