Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/24/2020 08:05 AM CST




                                                         - 441 -
                               Nebraska Supreme Court Advance Sheets
                                        304 Nebraska Reports
                                                    STATE v. HARMS
                                                   Cite as 304 Neb. 441




                                        State of Nebraska, appellee, v.
                                        Randy R. Harms, Jr., appellant.
                                                     ___ N.W.2d ___

                                         Filed November 8, 2019.   No. S-18-1181.

                 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 questions 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: Statutes. The calculation and application of credit for time
                    served is controlled by statute. Different statutes govern depending on
                    whether the defendant is sentenced to jail or prison.
                 4. Sentences. Neb. Rev. Stat. § 47-503 (Reissue 2010) is intended to
                    ensure that defendants receive all the credit against their jail sentence to
                    which they are entitled—no less, and no more.
                 5. Sentences: Prisoners: Time. When sentence is pronounced upon one
                    already serving a sentence from another court, the second sentence does
                    not begin to run until the sentence which the prisoner is serving has
                    expired, unless the court pronouncing the second sentence specifically
                    states otherwise. Thus, the applicable rule is that unless the court impos-
                    ing a later independent sentence specifically states otherwise at the time
                    of its pronouncement, the later sentence is to be served consecutively to
                    any earlier imposed sentence or sentences.
                 6. Sentences: Appeal and Error. An appellate court will not disturb a sen-
                    tence imposed within the statutory limits absent an abuse of discretion
                    by the trial court.
                 7. Judgments: Words and Phrases. An abuse of discretion occurs when a
                    trial court’s decision is based upon reasons that are untenable or unrea-
                    sonable or if its action is clearly against justice or conscience, reason,
                    and evidence.
                 8. Sentences: Appeal and Error. Where a sentence imposed within the
                    statutory limits is alleged on appeal to be excessive, the appellate court
                                    - 442 -
            Nebraska Supreme Court Advance Sheets
                     304 Nebraska Reports
                               STATE v. HARMS
                              Cite as 304 Neb. 441

    must determine whether a sentencing court abused its discretion in con-
    sidering and applying the relevant factors as well as any applicable legal
    principles in determining the sentence to be imposed.
 9. Sentences. In determining a sentence to be imposed, relevant factors
    customarily considered and applied are the defendant’s (1) age, (2) men-
    tality, (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
    amount of violence involved in the commission of the crime.
10. ____. The appropriateness of a sentence is necessarily a subjective judg-
    ment 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 Seward County: James C.
Stecker, Judge. Affirmed.

  Nicole J. Tegtmeier, Seward County Public Defender, for
appellant.

   Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.

  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.

   Stacy, J.
   Randy R. Harms, Jr., was convicted of attempted possession
of burglar’s tools, a Class I misdemeanor,1 and was sentenced
to 1 year in jail with credit for 23 days served. Harms appeals,
arguing his sentence was excessive and claiming he was enti-
tled to additional jail credit. Finding no error, we affirm.

                        FACTS
          2015 Convictions in Dawson County
  In 2015, Harms was convicted of multiple felony and mis-
demeanor charges in Dawson County, Nebraska, and was

1
    See Neb. Rev. Stat. §§ 28-201 and 28-508 (Reissue 2016).
                                  - 443 -
            Nebraska Supreme Court Advance Sheets
                     304 Nebraska Reports
                             STATE v. HARMS
                            Cite as 304 Neb. 441

sentenced to a total of 40 to 120 months in the custody of the
Nebraska Department of Correctional Services (DCS). Harms
was released on parole in March 2018.
             2018 Conviction in Seward County
   Approximately 2 months later, on May 28, 2018, Harms was
arrested in Seward County, Nebraska, and charged with one
count of possession of burglar’s tools, a Class IV felony.2 He
was lodged in the Seward County jail, and his bond was set at
“$10,000—10%.”
   A few weeks later, Harms sent a jail “kite” form to the
district court asking to “put in for a PR Bond.” Harms stated
that his parole had been revoked and that he wanted to return
to DCS custody, where he felt his access to medications and
medical treatment would be better than in the Seward County
jail. After a hearing on June 20, 2018, Harms was allowed to
swear to a personal recognizance bond and was released from
the Seward County jail directly into DCS custody.
   Harms ultimately pled no contest to attempted possession
of burglar’s tools, a Class I misdemeanor.3 On November
19, 2018, he was sentenced to 1 year in the Seward County
jail and was ordered to pay $2,000 in restitution upon his
release. Harms was given credit for 23 days served. Harms
asked the court to give him additional credit against his jail
sentence for the 150 days he spent in DCS custody after he
was released on bond from the Seward County jail. The court
denied his request.
   Harms filed this timely appeal, which we moved to our
docket on our own motion.
                ASSIGNMENTS OF ERROR
  Harms assigns, restated, that the district court erred by (1)
awarding him insufficient credit for time served against his jail
sentence and (2) imposing an excessive jail sentence.

2
    § 28-508.
3
    See §§ 28-201 and 28-508.
                                      - 444 -
               Nebraska Supreme Court Advance Sheets
                        304 Nebraska Reports
                                 STATE v. HARMS
                                Cite as 304 Neb. 441

                  STANDARD OF REVIEW
   [1] Whether a defendant is entitled to credit for time served
and in what amount are questions of law.4 An appellate court
reviews questions of law independently of the lower court.5
   [2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.6
                              ANALYSIS
                      Credit for Time Served
    Harms contends the district court erred in granting him only
23 days of credit against his 1-year jail sentence. He argues he
should have been given credit for 173 days—a figure he arrives
at by adding together the 23 days he spent in the Seward
County jail and the 150 days he spent in the custody of DCS
before being sentenced in the instant case.
    [3] In Nebraska, the calculation and application of credit for
time served is controlled by statute.7 Different statutes govern
depending on whether the defendant is sentenced to jail or
­prison.8 Neb. Rev. Stat. § 47-503 (Reissue 2010) governs the
 credit to be given against a city or county jail sentence and
 provides in relevant part:
          (1) Credit against a jail term shall be given to any per-
       son sentenced to a city or county jail for time spent in jail
       as a result of the criminal charge for which the jail term is
       imposed or as a result of conduct upon which such charge
       is based. Such credit shall include, but not be limited to,
       time spent in jail:
          (a) Prior to trial;
          (b) During trial;

4
    State v.   Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019).
5
    State v.   Hunnel, 290 Neb. 1039, 863 N.W.2d 442 (2015).
6
    State v.   Steele, 300 Neb. 617, 915 N.W.2d 560 (2018).
7
    State v.   Bree, 285 Neb. 520, 827 N.W.2d 497 (2013).
8
    See id.
                              - 445 -
         Nebraska Supreme Court Advance Sheets
                  304 Nebraska Reports
                         STATE v. HARMS
                        Cite as 304 Neb. 441

         (c) Pending sentence;
         (d) Pending resolution of an appeal; and
         (e) Prior to delivery of such person to the county board
      of corrections or, in counties which do not have a county
      board of corrections, the county sheriff.
   A different statute, Neb. Rev. Stat. § 83-1,106 (Reissue
2014), governs the credit to be given against a prison sentence
ordered to be served in the custody of DCS. The statutes are
similar in many respects, but because Harms was sentenced to
a term of imprisonment in the county jail, and not DCS, the
credit to which Harms is entitled is governed by § 47-503, not
§ 83-1,106.
   Section 47-503(1) authorizes credit for “time spent in jail
as a result of the criminal charge for which the jail term is
imposed or as a result of conduct upon which such charge is
based.” Here, the record confirms Harms spent a total of 23
days in jail on the criminal charge of possession of burglar’s
tools. The sentencing court gave Harms credit for those 23
days, but Harms contends he was entitled to more.
   He asserts that after bonding out of jail on the Seward
County charge, he returned immediately to DCS custody on the
parole violation. He argues his parole on the Dawson County
sentences was revoked “as a result of” the conduct upon which
the Seward County charges were based, and he contends he is
thus entitled to receive credit against his 1-year jail sentence
for the time he spent in DCS custody. We disagree.
   After Harms bonded out of jail on the Seward County charge
of possession of burglar’s tools, he was no longer “in jail as a
result of the criminal charge for which the jail term [was]
imposed or as a result of conduct upon which such charge
[was] based.” He was, instead, in DCS custody completing fel-
ony sentences on different convictions out of Dawson County.
It may be true that his parole on the Dawson County sentences
was revoked because his criminal conduct in Seward County
also amounted to a violation of his parole, but Harms was in
DCS custody on the Dawson County sentences, and he was
                                     - 446 -
              Nebraska Supreme Court Advance Sheets
                       304 Nebraska Reports
                                STATE v. HARMS
                               Cite as 304 Neb. 441

receiving credit against those sentences. Section 47-503 does
not authorize presentence credit against a jail sentence for time
spent in DCS custody serving a separate sentence.9
   [4] 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.10 By giving Harms credit
for the 23 days he spent in jail as a pretrial detainee on the
Seward County charge, the sentencing court gave Harms all the
jail credit to which he was entitled under § 47-503.
   Further, we note that if Harms were given credit against
both his DCS sentence and his jail sentence for the 150 days
he spent in DCS custody, the result would be that some of
his jail sentence on the Seward County conviction would be
served concurrently with his prison sentences on the Dawson
County convictions. But the sentencing court did not order
the jail sentence to be served concurrently with any portion
of the prison sentences Harms was already serving out of
Dawson County.
   [5] “‘When sentence is pronounced upon one already serv-
ing a sentence from another court, the second sentence does
not begin to run until the sentence which the prisoner is serving
has expired, unless the court pronouncing the second sentence
specifically states otherwise.’”11 Thus, the applicable rule is
that unless the court imposing a later independent sentence
specifically states otherwise at the time of its pronouncement,
the later sentence is to be served consecutively to any earlier
imposed sentence or sentences.12 For the sake of completeness,

 9
     Accord State v. Leahy, 301 Neb. 228, 234-35, 917 N.W.2d 895, 900 (2018)
     (recognizing that “if a defendant is serving a sentence on a conviction for
     one offense while awaiting trial and sentencing on an unrelated offense,
     he or she is not entitled to credit for time served on the sentence for the
     unrelated offense”).
10
     State v. Clark, 278 Neb. 557, 772 N.W.2d 559 (2009).
11
     State v. McNerny, 239 Neb. 887, 889, 479 N.W.2d 454, 456 (1992),
     quoting Harpster v. Benson, 216 Neb. 776, 345 N.W.2d 335 (1984).
12
     McNerny, supra note 11.
                                   - 447 -
             Nebraska Supreme Court Advance Sheets
                      304 Nebraska Reports
                              STATE v. HARMS
                             Cite as 304 Neb. 441

we point out the rule is otherwise where multiple sentences
are imposed at the same time. In such event, unless the court
specifically states otherwise at the time the sentences are pro-
nounced, they run concurrently with each other.13
   Here, the district court sentenced Harms while he was still
serving the prison sentences on his Dawson County convic-
tions. Because the district court did not specifically state
that Harms’ jail sentence was to be served concurrently with
his earlier prison sentences, it must be served consecutively.
Harms may not use the jail credit statutes to accomplish indi-
rectly what the district court did not order specifically.
                    Sentence Not Excessive
   Attempted possession of burglar’s tools is a Class I
misdemeanor,14 punishable by a maximum of 1 year’s impris-
onment, a $1,000 fine, or both.15 Harms’ 1-year jail sentence
was thus within the statutory limits.
   [6,7] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.16 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence.17
   Harms argues the district court abused its discretion,
because “a thorough examination of the record regarding the
circumstances and background of [his] life fails to establish
a basis” for imposing the maximum allowable sentence.18 We
disagree.

13
     State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014); McNerny, supra
     note 11.
14
     §§ 28-201 and 28-508.
15
     Neb. Rev. Stat. § 28-106 (Reissue 2016).
16
     Steele, supra note 6.
17
     State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011).
18
     Brief for appellant at 15.
                              - 448 -
         Nebraska Supreme Court Advance Sheets
                  304 Nebraska Reports
                         STATE v. HARMS
                        Cite as 304 Neb. 441

   When sentencing Harms, the court referenced his extensive
criminal history, the circumstances of his crime, and his high
risk to reoffend:
      I have reviewed the presentence investigation report.
      You’re 41 years of age. You have a GED. At the current
      time, you have no employment due to your incarceration,
      other than the employment within the facility.
         You have an extensive prior record, including four
      DUIs, four assaults, two possession of controlled sub-
      stances, four driving under revocation or driving under
      suspension, two criminal mischief, one terroristic threat,
      one violation of a protection order, theft. You’ve been to
      prison three times and to jail at least ten times.
         Your LS/CMI indicates a high risk to re-offend. The
      nature of this offense involved you being present where
      wire was stolen from a pivot, and there’s over $35,000 in
      damage that was caused.
         The Court does not understand how you can claim to
      have no responsibility for what occurred when you’re out
      there at the point where these thefts were taking place.
      Why would you be out there with burglar’s tools if you
      weren’t participating?
         The Court does not find that you’re a fit candidate for
      probation. A lesser sentence would depreciate the seri-
      ousness of your crime or promote disrespect for the law.
      There is a substantial risk that during a period of proba-
      tion you would engage in additional criminal conduct.
         For the conviction of attempted possession of burglar’s
      tools, a Class I misdemeanor, you’re sentenced to one
      year in the Seward County Jail.
   [8-10] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether a sentencing court abused its discretion in
considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
                                    - 449 -
             Nebraska Supreme Court Advance Sheets
                      304 Nebraska Reports
                               STATE v. HARMS
                              Cite as 304 Neb. 441

imposed.19 In determining a sentence to be imposed, relevant
factors customarily considered and applied are 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 amount of violence
involved in the commission of the crime.20 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.21
   Here, the record demonstrates the court considered all of the
relevant sentencing factors and clearly articulated its rationale
for imposing the 1-year jail sentence. We find no abuse of dis-
cretion in the sentence imposed.

                         CONCLUSION
   For the foregoing reasons, the judgment and sentence of the
district court is affirmed.
                                                  Affirmed.
   Freudenberg, J., not participating.

19
     State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
20
     Id.
21
     Id.
