- 686 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

State of Nebraska, appellee, v. 

Caleb A. Phillips, appellant.

___ N.W.2d ___

Filed March 29, 2019. No. S-18-590.

1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the 

lower court.

2. Sentences: Appeal and Error. 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. Statutes: Intent: Appeal and Error. When interpreting a statute, effect 

must be given, if possible, to all the several parts of a statute; no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided. An appellate court must look to the statute’s 

purpose and give to the statute a reasonable construction which best 

achieves that purpose, rather than a construction which would defeat it.

4. Statutes: Time: Words and Phrases. Unless the context shows otherwise, the word “month” used in a Nebraska statute means “calendar 

month.” A calendar month is a period terminating with the day of the 

succeeding month, numerically corresponding to the day of its beginning, less one.

5. Sentences: Probation and Parole: Appeal and Error. Because a court 

has discretion under Neb. Rev. Stat. § 29-2268(2) (Reissue 2016) to 

impose, upon revocation, any term of imprisonment up to the remaining 

period of post-release supervision, an appellate court will not disturb 

that decision absent an abuse of discretion.

6. Judgments: Appeal and Error. An abuse of discretion occurs when a 

court’s reasons or rulings are clearly untenable and unfairly deprive the 

litigant of a substantial right and a just result.

Appeal from the District Court for Lancaster County: John

A. Colborn, Judge. Affirmed.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/14/2019 09:08 AM CDT
- 687 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

Joe Nigro, Lancaster County Public Defender, and Jennifer 

M. Houlden for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

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

Papik, JJ.

Funke, J.

Caleb A. Phillips appeals from his 365 days of imprisonment imposed as a result of his revocation from post-release 

supervision. Phillips absconded from post-release supervision 

and failed to appear at the hearing on the State’s motion for 

revocation. He was subsequently arrested and spent 98 days in 

jail prior to revocation.

This appeal raises the novel issue of how a court should, for 

purposes of imposing a term of imprisonment upon revocation, 

calculate a probationer’s “remaining period of post-release 

supervision” under Neb. Rev. Stat. § 29-2268(2) (Reissue 

2016). We discuss in this opinion, as a matter of first impression, how the time a probationer has absconded and how the 

time a probationer has spent in jail prior to revocation factor 

into that calculation. We affirm.

BACKGROUND

In May 2016, the State filed an information against Phillips 

in the district court for Lancaster County which alleged one 

count of unlawful discharge of a firearm, a Class ID felony. 

Phillips pled no contest to one count of terroristic threats, a 

Class IIIA felony. On February 8, 2017, the court imposed 

a sentence of 3 years’ imprisonment and 18 months of postrelease supervision and credited Phillips for 339 days served. 

Phillips was originally scheduled to participate in post-release 

supervision from September 4, 2017, through March 4, 2019.

On October 23, 2017, Phillips’ probation officer filed a 

report alleging that Phillips had violated the conditions of his 

post-release supervision. The report alleged that Phillips had 
- 688 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

completed only his first scheduled drug test, which he failed; 

missed the other seven drug tests that were scheduled; and 

absconded on September 28. The Lancaster County Attorney’s 

office filed a motion to revoke post-release supervision and 

sent Phillips a letter advising him to appear and be arraigned 

at the revocation hearing scheduled for December 6. Phillips 

failed to appear, and a warrant was issued for his arrest. 

Phillips was arrested on February 5, 2018.

On April 16, 2018, the court held the rescheduled hearing on 

the State’s motion to revoke post-release supervision. Phillips 

entered a plea of no contest, which the court accepted. The 

court found Phillips guilty of the allegations set forth within 

the motion for revocation, ordered an updated presentence 

report, and scheduled a sentencing hearing for May 14.

At the May 14, 2018, hearing, the district court revoked 

Phillips’ post-release supervision and considered the imposition 

of additional imprisonment. Phillips argued that the maximum 

imprisonment he could receive would be 295 days. This figure 

represented the period of time from the date of revocation, 

May 14, 2018, to the date Phillips was originally scheduled to 

complete post-release supervision, March 4, 2019. In addition, 

Phillips argued that he was entitled to 98 days’ credit for the 

time he spent in jail from his arrest, on February 5, to the date 

of revocation, May 14.

The court disagreed on both points. The court started with 

the figure of 295 days provided by Phillips and added 127 

days, which represented the period of time that Phillips had 

absconded, from September 28, 2017, to the date of Phillips’ 

arrest, February 5, 2018. As a result, the court found that the 

maximum term of imprisonment that Phillips could receive 

upon revocation of post-release supervision was 422 days. The 

court further determined that Phillips was not entitled to credit 

for the time he spent in jail prior to revocation. As a result, 

the court ordered Phillips to serve a term of imprisonment of 

365 days in the county jail with 0 days’ credit for time served. 

Phillips appealed.
- 689 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

ASSIGNMENTS OF ERROR

Phillips assigns, restated, that the district court erred in (1) 

extending Phillips’ remaining term of post-release supervision 

upon revocation, (2) failing to give Phillips credit for time 

served, and (3) imposing an excessive sentence.

STANDARD OF REVIEW

[1,2] Statutory interpretation presents a question of law, 

which an appellate court reviews independently of the lower 

court.1 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.2 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

ANALYSIS

This appeal presents the opportunity to address how a court 

should calculate a probationer’s “remaining period of postrelease supervision”4

 and thus determine the maximum term of 

imprisonment upon revocation of post-release supervision. We 

also address whether a probationer is entitled to credit for time 

served in jail prior to revocation.

Post-release supervision is a relatively new concept in 

Nebraska sentencing law,5 introduced into Nebraska’s statutes 

by 2015 Neb. Laws, L.B. 605, which amended Nebraska law 

to, among other things, reduce the penalties for certain felonies. Before L.B. 605, Class IIIA felonies were punishable by 

a maximum of 5 years’ imprisonment, a $10,000 fine, or both, 

1 State v. Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018).

2 State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018).

3 See State v. Wal, ante p. 308, 923 N.W.2d 367 (2019).

4 § 29-2268.

5 See, State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018); Kennedy, supra

note 1.
- 690 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

with no minimum term of imprisonment.6 L.B. 605 split the 

sentence for Class IIIA felonies into an initial period of imprisonment for a maximum of 3 years and, if imprisonment is 

imposed, added a period of post-release supervision having an 

18-month maximum and 9-month minimum term.7

The Nebraska Probation Administration Act8 provides the 

statutory framework governing post-release supervision. Postrelease supervision is defined as “the portion of a split sentence 

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].”9 Post-release supervision is a 

form of probation.10 A person sentenced to post-release supervision is referred to as a “[p]robationer.”11

All sentences of post-release supervision are served under 

the jurisdiction of the Office of Probation Administration and 

are subject to conditions imposed under § 29-2262 and subject 

to sanctions authorized under § 29-2266.02.12 A court may 

revoke a probationer’s post-release supervision upon finding 

that the probationer has violated one of the conditions of his or 

her post-release supervision.13 The court shall not do so except 

after a hearing upon proper notice where the violation is established by clear and convincing evidence.14 Clear and convincing evidence means that amount of evidence which produces in 

6 See, Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014); State v. Aguallo, 294 

Neb. 177, 881 N.W.2d 918 (2016).

7 Neb. Rev. Stat. § 28-105 (Cum. Supp. 2018).

8 See Neb. Rev. Stat. §§ 29-2246 to 29-2269 (Reissue 2016 & Cum. Supp. 

2018).

9 § 29-2246(13).

10 See, § 29-2246(4); Dill, supra note 5; Kennedy, supra note 1.

11 § 29-2246(5).

12 See § 28-105(5).

13 See § 29-2268(2).

14 See § 29-2267(1).
- 691 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

the trier of fact a firm belief or conviction about the existence 

of a fact to be proved.15

Once a court revokes a probationer’s post-release supervision, is 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 postrelease 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 

Services or in county jail subject to subsection (2) of section 28-105.

(3) If the court finds that the probationer did violate a 

condition of his or her probation, but is of the opinion that 

revocation is not appropriate, the court may order that: 

. . . .

(e) The probationer’s term of probation be extended, 

subject to the provisions of section 29-2263.

The parties offer differing views regarding the approach 

taken by the court in arriving at the 365-day term of imprisonment. Phillips argues the court erred by implementing a hybrid 

approach under both § 29-2268(2) and (3). He contends that the 

court proceeded under § 29-2268(2) when it revoked his postrelease supervision, but also proceeded under § 29-2268(3)(e) 

when the court included the 127 days of absconsion time in 

calculating the “remaining period of post-release supervision.” 

Phillips argues the court thereby erred, based on our opinion in 

State v. Kennedy.

16

In Kennedy, we determined that once a district court has 

found a violation of post-release supervision, it may “proceed 

15 State v. Johnson, 287 Neb. 190, 842 N.W.2d 63 (2014).

16 Kennedy, supra note 1.
- 692 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

under either subsection (2) or subsection (3) of § 29-2268.”17

Phillips also argues that once the court revoked post-release 

supervision, it could not also extend the term of post-release 

supervision. Therefore, Phillips contends that the maximum 

imprisonment the court could have imposed was 295 days. As 

indicated, 295 days represents the amount of time between the 

date of revocation and the end date of Phillips’ original term of 

post-release supervision.

The State argues that the term of imprisonment imposed 

by the court was appropriate based on the State’s interpretation of the phrase “remaining period of post-release supervision” under § 29-2268(2). The State points to our recognition 

in Kennedy that the Nebraska Probation Administration Act 

sometimes refers to probation and post-release supervision 

interchangeably,18 and other times, separately.19 The State contends that when the act is read as a whole, the phrase “remaining period of post-release supervision” does not represent 

a fixed number. The State relies on § 29-2263(5), which 

provides, “[w]henever a probationer disappears or leaves the 

jurisdiction of the court without permission, the time during which he or she keeps his or her whereabouts hidden or 

remains away from the jurisdiction of the court shall be added 

to the original term of probation.” (Emphasis supplied.) The 

State argues that if the reference to the term of probation under 

§ 29-2263(5) is synonymous with the term of post-release 

supervision referenced in § 29-2268(2), then the court was 

free to add Phillips’ absconsion time to his “remaining period 

of post-release supervision.” As a result, the State contends 

that the maximum term the court could have imposed was 295 

days plus 127 days of absconsion time, for a total of 422 days 

17 Id. at 371, 908 N.W.2d at 75 (emphasis supplied).

18 Kennedy, supra note 1. See, e.g., §§ 29-2250, 29-2251, 29-2258, 29-2262, 

and 29-2267.

19 Kennedy, supra note 1. See, e.g., §§ 29-2263(2) and (3) and 29-2268(1) 

and (2).
- 693 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

of imprisonment. The State argues Phillips’ 365-day term of 

imprisonment is therefore valid.

Based on our decision in Kennedy, we agree that once the 

district court revoked Phillips’ post-release supervision, it no 

longer had available the various options under § 29-2268(3), 

including the option to extend the probationer’s term under 

§ 29-2268(3)(e). But the district court here was not extending 

Phillips’ term of post-release supervision under § 29-2268(3); 

it originally sentenced him to 18 months’ post-release supervision, and that term did not change. Instead, the district court 

was simply calculating how much of the 18-month term had 

been served, and how much remained to be served, in order to 

determine the “remaining period of post-release supervision” 

under § 29-2268(2). It did so by considering how many days 

Phillips had actually served on post-release supervision. The 

district court found the 127 days Phillips had absconded20 from 

post-release supervision by purposely avoiding supervision 

should not be considered time he had served on the 18-month 

term of post-release supervision.

We have not previously considered whether absconsion can 

be taken into consideration when calculating the time remaining on a term of post-release supervision under § 29-2268(2). 

Nor have we addressed generally how a court is to calculate the “remaining period of post-release supervision” under 

§ 29-2268(2). While our analysis differs somewhat from that 

of the district court, we ultimately agree with its disposition.

Remaining Period of

Post-Release Supervision

[3] When interpreting a statute, effect must be given, if possible, to all the several parts of a statute; no sentence, clause, 

or word should be rejected as meaningless or superfluous if it 

can be avoided.21 An appellate court must look to the statute’s 

20 See § 29-2266(1).

21 Kennedy, supra note 1.
- 694 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

purpose and give to the statute a reasonable construction which 

best achieves that purpose, rather than a construction which 

would defeat it.22

In Kennedy, we noted that the reference to probation in 

§ 29-2268(1) was not used interchangeably with the reference 

to post-release supervision in § 29-2268(2) and we explained 

that the disposition available to a court differs based on whether 

a probationer is alleged to have violated the terms of probation or post-release supervision. We stated that once a district 

court finds a violation of post-release supervision, the court 

must proceed under either subsection (2) or subsection (3) of 

§ 29-2268 and that this statute “does not authorize any disposition not therein enumerated.”23

Here, the district court proceeded under § 29-2268(2). And, 

as part of calculating the time remaining on Phillips’ term 

of post-release supervision under § 29-2268(2), it took into 

account the number of days Phillips absconded from supervision. Phillips contends this was error, but we disagree.

When determining the amount of time “remaining” on a 

period of post-release supervision, courts are not required to 

turn a blind eye to a probationer’s absconsion from supervision. As the State notes in its brief, to conclude otherwise 

would mean that “if a person refuses to comply with the provisions of their post-release supervision or absconds altogether, 

as [Phillips] did, the clock keeps running and the period of 

noncompliance counts as time served toward the person’s sentence of post-release supervision.”24 The State’s position is in 

line with numerous federal courts of appeal which have held 

that a defendant’s term of supervised release is tolled during a period in which the defendant has absconded from 

supervision.25 As the Third Circuit recently observed, to hold 

22 Id.

23 Id. at 371, 908 N.W.2d at 75.

24 Brief for appellee at 8.

25 See United States v. Island, 916 F.3d 249 (3d Cir. 2019) (collecting cases).
- 695 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

otherwise would not serve the rehabilitative goals of supervised release and would credit defendants for their misdeeds.26

We agree that noncompliance to the degree of absconsion 

suggests that a probationer has ceased serving his or her postrelease supervision sentence, and this fact may be taken into 

consideration by a court when calculating the time served on 

post-release supervision.

While federal courts have held that a defendant’s term of 

supervised release is tolled during a period of absconsion even 

though the federal statute is silent on that point,27 our interpretation finds statutory support in § 29-2263(5), which provides: 

“Whenever a probationer disappears or leaves the jurisdiction 

of the court without permission, the time during which he or 

she keeps his or her whereabouts hidden or remains away from 

the jurisdiction of the court shall be added to the original term 

of probation.” There are no reported appellate opinions construing or applying this statute, but its purpose is obvious: The 

Legislature did not want probationers to be able to hide from 

supervision and simultaneously demand credit toward completing their term of probation or post-release supervision. Stated 

differently, a probationer who has absconded has not actually 

served those days and can be required to do so. We see no 

abuse of discretion in taking this policy into account when 

calculating the time remaining on post-release supervision for 

purposes of § 29-2268(2).

Here, the district court found Phillips was absconded from 

September 28, 2017, to his arrest and detention on February 

5, 2018, and it took that into account when determining how 

many days he had served on his 18-month period of postrelease supervision and, consequently, how much time was 

remaining on his 18-month term. We find no abuse of discretion in considering Phillips’ absconsion in this manner.28

26 Id.

27 See id.

28 See Wal, supra note 3.
- 696 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

We hold that when calculating the “remaining period of 

post-release supervision” under § 29-2268(2), courts must first 

identify the number of days the probationer was originally 

ordered to serve on post-release supervision. As we explain, 

this may require converting a term pronounced in a number of 

months into one consisting of a number of days. This is done 

by counting the number of days from the commencement of 

post-release supervision to the date of the revocation, less any 

days of absconsion. Finally, the court calculates the “remaining 

period of post-release supervision” by subtracting the number 

of days actually served from the number of days ordered to 

be served.

[4] Section 28-105(1) defines periods of post-release supervision in terms of months. 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). Unless the context shows otherwise, the 

word “month” used in a Nebraska statute means “calendar 

month.”29 A calendar month is a period terminating with the 

day of the succeeding month, numerically corresponding to 

the day of its beginning, less one.30 However, we must also 

consider Neb. Rev. Stat. § 25-2221 (Reissue 2016), which 

provides in part as follows: “Except as may be otherwise more 

specifically 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.”31

Here, Phillips was ordered to serve 18 months’ post-release 

supervision commencing September 4, 2017. As a result, barring any period of absconsion, Phillips would have completed 

his post-release supervision on March 4, 2019, which equated 

29 Geddes v. York County, 273 Neb. 271, 729 N.W.2d 661 (2007).

30 Id.

31 See State v. Hirsch, 245 Neb. 31, 511 N.W.2d 69 (1994).
- 697 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

to 546 days. We digress to remind the bench and bar that the 

outcome of converting a period of months to a number of days 

will vary depending on the date that period commences and 

the length of the months falling within that particular period. 

Here, the 18-month period equated to 546 days. But that will 

not always be so, and courts should perform the calculation by 

applying the statutory computation rules to the particular facts 

of each sentence.

The court found that after serving 24 days of post-release 

supervision, Phillips absconded for a period of 127 days. 

Because the court found Phillips’ absconsion began on 

September 28, 2017, and ended when he was rearrested on 

February 5, 2018, he actually was absconded for a period of 

130 days. Phillips’ post-release supervision was revoked on 

May 14, 2018, 98 days after his rearrest. On the date of revocation, Phillips had actually served 122 days (24+98) of his 

original 546-day term of post-release supervision. As a result, 

on the date of his revocation, Phillips had 424 days remaining 

on his post-release supervision. Our calculations are set forth 

in the appendix attached hereto and incorporated herein by 

reference. Therefore, the court’s imposition of a 365-day term 

of imprisonment was within the statutory range. Phillips’ first 

assignment of error is without merit.

Credit for Time Served

This brings us to Phillips’ argument that the court was 

required to give him credit for the time he spent in jail pending 

revocation. Phillips argues that the presentence investigation 

report indicates he served 98 days in jail pending revocation and that the court erred by awarding Phillips 0 days for 

time served. The State argues that Phillips received credit for 

the days he spent in jail, because the court did not include 

that time when it calculated Phillips’ maximum possible term 

of imprisonment upon revocation. As our calculations above 

demonstrate, the days Phillips spent in jail pending revocation 

are considered days he actually served against his 18-month 

period of post-release supervision. As such, those days should 
- 698 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

not also be credited against Phillips’ term of imprisonment 

upon revocation.

To support his argument for jail credit, Phillips relies upon 

Neb. Rev. Stat. § 47-503 (Reissue 2010), which provides in 

relevant part:

(1) Credit against a jail term shall be given to any person 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 . . . .

But § 47-503 does not apply to the time Phillips spent in 

jail, because he had not yet been revoked from supervision 

and was still serving the post-release supervision portion of his 

original split sentence. We find that the 98 days Phillips spent 

in jail were not “as a result of the criminal charge for with the 

jail term [was] imposed” under § 47-503, but, rather, were a 

result of violating the terms of supervision.

The imposition of a term of post-release supervision that 

includes conditions is part of the sentence.32 Under Neb. Ct. 

R. § 6-1904(A) (rev. 2016), “the court shall, at the time a 

sentence is pronounced, impose a term of incarceration and 

a term of post-release supervision pursuant to Neb. Rev. Stat. 

§ 29-2204.02(1), and shall enter a separate post-release supervision order that includes conditions pursuant to Neb. Rev. 

Stat. § 29-2262.”

Phillips violated the conditions of his supervision by failing 

to report to his probation officer and failing to refrain from 

unlawful conduct, and his probation was revoked for these violations.33 These conditions were imposed upon Phillips under 

his original sentence. Phillips did not spend 98 days in jail 

prior to revocation as a result of a criminal charge, but, rather, 

32 See, Dill, supra note 5; State v. Phillips, 297 Neb. 469, 900 N.W.2d 522 

(2017).

33 See § 29-2262(2)(a) and (k).
- 699 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

as a part of the administration of his sentence of post-release 

supervision. As explained above, once a court has revoked a 

probationer under § 29-2268(2), the court is not authorized to 

order any disposition not enumerated therein. The Legislature 

has not demonstrated within § 29-2268 that jail credit should 

be given for time served prior to revocation. In addition, the 

record indicates that Phillips spent time in jail as a result of his 

failure to appear.34

The court did not err in denying Phillips’ request for jail 

time credit, because it credited the 98 days he spent in jail as 

time actually served on his term of post-release supervision. 

Phillips’ second assignment of error is without merit.

Court Did Not Abuse Discretion

[5,6] Lastly, Phillips claims that the 365-day term of imprisonment was excessive. Because a court has discretion under 

§ 29-2268(2) to impose, upon revocation, any term of imprisonment up to the remaining period of post-release supervision, 

an appellate court will not disturb that decision absent an abuse 

of discretion.35 An abuse of discretion occurs when a court’s 

reasons or rulings are clearly untenable and unfairly deprive 

the litigant of a substantial right and a just result.36

Based upon the record, which includes the court’s order 

imposing imprisonment and a presentence investigation report, 

we cannot conclude that the court abused its discretion. The 

court’s order stated that it imposed the 365-day term of imprisonment based on

the nature and circumstances of the crime and the history, character and condition of [Phillips, and] the protection of the public, because the risk is substantial 

that [Phillips] would engage in additional criminal conduct and because a lesser sentence would depreciate the 

34 See State v. Heckman, 239 Neb. 25, 473 N.W.2d 416 (1991).

35 See Wal, supra note 3.

36 See State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
- 700 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

seriousness of [Phillips’] crime and promote disrespect 

for the law.

Phillips argues that the 365-day term of imprisonment does 

not give sufficient weight to his willingness to enter a plea of 

no contest to the original charge. However, by entering into the 

plea deal, Phillips received the significant benefit of having his 

charge reduced from a Class ID felony, with a maximum sentence of 50 years’ imprisonment, to a Class IIIA felony.

Phillips suggests that based on the presentence investigation report, he expressed remorse, accepted responsibility 

for the offense, and “appear[ed] to be in the contemplative 

stage of change.” However, Phillips is referring to the report 

that was generated for his sentence on the terroristic threats 

conviction and not the most recent presentence report. The 

presentence report prepared for Phillips’ revocation indicates 

that Phillips refused to meet with the probation officer and did 

not make a statement for the report. The report that Phillips 

refers to indicates that he was “assessed as a very high risk to 

re-offend.” When Phillips was arrested after absconding from 

supervision, he was charged with possession of a controlled 

substance and was found to be in possession of a switchblade 

and a BB gun. The court articulated that the 365-day term 

of imprisonment reflected a concern for public safety. It was 

within the court’s discretion to impose a term of imprisonment 

that was approximately 85 percent of the maximum. Phillips’ 

assignment of error that the court abused its discretion is without merit.

CONCLUSION

The 365-day term of imprisonment imposed by the court 

was within the statutory range and was not an abuse of discretion. The court did not err when it denied Phillips’ request for 

credit for time served.

Affirmed.

Freudenberg, J., not participating.

(See page 701 for the appendix.)
- 701 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. PHILLIPS

Cite as 302 Neb. 686

APPENDIX

Calculation of Remaining Term of Post-Release Supervision (PRS)

1. From commencement date of PRS, determine original ending date

(here, a term of 18 months of PRS):

Term began September 4, 2017 First day excluded per 

§ 25-2221

Next day September 5, 2017 Beginning date for 

calculation of months

18 months 

forward

March 5, 2019 First step of calendar 

month method

Back 1 day March 4, 2019 Second step of calendar 

month method

Ending date March 4, 2019 Result of § 25-2221 and

calendar month method

2. Calculate original number of days of term of PRS:

Term began September 4, 2017

Term ends March 4, 2019

Number of days per § 25-2221 546 days

3. Calculate number of days of PRS served:

(a) Days from beginning date to date of absconsion:

Term began September 4, 2017

Absconsion began September 28, 2017

PRS days served (per § 25-2221) 24

(b) Days from resumption date to date of revocation:

Arrest and detention February 5, 2018

Revocation May 14, 2018

PRS days served (per § 25-2221) 98

(c) Total number of days served:

From beginning to absconsion 24

From resumption to revocation 98

Total days of PRS served 122

4. From original number of days, subtract days served:

Original number of days 546

Total days of PRS served 122

Number of days remaining 424