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STATE v. LEAHY

Cite as 301 Neb. 228

State of Nebraska, appellee, v. 

John R. Leahy III, appellant.

___ N.W.2d ___

Filed October 5, 2018. No. S-17-1047.

1. 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.

2. ____: ____. An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the trial 

court.

3. ____: ____. 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 imposed.

4. Sentences. 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.

5. ____. 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.

6. ____. Generally, it is within a trial court’s discretion to direct that 

sentences imposed for separate crimes be served either concurrently or 

consecutively.

7. Judges: Plea Bargains: Sentences. A judge is not bound to give a 

defendant the sentence recommended by a prosecutor under a plea 

agreement.

Nebraska Supreme Court Online Library

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

10/26/2018 09:12 AM CDT
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STATE v. LEAHY

Cite as 301 Neb. 228

Appeal from the District Court for Hitchcock County: David

W. Urbom, Judge. Affirmed.

Richard Calkins, of Calkins Law Office, for appellant.

Douglas J. Peterson, Attorney General, and Sarah E. Marfisi 

for appellee.

Heavican, C.J., Cassel, Stacy, Funke, and Papik, JJ., and

Bishop and Welch, Judges.

Papik, J.

John R. Leahy III was serving a criminal sentence in 

Colorado when he was extradited to Nebraska to face charges 

here. Approximately 19 months later, Colorado authorities 

granted Leahy parole. After he was convicted of kidnapping 

and manslaughter in Nebraska, the district court determined 

he was not entitled to credit for time served prior to his 

parole in Colorado. Leahy now appeals the denial of credit 

for time served, the admission of an exhibit the district court 

received in the course of determining whether and to what 

extent he was entitled to credit for time served, and the consecutive nature of his sentences. Having found no reversible 

error in any aspect of the district court’s sentencing of Leahy, 

we affirm.

BACKGROUND

Charges Against Leahy.

In June 2015, the State filed an information charging Leahy 

with first degree murder for killing Austin Wright in the perpetration of a kidnapping or attempted kidnapping. Pursuant 

to a plea agreement, Leahy pleaded no contest to an amended 

information charging him with kidnapping and manslaughter. 

In accordance with the plea agreement, Leahy also pleaded no 

contest to an amended information in a separate case, charging him with possession of methamphetamine with intent to 

deliver. As agreed, the State recommended concurrent sentences for all charges in both cases.
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According to the factual basis supplied by the State at 

the plea hearing, Leahy and Wright were acquaintances, and 

Wright stayed briefly at Leahy’s residence beginning February 

26, 2014. On March 7, Wright’s mother contacted Leahy. 

She had not seen Wright for several days and asked Leahy 

where he was. Leahy told Wright’s mother that Wright had 

shown up high “on something” at Leahy’s residence and that 

Wright could not stay there anymore. On March 8, Leahy told 

Wright’s mother that he had dropped Wright off near a motel 

in McCook, Nebraska, that day. On March 9, Wright’s mother 

filed a missing person’s report.

On March 13 and 20, 2014, police interviewed Leahy. At 

that time, Leahy told officers that he had dropped Wright off 

near a motel in McCook. A search of Leahy’s residence on 

April 9 uncovered 26.82 grams of methamphetamine and a 

cell phone video of Leahy and Wright arguing about debts that 

Wright owed Leahy for drugs, among other things. The video 

was date stamped March 6.

The day after the search, Leahy asked to talk to police. 

He admitted that under the pretense of going to McCook, he 

and another passenger took Wright in his car, that he forced 

Wright to cover his head with a sweatshirt, that he drove the 

car on a circuitous route intended to confuse Wright, and that 

he left Wright alone in an isolated rural area with no means 

of transportation. Before leaving, Leahy pointed Wright in the 

general direction of the nearest town, 8 miles away. The nearest inhabited dwelling was over 11

⁄2 miles in nearly the opposite direction.

After Leahy recounted those details, officers went to the 

area Leahy said he had left Wright. Nearby, officers found 

Wright’s naked body and some of his clothing. Authorities 

identified Wright using dental records, and an autopsy and 

forensic testing showed that he died of hypothermia sometime between early March 2014 and the date of discovery on 

April 11.

The district court accepted Leahy’s pleas of no contest.
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STATE v. LEAHY

Cite as 301 Neb. 228

Initial Sentencing Hearing.

After the district court accepted Leahy’s pleas, it continued 

sentencing for preparation of a presentence investigation report 

(PSR). At the subsequent sentencing hearing, a dispute arose 

regarding the time-served calculation in the PSR. Leahy was 

serving a 3-year sentence in Colorado when he was charged 

in Nebraska for the current offenses. He was transported to 

Nebraska to await trial according to the interstate Agreement 

on Detainers, see Neb. Rev. Stat. § 29-759 (Reissue 2016), and 

began his incarceration in Nebraska on May 7, 2015. While 

still detained in Nebraska, Leahy was paroled by the State of 

Colorado on November 28, 2016. The PSR as initially prepared 

is not in the record, but arguments by counsel at the hearing 

suggest that it indicated Leahy was entitled to credit for all of 

the time he was detained in Nebraska prior to his convictions 

and sentencing.

At the hearing, the State contended that Leahy should not 

receive credit for time he was detained in Nebraska prior to 

Colorado’s grant of parole on November 28, 2016. Leahy’s 

counsel did not dispute that Leahy was paroled by Colorado on 

November 28, but argued that Leahy should receive credit for 

any time he spent incarcerated in Nebraska awaiting trial on 

Nebraska charges. The district court scheduled another hearing 

to address credit for time served.

Additional Hearing Addressing 

Credit for Time Served.

At the next hearing, the State offered exhibit 51, which 

included a signed cover letter from a technician at the Colorado 

Department of Corrections, “Time/Release Operations.” 

The letter stated that Leahy was paroled from the Colorado 

Department of Corrections on November 28, 2016.

Leahy’s counsel objected on foundation and hearsay, noting that he had not had the opportunity to question the author 

of the document. Leahy’s counsel further argued that Leahy 

may have completed his Colorado sentence earlier if he had 
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not been transported to Nebraska but that there was no way to 

know for certain, because no one was present to explain exhibit 

51. The district court ultimately overruled Leahy’s objection 

and received exhibit 51.

In a subsequent written order, the district court ruled that 

Leahy would not receive credit toward his Nebraska sentences 

for the time beginning May 7, 2015, and ending November 

28, 2016, because his Colorado sentence was still running during that period. However, the district court did allow Leahy 

credit for time he served after he was paroled by the Colorado 

Department of Corrections.

Sentencing Order.

Almost 2 weeks after issuing its written order on the issue of 

time served, the district court held a sentencing hearing. At the 

hearing, the parties presented arguments, including aggravating 

and mitigating information from the PSR. The PSR reflected 

that Leahy was 22 years old at the time of the current offenses, 

that he was single with no children, that he left school after 

completing the 10th grade, and that at the time of his arrest for 

the current offenses, he had been employed at a drilling company full time for 7 or 8 months.

According to the PSR, Leahy was diagnosed with bipolar 

disorder as a youth but has never treated the condition with 

medication. Leahy reported that his mental health is good, 

though he admitted attempting suicide several times after his 

mother died. Leahy had used marijuana daily since age 12. 

Beginning at age 14, Leahy used methamphetamine intermittently until 2013, when he began using it every day. Leahy 

admitted to having a problem with drugs and to selling illegal drugs.

Leahy’s criminal history began when he was convicted 

of pharmaceutical drug possession at age 14. Subsequently, 

Leahy was convicted of assault, minor in possession, failure to appear, two felony drug possession charges, and false 

reporting. Regarding Wright, Leahy reported that he felt 
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“horrible” and never anticipated that Wright would die. He 

stated that he believed he deserved to “serve time just for what 

he did wrong, but not made an example of.” He expressed an 

intent to take advantage of educational opportunities during 

his incarceration.

At the sentencing hearing, Leahy apologized for his actions. 

He admitted that he initially lied about Wright’s whereabouts, 

but he asked the district court to consider that he had since 

been honest and accepted responsibility through his no contest pleas.

Before pronouncing the sentences, the district court explicitly stated that it had considered all of the customary factors 

enumerated in sentencing. The district court proceeded to 

reference information it obtained from the PSR. It remarked 

specifically on Leahy’s age, education, employment, criminal 

history, and use of drugs. Noting Leahy’s role in covering 

Wright’s head and taking him on a circuitous route in Leahy’s 

car before leaving him alone in a rural area, the district court 

observed that but for Leahy’s actions, Wright would still 

be alive. The district court stated that lesser sentences than 

the ones to be imposed would depreciate the seriousness of 

Leahy’s crimes and promote disrespect for the law.

The district court sentenced Leahy to 24 to 30 years’ imprisonment for kidnapping and 18 to 20 years’ imprisonment for 

manslaughter. It ordered the sentences to run consecutively to 

each other and to the sentence of 8 to 10 years’ imprisonment 

that Leahy received in a separate case for the conviction of 

possession of methamphetamine with intent to deliver.

ASSIGNMENTS OF ERROR

Leahy assigns, rephrased, that the district court erred (1) in 

denying him credit for the time served in the Hitchcock County 

jail before November 28, 2016; (2) in receiving exhibit 51 

over his objection; and (3) in imposing excessive sentences by 

sentencing him to consecutive terms of imprisonment for the 

various convictions.
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STATE v. LEAHY

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STANDARD OF REVIEW

[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. See State v. Wills, 285 

Neb. 260, 826 N.W.2d 581 (2013).

[2] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by 

the trial court. State v. Russell, 299 Neb. 483, 908 N.W.2d 

669 (2018).

ANALYSIS

Credit for Time Served.

Leahy contends that he should have received credit for all 

the time he spent detained in Nebraska awaiting trial and sentencing on his Nebraska charges. Leahy argues that because 

he was detained in a Nebraska jail awaiting the disposition of 

the Nebraska charges, that entire time should be credited to his 

Nebraska sentences.

Leahy’s argument, however, fails to account for the statute 

that governs whether and to what extent he is entitled to credit 

for time served or cases interpreting and applying that statute. 

Neb. Rev. Stat. § 83-1,106(1) (Reissue 2014) states:

Credit against the maximum term and any minimum term 

shall be given to an offender for time spent in custody as 

a result of the criminal charge for which a prison sentence 

is imposed or as a result of the conduct on which such a 

charge is based. This shall specifically include, but shall 

not be limited to, time spent in custody prior to trial, 

during trial, pending sentence, pending the resolution of 

an appeal, and prior to delivery of the offender to the 

custody of the Department of Correctional Services, the 

county board of corrections, or, in counties which do not 

have a county board of corrections, the county sheriff.

(Emphasis supplied.)

In prior cases interpreting and applying § 83-1,106(1), it 

has been held that if a defendant is serving a sentence on a 
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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. For 

example, in State v. Baker, 250 Neb. 896, 553 N.W.2d 464 

(1996), a defendant was sentenced to a term of imprisonment 

for being a felon in possession of a firearm and, on that same 

day, charged with other offenses arising out of an unrelated 

murder. Even though the defendant was detained while awaiting trial and sentencing on the charges arising out of the murder, we held that he was not entitled to credit on his eventual 

sentence for the charges arising out of the murder so long as he 

was continuing to serve his sentence for being a felon in possession of a firearm. Id.

Similarly, in State v. McLeaney, 6 Neb. App. 807, 578 

N.W.2d 68 (1998), in a case much like this one, the Nebraska 

Court of Appeals held that an individual who was serving a 

Missouri sentence and was transported to Nebraska to face 

charges was not entitled to credit for time spent awaiting trial 

and sentencing in Nebraska. The Court of Appeals cited Baker

and explained that § 83-1,106(1) “provides for credit for the 

time the offender is forced to be in custody as a result of 

the criminal charge for which sentence is imposed.” State v. 

McLeaney, 6 Neb. App. at 810, 578 N.W.2d at 70 (emphasis in 

original). Because the defendant in McLeaney was in custody 

because of the sentence in Missouri, the Court of Appeals concluded he was not entitled to credit for time served. We have 

subsequently cited the Court of Appeals’ opinion in McLeaney

with approval. See State v. Hunnel, 290 Neb. 1039, 863 

N.W.2d 442 (2015).

As Baker and McLeaney demonstrate, what matters in the 

credit for time served analysis is not whether Leahy was 

detained in Nebraska and awaiting trial and sentencing on 

Nebraska charges, but, rather, whether he was forced to be in 

custody because of those charges. As long as Leahy was serving a sentence on another conviction while awaiting trial and 

sentencing on the Nebraska charges, he was not forced to be 
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in custody because of the Nebraska charges and is thus not 

entitled to credit for time served on his Nebraska sentences 

under § 83-1,106(1).

On the question of whether Leahy was serving a sentence on 

another conviction while detained in Nebraska, there does not 

appear to be much of a dispute. Leahy concedes that he was 

serving a sentence in Colorado at the time he was transported 

to Nebraska to face charges here. Under Colorado law, Leahy 

would have continued to receive credit for time served on 

his Colorado sentence even while detained in Nebraska. Like 

Nebraska, Colorado has adopted the interstate Agreement on 

Detainers, which provides that time being served on a sentence 

continues to run while the prisoner is being made available for 

trial as required by the agreement. See Colo. Rev. Stat. Ann. 

§ 24-60-501 (West 2015). See, also, Pleasant v. Tihonovich, 

647 P.2d 236 (Colo. 1982) (holding prisoner serving Colorado 

sentence was entitled to credit for time he was in New Mexico 

pursuant to interstate Agreement on Detainers).

While Leahy does not dispute that he was earning credit 

on his Colorado sentence until being paroled, he does assert 

that he may have been granted parole earlier had he not been 

transported to Nebraska. Leahy appears to take the position 

that he should receive credit for time served for any days he 

was detained in Nebraska after the date that Colorado authorities would have paroled him had he remained there. Leahy, 

however, cannot direct us to anything in the credit for time 

served statutes that would require courts to engage in the type 

of counterfactual inquiry he envisions in order to calculate 

credit for time served. Indeed, we have said that the credit for 

time served to which a defendant is entitled is “an absolute 

and objective number that is established by the record.” State 

v. Clark, 278 Neb. 557, 562, 772 N.W.2d 559, 563 (2009). 

The calculation of credit for time served would quickly lose 

any absolute and objective quality if sentencing courts were 

required to determine when a sentence would have ended as 

opposed to when it actually did.
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Since Leahy was in custody because of his Colorado sentence up until he was paroled on November 28, 2016, the 

district court correctly denied him credit for time spent in 

custody prior to that date.

Exhibit 51.

Leahy also argues that the district court erred by receiving 

exhibit 51 in the course of one of the hearings regarding the 

credit for time served issue. Leahy objected to the exhibit at 

the hearing on foundation and hearsay grounds. On appeal, 

he argues that the exhibit should not have been admitted, 

because foundation was lacking and because its admission 

denied him his right to confrontation guaranteed by the Sixth 

Amendment to the U.S. Constitution.

Initially, we note that it is difficult to discern how the district court’s receipt of exhibit 51 worked to Leahy’s detriment. 

The only assertion in exhibit 51 that the court appeared to rely 

on was the fact that Leahy was paroled on November 28, 2016. 

Leahy, however, does not contest that he was paroled on this 

date. Moreover, if anything, the district court’s receipt of information indicating the date of Leahy’s parole benefited Leahy, 

because the district court granted Leahy credit for time served 

after he was paroled on his Colorado sentence.

In any event, Leahy’s arguments fail to account for the fact 

that exhibit 51 was received in the sentencing phase of the 

case. At the time exhibit 51 was received, Leahy’s pleas had 

already been accepted. The only thing left to be done at that 

point was to impose Leahy’s sentences, and the district court 

received exhibit 51 at a hearing set for the purpose of determining whether Leahy would be entitled to credit for time 

served on that sentence.

We have held that the traditional rules of evidence are 

relaxed during the sentencing phase and that evidence may 

be presented as to any matter that the court deems relevant 

to the sentence. See State v. Pullens, 281 Neb. 828, 800 

N.W.2d 202 (2011). Exhibit 51 related to whether and to 
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what extent Leahy was entitled to credit for time served and 

could thus be considered by the district court. In addition, 

even if we assume that Leahy’s objection to exhibit 51 on 

hearsay grounds was sufficient to preserve his argument that 

consideration of exhibit 51 violated his right to confrontation, 

we have held that the right to confrontation is inapplicable 

to sentencing proceedings. See State v. Galindo, 278 Neb. 

599, 774 N.W.2d 190 (2009). See, also, U.S. v. Powell, 650 

F.3d 388 (4th Cir. 2011) (collecting cases from federal circuit courts holding that Confrontation Clause does not apply 

at sentencing). The district court did not err by receiving 

exhibit 51.

Excessive Sentences.

Finally, Leahy assigns that the district court erred in imposing excessive sentences. Leahy does not dispute that the sentences imposed were within statutory limits. Rather, he challenges the consecutive nature of his sentences. We conclude 

that the district court did not commit reversible error in ordering that Leahy’s sentences be served consecutively.

[3-5] 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 

imposed. State v. Russell, 299 Neb. 483, 908 N.W.2d 669 

(2018). 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. Id.

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 
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circumstances surrounding the defendant’s life. State v. Steele, 

300 Neb. 617, 915 N.W.2d 560 (2018).

Leahy acknowledges that the district court expressly stated 

these considerations. However, he contends that the district 

court did not properly weigh the factors or fully consider them, 

especially as they apply to the decision to impose Leahy’s 

sentences consecutively rather than concurrently. In particular, 

Leahy argues that the district court neglected to consider his 

mentality, the motivation for the offenses, and the degree of 

violence involved, which, he contends, all amounted to mitigating factors. We disagree with Leahy’s characterization of the 

district court’s analysis.

Our review of the record shows that the district court properly considered and applied the necessary sentencing factors. 

In sentencing Leahy, the district court reviewed the information, both aggravating and mitigating, in the PSR. It also heard 

detailed arguments from counsel. As noted, the district court 

specifically stated that it had considered all of the customary 

factors enumerated in sentencing. It then discussed specific 

facts pertaining to a majority of those factors. We do not find 

an abuse of discretion in the court’s consideration of the sentencing factors.

[6,7] Nor do we find that the district court abused its discretion in making Leahy’s sentences consecutive. Generally, 

it is within a trial court’s discretion to direct that sentences 

imposed for separate crimes be served either concurrently or 

consecutively. State v. Vanness, 300 Neb. 159, 912 N.W.2d 

736 (2018). Pursuant to the plea agreement, the State recommended that the district court impose concurrent sentences 

for Leahy’s offenses. As Leahy concedes, however, a judge is 

not bound to give a defendant the sentence recommended by 

a prosecutor under a plea agreement. See State v. GonzalezFaguaga, 266 Neb. 72, 662 N.W.2d 581 (2003). And the district court specifically advised Leahy of this fact at the plea 

hearing. In light of the familiar sentencing factors set forth 

above and Leahy’s role in Wright’s death, we cannot say that 
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the district court abused its discretion in imposing consecutive sentences.

CONCLUSION

We find no basis to reverse any aspect of Leahy’s sentences. 

The district court correctly calculated the extent to which 

Leahy was entitled to credit for time served, did not err by 

receiving exhibit 51, and did not abuse its discretion by imposing consecutive sentences.

Affirmed.

Miller-Lerman and Freudenberg, JJ., not participating.