State v. McCulley

305 Neb. 139

939 N.W.2d 373

STATE of Nebraska, appellee,

v.Jennifer A. MCCULLEY, appellant.

No. S-19-313.

Supreme Court of Nebraska.

Filed February 28, 2020

D. Brandon Brinegar, Deputy Buffalo County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

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

Freudenberg, J.

NATURE OF CASE

Jennifer A. McCulley appeals her plea-based convictions and sentences. The plea agreement involved a promise by McCulley to pay restitution related to several financial crimes in exchange for the State’s reducing some of the charges and dismissing other charges against her. After the pleas were entered, but before sentencing, McCulley absconded from Nebraska to Oregon for nearly 8 years. She was eventually arrested, extradited back to Nebraska, and sentenced. McCulley appeals her sentences as excessive, claiming that the court erred in its calculation of credit for time served and in failing to consider her inability to pay the restitution and costs ordered as part of her sentences.

BACKGROUND

In November 2010, David McConnell engaged an agency in Grand Island, Nebraska, to provide in-home care for his wife. Shortly thereafter, McCulley began employment, through that agency, in the McConnell home. McConnell explicitly instructed McCulley that she was not to handle any money or financial transactions on behalf of McConnell’s wife. In December, McConnell’s bank contacted him about the possibility that one of his checks had been forged. He looked into the matter and discovered that a number of his checks had been used by McCulley to make unauthorized purchases. A law enforcement investigation located store surveillance videos showing McCulley as the individual passing the forged checks. The investigation further identified multiple instances of McCulley’s fraudulent misuse of the McConnells’ credit cards.

McCulley was originally charged with seven counts related to the unauthorized use of McConnell’s financial accounts and the misuse of the McConnells’ credit cards. These charges included three felony counts and four misdemeanors. McCulley and the State reached a plea agreement whereby four counts were dismissed and the felony counts were reduced to misdemeanors in exchange for pleas that included restitution to the businesses defrauded by the transactions, as well as restitution to the McConnells. The plea agreement specified the amount of each victim’s damages.

After entering her pleas, McCulley was released on bond until her sentencing hearing. During this period of time, McCulley absconded to Oregon.

In late 2018, McCulley was arrested in Oregon and extradited to Nebraska. She then appeared for a contempt hearing, was found in contempt of court for fleeing the jurisdiction, and was sentenced to 30 days in jail. McCulley indicated to the court that she went to Oregon to take care of her children and was not trying to flee criminal punishment. The court ordered McCulley to cooperate with updating the presentence investigation report (PSI), which was to include an update of the calculation of time served.

A sentencing hearing was held in February 2019. At the hearing, defense counsel was given an option to provide the court with any changes or amendments to the updated PSI and declined to do so. Defense counsel informed the court that McCulley went to Oregon to take care of her children, one of whom requires full-time medical care. Defense counsel recounted the plea agreement and repeatedly mentioned that McCulley had agreed to pay restitution as a part of that agreement. Defense counsel affirmed McCulley’s willingness to pay restitution.

Defense counsel asked for credit for time served of 20 days. When the court asked for clarification based on the time served in the contempt charges, however, defense counsel requested 27½ days.

After recounting the plea agreement and McCulley’s willingness to pay restitution, defense counsel then raised the court’s statutory duty pursuant to Neb. Rev. Stat. § 29-2281 (Reissue 2008) to consider factors related to McCulley’s ability to pay restitution. While raising the statutory inquiry, defense counsel reiterated that McCulley is willing to pay restitution. At no point did counsel directly suggest that McCulley would be unable to pay restitution. Defense counsel explained that McCulley had the assistance of family to pay restitution if ordered. The court inquired about how much time McCulley would need for restitution, and defense counsel indicated that it could be paid by McCulley’s mother on her behalf within 90 days of McCulley’s release.

The court made several comments on the record in consideration of the sentencing factors. The court also asked McCulley if she had income during the prior 8 years. McCulley responded that she did not work during that time; her only source of income was her son’s Social Security payments. However, her PSI recounts that McCulley intended to seek part-time employment when she returns to Oregon.

The court sentenced McCulley to three concurrent 1-year periods of incarceration and ordered the payment of restitution pursuant to the parties’ plea agreement. McCulley was further ordered to pay the court costs and extradition expenses incurred by the State. Finally, the court found that McCulley was to receive credit for 27 days served spent in custody during the pendency of this matter.

ASSIGNMENTS OF ERROR

On appeal, McCulley asserts that the trial court erred in (1) imposing excessive sentences, (2) failing to give her credit for all of her time previously served, and (3) ordering her to pay restitution and costs without ascertaining ability to pay pursuant to § 29-2281.

STANDARD OF REVIEW

Sentences within statutory limits will be disturbed by an appellate court only if the sentence complained of was an abuse of judicial discretion.¹

An abuse of discretion takes place when the sentencing court’s reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.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

The rule that a sentence will not be disturbed on appeal absent an abuse of discretion is applied to the restitution portion of a criminal sentence, and the standard of review for restitution is the same as it is for other parts of the sentence.⁴

ANALYSIS

At oral arguments, McCulley conceded that her assignment of error alleging excessive sentences in relation to the period of incarceration ordered is moot because she has completed serving the sentences.⁵ We agree and do not address it further. With regard to her remaining assignments of error, we find that the record supports the credit for time served as calculated at the sentencing hearing and that there is sufficient evidence in the record to support the order for restitution and costs.

TIME SERVED

We first address McCulley’s assignment of error concerning credit for time served. McCulley asserts that the court incorrectly calculated the time served and requests that the credit for additional time served be applied to the court costs. Neb. Rev. Stat. § 83-1,106 (Reissue 2014) creates the requirement for the court to determine and apply credit for time served. The credit for time served to which a defendant is entitled is an absolute and objective number that is established by the record.⁶

When calculating the time served, the sentencing court identified the days accounted for in the evidence and the PSI. The court referenced the updated PSI and gave defense counsel the opportunity to present any additional evidence related to time served. Defense counsel recounted the arrests on record in the PSI and did not present any evidence of additional time served. Based on our review of the record before us, the calculation for time served was correct.

RESTITUTION

The remaining assignment of error asserts that the trial court abused its discretion by ordering restitution where the record allegedly did not support McCulley’s ability to pay. We find that the record is sufficient to demonstrate that the court conducted the inquiry mandated by Neb. Rev. Stat. § 29-2280 (Reissue 2016), and McCulley has failed to demonstrate that the court otherwise abused its discretion in ordering restitution. While an ability to pay is not a necessary prerequisite under § 29-2280 to an order of restitution, the record supports McCulley’s ability to pay. We find no merit to McCulley’s contention that the district court improperly balanced McCulley’s earning ability, employment status, financial resources, and family or other legal obligations against her obligations to the victims of her crimes, especially when McCulley agreed to pay restitution in the amount ordered as a means of obtaining the benefit of a plea agreement.

Restitution ordered by a court pursuant to § 29-2280 is a criminal penalty imposed as a punishment for a crime and is part of the criminal sentence imposed by the sentencing court.⁷ On appeal, we do not endeavor to reform the trial court’s order. Rather, we review the record made in the trial court for compliance with the statutory factors that control restitution orders.⁸ The rule that a sentence will not be disturbed on appeal absent an abuse of discretion is applied to the restitution portion of a criminal sentence just as it is to any other part of the sentence.⁹

Neb. Rev. Stat. § 29-2280 et seq. (Reissue 2008) vests trial courts with the authority to order restitution for actual damages sustained by the victim of a crime for which the defendant is convicted.¹⁰ Section 29-2281 elaborates that before restitution can be properly ordered, the trial court must consider (1) whether restitution should be ordered, (2) the amount of actual damages sustained by the victim of a crime, and (3) the amount of restitution a criminal ...