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State of Nebraska, appellee, v. 

Jennifer A. McCulley, appellant.

___ N.W.2d ___

Filed February 28, 2020. No. S-19-313.

1. Sentences: Appeal and Error. Sentences within statutory limits will be 

disturbed by an appellate court only if the sentence complained of was 

an abuse of judicial discretion.

2. ____: ____. 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.

3. ____: ____. 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.

4. Sentences: Restitution: Appeal and Error. 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.

5. Sentences: Records. The credit for time served to which a defendant 

is entitled is an absolute and objective number that is established by 

the record.

6. Sentences: Restitution. Restitution ordered by a court pursuant to Neb. 

Rev. Stat. § 29-2280 (Reissue 2016) is a criminal penalty imposed as a 

punishment for a crime and is part of the criminal sentence imposed by 

the sentencing court.

7. Restitution: Appeal and Error. On appeal, an appellate court does not 

endeavor to reform the trial court’s order. Rather, the appellate court 

reviews the record made in the trial court for compliance with the statutory factors that control restitution orders.

8. Criminal Law: Restitution: Damages. Pursuant to Neb. Rev. Stat. 

§ 29-2281 (Reissue 2008), 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, 

Nebraska Supreme Court Online Library

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

04/17/2020 01:07 AM CDT
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and (3) the amount of restitution a criminal defendant is capable 

of paying.

9. Sentences: Records. Neb. Rev. Stat. § 29-2260 (Reissue 2008) does not 

require the trial court to articulate on the record that it has considered 

each sentencing factor, and it does not require the court to make specific 

findings as to the factors and the weight given them.

10. Sentences: Appeal and Error. The failure of the trial court to make 

specific findings concerning the factors set forth in Neb. Rev. Stat. 

§ 29-2260 (Reissue 2008) cannot in itself be error or grounds for 

reversal.

11. Sentences. 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.

12. Sentences: Evidence. A sentencing court has broad discretion as to 

the source and type of evidence and information which may be used 

in determining the kind and extent of the punishment to be imposed, 

and evidence may be presented as to any matter that the court deems 

relevant to the sentence.

13. Rules of Evidence: Presentence Reports. Statements made by a 

defendant during a presentence investigation regarding his or her financial condition are the defendant’s own statements and would be allowable evidence against him or her under the Nebraska Evidence Rules.

14. Courts: Plea Bargains. In Nebraska, a court is never bound by the plea 

agreement made between a defendant and the government.

Appeal from the District Court for Buffalo County: Ryan C. 

Carson, Judge. Affirmed.

D. Brandon Brinegar, Deputy Buffalo County Public 

Defender, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein 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 
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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.
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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 

271⁄2 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 
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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

[1] Sentences within statutory limits will be disturbed by 

an appellate court only if the sentence complained of was an 

abuse of judicial discretion.1

[2] 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

1 State v. McBride, 27 Neb. App. 219, 927 N.W.2d 842 (2019) (petition for 

further review denied June 28, 2019).

2 Id.
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[3] 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

[4] 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

[5] 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 

3 State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019).

4 State v. McMann, 4 Neb. App. 243, 541 N.W.2d 418 (1995).

5 See Applied Underwriters v. S.E.B. Servs. of New York, 297 Neb. 246, 898 

N.W.2d 366 (2017).

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

[6,7] 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 

7 State v. St. Cyr, 26 Neb. App. 61, 916 N.W.2d 753 (2018) (petition for 

further review denied Aug. 21, 2018).

8 See State v. Mick, 19 Neb. App. 521, 808 N.W.2d 663 (2012).
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the restitution portion of a criminal sentence just as it is to any 

other part of the sentence.9

[8] 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 defendant is capable of 

paying.11 Section 29-2281 provides in full:

To determine the amount of restitution, the court may 

hold a hearing at the time of sentencing. The amount of 

restitution shall be based on the actual damages sustained 

by the victim and shall be supported by evidence which 

shall become a part of the court record. The court shall 

consider the defendant’s earning ability, employment status, financial resources, and family or other legal obligations and shall balance such considerations against the 

obligation to the victim. A person may not be granted or 

denied probation or parole either solely or primarily due 

to his or her financial resources or ability or inability to 

pay restitution. The court may order that restitution be 

made immediately, in specified installments, or within a 

specified period of time not to exceed five years after the 

date of judgment or defendant’s final release date from 

imprisonment, whichever is later. Restitution payments 

shall be made through the clerk of the court ordering restitution. The clerk shall maintain a record of all receipts 

and disbursements.

Although resititution, like any other part of the sentence, 

involves discretion, we have also held that sentencing courts 

9 State v. McMann, supra note 4.

10 See State v. Mick, supra note 8.

11 See State v. Wells, 257 Neb. 332, 598 N.W.2d 30 (1999).
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must meaningfully consider the evidence and weigh the statutory factors set forth in § 29-2281 to determine whether restitution is appropriate.12 This is similar to the court’s obligations 

to weigh the statutuory factors set forth in Neb. Rev. Stat. 

§ 29-2260 (Reissue 2008) in determining whether or not to 

impose a period of incarceration for an offender convicted of 

either a misdemeanor or a felony for which mandatory or mandatory minimum imprisonment is not specifically required. We 

thus look to case law applying § 29-2260 for guidance in our 

application of § 29-2281.

We have said that § 29-2260 is a directive to the trial 

court as to certain factors to be considered in imposing the 

sentence,13 but also that § 29-2260 does not control the trial 

court’s discretion in its conclusion reached as to the proper 

sentence to be imposed, after weighing the statutory factors.14

The specified factors must be “accorded weight,” but they are 

neither exclusive of other factors nor “controlling the discretion of the court.”15 Our review of an alleged abuse of the 

sentencing judge’s discretion in refusing to withhold imprisonment under § 29-2260 must recognize the statutory guidelines 

set out in § 29-2260 for the direction of the sentencing judge 

in imposing or withholding imprisonment,16 but the factors are 

not mathematically applied.17

[9,10] We have held, further, that § 29-2260 does not require 

the trial court to articulate on the record that it has considered 

each sentencing factor, and it does not require the court to 

make specific findings as to the factors and the weight given 

them.18 Thus, the absence of specific findings concerning the 

12 See State v. Yost, 235 Neb. 325, 455 N.W.2d 162 (1990).

13 See State v. Hunt, 214 Neb. 214, 333 N.W.2d 405 (1983).

14 See id.

15 § 29-2260(3).

16 State v. Jallen, 218 Neb. 882, 359 N.W.2d 816 (1984).

17 State v. McBride, supra note 1.

18 See State v. Hunt, supra note 13.
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factors set forth in § 29-2260 cannot in itself be error or 

grounds for reversal.19

[11] We have held that in reviewing a sentence that fails to 

withhold imprisonment, the appropriateness of the 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.20 We review a sentence that is within the statutory limits 

for an abuse of discretion by examining whether it is supported 

by the evidence.21

These same principles apply to an appeal of an order of 

restitution as part of the sentence. Section 29-2281 mandates 

that “[t]he court shall consider the defendant’s earning ability, 

employment status, financial resources, and family or other 

legal obligations,” as well as the defendant’s “obligation to the 

victim,” balancing one set of circumstances against the other. 

Though it is always good practice for district courts to provide 

a record of their reasoning, like § 29-2260, § 29-2281 does not 

require the sentencing court to specifically articulate that it has 

considered the listed statutory factors. It also does not require 

that trial courts make explicit findings as to facts pertaining to 

the statutory factors or the relative weight given to each factor. The absence of articulated findings is not in itself reversible error.

We disapprove of the Nebraska Court of Appeals’ opinions 

in State v. Mick22 and State v. St. Cyr23 to the extent that they 

suggest otherwise. We clarify here that absent evidence to the 

contrary, we presume that the sentencing court has considered the appropriate factors to be weighed before determining 

19 See id.

20 State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019).

21 See, State v. McBride, supra note 1; Neb. Rev. Stat. § 29-2308 (Reissue 

2008). See, generally, State v. Manjikian, supra note 20.

22 State v. Mick, supra note 8.

23 State v. St. Cyr, supra note 7.
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whether to order restitution. As always, the burden is on 

the appellant to show that the sentencing court has abused 

its discretion.24

Like with § 29-2260, the listed factors of § 29-2281 are neither exhaustive nor mathematically applied, and the court’s ultimate determination of whether restitution should be imposed is 

a matter of discretion that is not controlled by § 29-2281. In 

fact, by its plain language, § 29-2281 does not require that 

the defendant be able to pay as a prerequisite to an order of 

restitution—so long as the defendant is not “granted or denied 

probation or parole either solely or primarily due to his or her 

financial resources or ability or inability to pay restitution,” 

which could run afoul of due process and equal protection 

principles.25 While the factors of the defendant’s earning ability, employment status, financial resources, and family or other 

legal obligations principally implicate the extent to which 

a defendant is able to pay restitution, notably absent from 

§ 29-2281 is any indication that the court lacks discretion, 

when balancing those factors against the defendant’s obligation to the victim and other considerations, to order restitution 

as part of a sentence despite an inability to pay. Those factors 

need only be given meaningful weight. We note that in the 

federal system, certain crimes require an order of restitution 

regardless of ability to pay26 and orders of restitution have been 

held not to violate due process or equal protection despite an 

inability to pay, so long as the defendant is not later subjected 

to increased imprisonment or a period of imprisonment beyond 

the statutory maximum solely on the basis of indigency.27

24 See State v. McMann, supra note 4.

25 See Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 

(1983).

26 See 18 U.S.C. § 3663A (2012).

27 See U.S. v. Dubose, 146 F.3d 1141, 1142 (9th Cir. 1998) (upholding 

constitutionality of federal “Mandatory Victims Restitution Act” and 

§ 3663A). See, also, Annot., 20 A.L.R. Fed. 2d 239 (2007).
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Thus, even if we were to accept McCulley’s argument 

that she was, at the time of sentencing, unable to pay restitution, that would not end our inquiry. McCulley’s sentences 

presented no issue pertaining to McCulley’s being granted 

or denied probation or parole, because the court made it 

clear on the record that probation would not be ordered 

because McCulley had absconded. Under such circumstances, 

§ 29-2281 required only that McCulley’s “earning ability, 

employment status, financial resources, and family or other 

legal obligations” be “consider[ed]” and “balanc[ed]” against 

her “obligation[s] to the victim[s].” The record clearly demonstrates that the district court held a hearing in which evidence was adduced that enabled the court’s consideration 

under § 29-2281 of the statutory factors relevant to restitution. The court asked several questions of McCulley and 

her counsel concerning her employment and other financial 

resources. The court also relied on information contained 

in the PSI. This was sufficient to satisfy the mandate under 

§ 29-2281 that the court “consider” earning ability, employment status, financial resources, and family or other legal 

obligations.

[12,13] To the extent that State v. Wells28 stands for the 

proposition that the evidence pertaining to the statutory considerations must be “sworn,” we disapprove of it. A sentencing court has broad discretion as to the source and type of 

evidence and information which may be used in determining 

the kind and extent of the punishment to be imposed, and evidence may be presented as to any matter that the court deems 

relevant to the sentence.29 Furthermore, statements made by 

a defendant during a presentence investigation regarding his 

or her financial condition are the defendant’s own statements 

and would be allowable evidence against him or her under 

28 State v. Wells, supra note 11, 257 Neb. at 341, 598 N.W.2d at 37.

29 See State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).
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the Nebraska Evidence Rules.30 We find that the court complied with § 29-2281.

Once it is established that the court has meaningfully considered the evidence and weighed the statutory factors, an 

appeal attacking a sentence imposing restitution is simply an 

allegation that the sentence is excessive. A restitution order 

is reviewed for compliance with the factors from § 29-2281 

rather than § 29-2260, but the procedures for challenging and 

reviewing the sentence are the same. 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.31

[14] Because this case involved a plea agreement in which 

the defendant agreed to restitution, such an agreement is relevant to establishing whether the court abused its discretion.32

In Nebraska, a court is never bound by the plea agreement 

made between a defendant and the government.33 But in only 

the rarest instances34 do we fail to affirm a sentence that was 

contemplated by the parties’ plea agreement.35 The same is 

true when the sentence involves restitution. A judicial abuse 

of discretion exists only when the reasons or rulings of a trial 

judge are clearly untenable, unfairly depriving a litigant of a 

substantial right and denying a just result in matters submitted for disposition.36 It cannot usually be said that the trial 

30 See, Neb. Rev. Stat. § 27-801(4)(b)(i) (Reissue 2016); State v. Holecek, 

260 Neb. 976, 621 N.W.2d 100 (2000).

31 State v. McMann, supra note 4.

32 See, generally, State v. Elliott, 21 Neb. App. 962, 845 N.W.2d 612 (2014).

33 State v. Landera, 285 Neb. 243, 826 N.W.2d 570 (2013).

34 See State v. Leahy, supra note 6.

35 See, State v. Alegria, 198 Neb. 750, 255 N.W.2d 419 (1977); State v. 

Kirby, 25 Neb. App. 10, 901 N.W.2d 704 (2017); State v. Moore, 4 Neb. 

App. 564, 547 N.W.2d 159 (1996).

36 State v. Ralios, 301 Neb. 1027, 921 N.W.2d 362 (2019).
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judge’s ruling requiring restitution as part of the sentence is 

clearly untenable when the defendant has agreed as part of 

a plea agreement to the specific amount of restitution ultimately imposed.

In any event, there is no merit to McCulley’s argument 

that the court abused its discretion, because the record demonstrated that she was able to pay the restitution ordered. As 

the district court observed, although McCulley indicated she 

was currently unemployed and taking care of a sick child, 

McCulley’s unemployment was voluntary and it was likely 

that she could find gainful employment and still care for her 

children. McCulley had gainful employment prior to her flight 

to Oregon. She also has had the assistance of her mother in 

supporting and caring for her children. McCulley stated in 

the PSI that she is intending to seek part-time employment 

when she returns to Oregon. This is a situation similar to that 

presented in State v. Hosack,

37 where the defendant remained 

voluntarily unemployed to take care of his disabled parents 

and help his grandmother and we held that when a court is 

considering the required factors under § 29-2281, the court can 

give weight to the fact that a defendant’s status as unemployed 

is voluntary.

Nothing in the record before us demonstrates that McCulley 

is unable to find work and to provide appropriate care for her 

children. We also find relevant to McCulley’s ability to pay 

her representations that her mother could provide the funds to 

satisfy the order of restitution. When the court inquired as to 

the timeframe McCulley would need to repay the restitution, 

counsel indicated that it could be paid within 90 days through 

help from McCulley’s mother.

McCulley does not challenge the method and manner of 

restitution ordered as unreasonable,38 and indeed we observe 

that the court structured the repayment based on a timeframe 

37 See State v. Hosack, 12 Neb. App. 168, 668 N.W.2d 707 (2003).

38 See, State v. Wells, supra note 11; State v. Hosack, supra note 37.
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requested by McCulley. McCulley concedes that the restitution 

reflected the correct amount of the victims’ damages, which 

she had agreed to pay as part of the plea agreement. On these 

facts, we find no abuse of discretion by the court in its sentences that included ordering restitution and costs. We hold that 

the inquiry by the court into McCulley’s ability to pay satisfied 

the requirements of § 29-2281 and that the evidence in the 

PSI, McCulley’s prior plea agreement to pay restitution, and 

McCulley’s representation of her ability to pay at the sentencing hearing all provide sufficient factual support for the restitution ordered as part of the sentences. Nothing in the record 

suggests that the order of restitution was clearly untenable, 

unfairly depriving McCulley of a substantial right and denying 

a just result.

CONCLUSION

For the foregoing reasons, we hold that McCulley’s assignment of error related to excessive sentences of incarceration is 

moot. We affirm the district court’s calculation of time served 

and the order of costs and restitution as part of the sentences.

Affirmed.