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STATE v. CARNGBE 347

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file an amended complaint; such a conditional order is not 

a judgment.

CONCLUSION

Because Bonnie appealed from a conditional order and not a 

final judgment, we lack jurisdiction over the appeal. Therefore, 

we must dismiss the appeal.

Appeal dismisse

Wright, J., not participating.

State of Nebraska, appellee,

Wellington J. Carngbe, 

___ N.W.2d ___

Filed June 13, 2014. No. S-13-1077.

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. Statutes: Appeal and Error. Statutory interpretation is a question of law that an 

appellate court resolves independently of the trial court.

3. Sentences. Imposing a sentence within statutory limits is a matter entrusted to the 

discretion of the trial court.

4. Statutes: Appeal and Error. An appellate court gives statutory language its 

plain and ordinary meaning.

5. Statutes: Legislature: Intent. In construing a statute, a court must determine 

and give effect to the purpose and intent of the Legislature as ascertained from 

the entire language of the statute considered in its plain, ordinary, and popular sense.

6. Statutes. A court must attempt to give effect to all parts of a statute, and if it 

can be avoided, no word, clause, or sentence will be rejected as superfluous 

or meaningless.

7. Sentences: Appeal and Error. Where a sentence imposed within the statutory 

limits is alleged on appeal to be excessive, the appellate court must determine 

whether the 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.

8. Judgments: Words and Phrases. 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.

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, 
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348 288 NEBRASKA REPORTS

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.

Appeal from the District Court for Lancaster County: Jod

Nelson, Judge. Affirmed as modifi

Dennis R. Keefe, Lancaster County Public Defender, and 

Timothy M. Eppler for appellant.

Jon Bruning, Attorney General, and George R. Love for 

appellee.

Heavican, C.J., Wright, Connolly, Steph

Miller-Lerman, and Casse

Heavican, C

INTRODUCTION

Wellington J. Carngbe pled no contest to one count of burglary. He was sentenced to 6 to 8 years’ imprisonment and 

given credit for time served of 4 days. Carngbe appeals. We 

affirm as modified.

FACTUAL BACKGROUND

According to the factual basis provided by the State, on 

August 21, 2012, a break-in was reported at a residence located 

in rural Lancaster County. Several items were stolen, including 

$400, a bowie knife, a PlayStation 3 video game system, several PlayStation games, and a laptop computer. An older model 

white Cadillac had been seen in the area around the time of 

the incident.

Several days later, on August 24, 2012, a home invasion 

robbery occurred at a location near the site of the first breakin, again in Lancaster County. A Dodge Neon was seen in 

the area.

The next day, August 25, 2012, law enforcement located and 

stopped the Neon. Carngbe and another individual were in the 

vehicle. Consent was given for a search of the vehicle, and the 

bowie knife and the PlayStation were found inside the vehicle. 

The laptop was found in a later search of Carngbe’s home. 

The plates on the Neon were later found to belong to a white 

Cadillac registered in Carngbe’s name.
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Carngbe was arrested after the traffic stop on August 25, 

2012. Two citations were issued: one for possession of stolen 

property; the other for possession of a concealed weapon, robbery, and possession of a deadly weapon by a prohibited person. Carngbe was charged by information on September 21 for 

burglary and attempted robbery for the August 24 incident. This 

case was docketed as No. CR 12-1012 in the district court.

Carngbe was held at Lancaster County corrections pending 

trial in case No. CR 12-1012 from August 26 to October 16, 

2012, and again from October 21, 2012, to March 10, 2013, for 

a total of 193 days. A jury trial began March 6. Following trial, 

Carngbe was acquitted.

Carngbe was then charged by information on May 10, 2013, 

for burglary and possession of a deadly weapon by a prohibited 

person for the August 21, 2012, incident. This case was docketed as No. CR 13-508 in the district court and is the case currently on appeal. Carngbe was arrested on that information on 

May 15, 2013, and arraigned that same day. He pled no contest 

to burglary on September 19, and the possession of a deadly 

weapon charge was dismissed.

Carngbe was sentenced on November 26, 2013, to 6 to 8 

years’ imprisonment. Citing Neb. Rev. Stat. § 83-1,106(4) 

(Reissue 2008), Carngbe argued that he was entitled to credit 

for time served of 197 days—4 for the current charge and 193 

for the time he was incarcerated pending his trial in case No. 

CR 12-1012. The district court rejected Carngbe’s claim as to 

the 193 days, but gave him credit for time served of 4 days.

ASSIGNMENTS OF ERROR

Carngbe assigns that the district court erred in (1) not giving him credit for time served of 193 days from case No. 

CR 12-1012 and (2) imposing an excessive sentence.

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

1 State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013).
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350 288 NEBRASKA REPORTS

[2] Statutory interpretation is a question of law that an 

appellate court resolves independently of the trial court.2

[3] Imposing a sentence within statutory limits is a matter 

entrusted to the discretion of the trial court.3

ANALYSIS

Interpretation of § 83-

In his first assignment of error, Carngbe assigns that the 

district court erred in not crediting his sentence for time served 

of 193 days. Carngbe contends that he is entitled to this credit 

under § 83-1,106(4).

[4,5] This case presents an issue of statutory interpretation. 

We give statutory language its plain and ordinary meaning.4

And in construing a statute, a court must determine and give 

effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.5

Section 83-1,106 provides in relevant part:

(1) 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.

. . . .

(4) If the offender is arrested on one charge and prosecuted on another charge growing out of conduct which 

2 State v. Ramirez, 285 Neb. 203, 825 N.W.2d 801 (2013).

3 State v. Burton, 282 Neb. 135, 802 N.W.2d 127 (2011).

4 State v. Schanaman, 286 Neb. 125, 835 N.W.2d 66 (2013).

5 State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
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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.

Relying on the plain language of § 83-1,106, we conclude 

Carngbe is entitled to credit for time served under subsection 

(4). Here, Carngbe was arrested for the August 24, 2012, incident and acquitted. But Carngbe was later prosecuted for the 

August 21 break-in, which occurred prior to Carngbe’s August 

25 arrest.

We are not persuaded by the State’s contention that for 

§ 83-1,106(4) to apply, the conduct in question must be the 

same or related to the conduct for which time was originally 

served. There is nothing in the plain language of § 83-1,106(4) 

that requires such a relationship.

[6] Moreover, there is such a relationship required under 

§ 83-1,106(1). That subsection provides that credit shall be 

given for time served “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.” If this court were to 

read the requirement of such a relationship into § 83-1,106(4), 

it would render that subsection superfluous to § 83-1,106(1). 

But a court must attempt to give effect to all parts of a statute, 

and if it can be avoided, no word, clause, or sentence will be 

rejected as superfluous or meaningless.6

We conclude that Carngbe is correct that he was entitled to 

credit for time served for the time that he spent in custody prior 

to his acquittal for the August 24, 2012, incident. We modify 

Carngbe’s sentence accordingly.

Excessive Sent

[7,8] Carngbe also assigns that the district court erred in 

imposing upon him an excessive sentence. The relevant principles of law are well known. Where a sentence imposed within 

the statutory limits is alleged on appeal to be excessive, the 

appellate court must determine whether the sentencing court 

6 State v. Parks, 282 Neb. 454, 803 N.W.2d 761 (2011).
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352 288 NEBRASKA REPORTS

abused its discretion in considering and applying the relevant 

factors as well as any applicable legal principles in determining the sentence to be imposed.7

 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.8

[9] 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 amount of violence involved in the commission of 

the crime.9

Carngbe pled no contest to burglary, which is a Class III 

felony. Class III felonies are punishable by 1 to 20 years’ 

imprisonment, a $25,000 fine, or both.10 Thus, Carngbe’s sentence of 6 to 8 years’ imprisonment did not exceed the statutory limits.

Nor was Carngbe’s sentence otherwise excessive. Carngbe 

has a criminal record that includes minor traffic violations, but 

also charges for marijuana possession, possession of a controlled substance with intent to deliver, unauthorized use of a 

financial transaction document, disturbing the peace, obstructing a peace officer, and third degree domestic assault.

The district court noted during sentencing that Carngbe 

indicated he wanted to take responsibility for his actions, yet 

he had failed to appear in court on a few occasions, and also 

did not show up for his appointment with a probation officer 

in connection with his presentence investigation. The district 

court noted, and we agree, that such actions were “not signs 

of responsibility.”

The district court did not abuse its discretion in sentencing Carngbe to 6 to 8 years’ imprisonment. Carngbe’s second 

assignment of error is without merit.

7 State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).

8 State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).

9 Id.

10 Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2012).
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CONCLUSION

Carngbe is entitled to credit for 197 days for time served, or 

193 days for his prior criminal case wherein he was acquitted 

and another 4 days for time served on this charge. We therefore modify Carngbe’s sentence to provide for a credit for time 

served of 197 days. As modified, the judgment of the district 

court is affirmed.

Affirmed as modifie