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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. HARMS

Cite as 304 Neb. 441

State of Nebraska, appellee, v. 

Randy R. Harms, Jr., appellant.

___ N.W.2d ___

Filed November 8, 2019. No. S-18-1181.

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

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

court.

3. Sentences: Statutes. The calculation and application of credit for time 

served is controlled by statute. Different statutes govern depending on 

whether the defendant is sentenced to jail or prison.

4. Sentences. Neb. Rev. Stat. § 47-503 (Reissue 2010) is intended to 

ensure that defendants receive all the credit against their jail sentence to 

which they are entitled—no less, and no more.

5. Sentences: Prisoners: Time. When sentence is pronounced upon one 

already serving a sentence from another court, the second sentence does 

not begin to run until the sentence which the prisoner is serving has 

expired, unless the court pronouncing the second sentence specifically 

states otherwise. Thus, the applicable rule is that unless the court imposing a later independent sentence specifically states otherwise at the time 

of its pronouncement, the later sentence is to be served consecutively to 

any earlier imposed sentence or sentences.

6. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

7. 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.

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

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

Nebraska Supreme Court Online Library

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

12/13/2019 09:06 AM CST
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STATE v. HARMS

Cite as 304 Neb. 441

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.

9. 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.

10. ____. 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.

Appeal from the District Court for Seward County: James C. 

Stecker, Judge. Affirmed.

Nicole J. Tegtmeier, Seward County Public Defender, for 

appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

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

and Papik, JJ.

Stacy, J.

Randy R. Harms, Jr., was convicted of attempted possession 

of burglar’s tools, a Class I misdemeanor,1 and was sentenced 

to 1 year in jail with credit for 23 days served. Harms appeals, 

arguing his sentence was excessive and claiming he was entitled to additional jail credit. Finding no error, we affirm.

FACTS

2015 Convictions in Dawson County

In 2015, Harms was convicted of multiple felony and misdemeanor charges in Dawson County, Nebraska, and was 

1 See Neb. Rev. Stat. §§ 28-201 and 28-508 (Reissue 2016).
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STATE v. HARMS

Cite as 304 Neb. 441

sentenced to a total of 40 to 120 months in the custody of the 

Nebraska Department of Correctional Services (DCS). Harms 

was released on parole in March 2018.

2018 Conviction in Seward County

Approximately 2 months later, on May 28, 2018, Harms was 

arrested in Seward County, Nebraska, and charged with one 

count of possession of burglar’s tools, a Class IV felony.2 He 

was lodged in the Seward County jail, and his bond was set at 

“$10,000—10%.”

A few weeks later, Harms sent a jail “kite” form to the 

district court asking to “put in for a PR Bond.” Harms stated 

that his parole had been revoked and that he wanted to return 

to DCS custody, where he felt his access to medications and 

medical treatment would be better than in the Seward County 

jail. After a hearing on June 20, 2018, Harms was allowed to 

swear to a personal recognizance bond and was released from 

the Seward County jail directly into DCS custody.

Harms ultimately pled no contest to attempted possession 

of burglar’s tools, a Class I misdemeanor.3 On November 

19, 2018, he was sentenced to 1 year in the Seward County 

jail and was ordered to pay $2,000 in restitution upon his 

release. Harms was given credit for 23 days served. Harms 

asked the court to give him additional credit against his jail 

sentence for the 150 days he spent in DCS custody after he 

was released on bond from the Seward County jail. The court 

denied his request.

Harms filed this timely appeal, which we moved to our 

docket on our own motion.

ASSIGNMENTS OF ERROR

Harms assigns, restated, that the district court erred by (1) 

awarding him insufficient credit for time served against his jail 

sentence and (2) imposing an excessive jail sentence.

2 § 28-508.

3 See §§ 28-201 and 28-508.
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STATE v. HARMS

Cite as 304 Neb. 441

STANDARD OF REVIEW

[1] Whether a defendant is entitled to credit for time served 

and in what amount are questions of law.4 An appellate court 

reviews questions of law independently of the lower court.5

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

within the statutory limits absent an abuse of discretion by the 

trial court.6

ANALYSIS

Credit for Time Served

Harms contends the district court erred in granting him only 

23 days of credit against his 1-year jail sentence. He argues he 

should have been given credit for 173 days—a figure he arrives 

at by adding together the 23 days he spent in the Seward 

County jail and the 150 days he spent in the custody of DCS 

before being sentenced in the instant case.

[3] In Nebraska, the calculation and application of credit for 

time served is controlled by statute.7 Different statutes govern 

depending on whether the defendant is sentenced to jail or 

prison.8 Neb. Rev. Stat. § 47-503 (Reissue 2010) governs the 

credit to be given against a city or county jail sentence and 

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:

(a) Prior to trial;

(b) During trial;

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

5 State v. Hunnel, 290 Neb. 1039, 863 N.W.2d 442 (2015).

6 State v. Steele, 300 Neb. 617, 915 N.W.2d 560 (2018).

7 State v. Bree, 285 Neb. 520, 827 N.W.2d 497 (2013).

8 See id.
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STATE v. HARMS

Cite as 304 Neb. 441

(c) Pending sentence;

(d) Pending resolution of an appeal; and

(e) Prior to delivery of such person to the county board 

of corrections or, in counties which do not have a county 

board of corrections, the county sheriff.

A different statute, Neb. Rev. Stat. § 83-1,106 (Reissue 

2014), governs the credit to be given against a prison sentence 

ordered to be served in the custody of DCS. The statutes are 

similar in many respects, but because Harms was sentenced to 

a term of imprisonment in the county jail, and not DCS, the 

credit to which Harms is entitled is governed by § 47-503, not 

§ 83-1,106.

Section 47-503(1) authorizes credit 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.” Here, the record confirms Harms spent a total of 23 

days in jail on the criminal charge of possession of burglar’s 

tools. The sentencing court gave Harms credit for those 23 

days, but Harms contends he was entitled to more.

He asserts that after bonding out of jail on the Seward 

County charge, he returned immediately to DCS custody on the 

parole violation. He argues his parole on the Dawson County 

sentences was revoked “as a result of” the conduct upon which 

the Seward County charges were based, and he contends he is 

thus entitled to receive credit against his 1-year jail sentence 

for the time he spent in DCS custody. We disagree.

After Harms bonded out of jail on the Seward County charge 

of possession of burglar’s tools, he was no longer “in jail as a 

result of the criminal charge for which the jail term [was] 

imposed or as a result of conduct upon which such charge 

[was] based.” He was, instead, in DCS custody completing felony sentences on different convictions out of Dawson County. 

It may be true that his parole on the Dawson County sentences 

was revoked because his criminal conduct in Seward County 

also amounted to a violation of his parole, but Harms was in 

DCS custody on the Dawson County sentences, and he was 
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STATE v. HARMS

Cite as 304 Neb. 441

receiving credit against those sentences. Section 47-503 does 

not authorize presentence credit against a jail sentence for time 

spent in DCS custody serving a separate sentence.9

[4] Section 47-503 is intended to ensure that defendants 

receive all the credit against their jail sentence to which they 

are entitled—no less, and no more.10 By giving Harms credit 

for the 23 days he spent in jail as a pretrial detainee on the 

Seward County charge, the sentencing court gave Harms all the 

jail credit to which he was entitled under § 47-503.

Further, we note that if Harms were given credit against 

both his DCS sentence and his jail sentence for the 150 days 

he spent in DCS custody, the result would be that some of 

his jail sentence on the Seward County conviction would be 

served concurrently with his prison sentences on the Dawson 

County convictions. But the sentencing court did not order 

the jail sentence to be served concurrently with any portion 

of the prison sentences Harms was already serving out of 

Dawson County.

[5] “‘When sentence is pronounced upon one already serving a sentence from another court, the second sentence does 

not begin to run until the sentence which the prisoner is serving 

has expired, unless the court pronouncing the second sentence 

specifically states otherwise.’”11 Thus, the applicable rule is 

that unless the court imposing a later independent sentence 

specifically states otherwise at the time of its pronouncement, 

the later sentence is to be served consecutively to any earlier 

imposed sentence or sentences.12 For the sake of completeness, 

9 Accord State v. Leahy, 301 Neb. 228, 234-35, 917 N.W.2d 895, 900 (2018) 

(recognizing that “if a defendant is serving a sentence on a 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”).

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

11 State v. McNerny, 239 Neb. 887, 889, 479 N.W.2d 454, 456 (1992), 

quoting Harpster v. Benson, 216 Neb. 776, 345 N.W.2d 335 (1984). 

12 McNerny, supra note 11.
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Cite as 304 Neb. 441

we point out the rule is otherwise where multiple sentences 

are imposed at the same time. In such event, unless the court 

specifically states otherwise at the time the sentences are pronounced, they run concurrently with each other.13

Here, the district court sentenced Harms while he was still 

serving the prison sentences on his Dawson County convictions. Because the district court did not specifically state 

that Harms’ jail sentence was to be served concurrently with 

his earlier prison sentences, it must be served consecutively. 

Harms may not use the jail credit statutes to accomplish indirectly what the district court did not order specifically.

Sentence Not Excessive

Attempted possession of burglar’s tools is a Class I 

misdemeanor,14 punishable by a maximum of 1 year’s imprisonment, a $1,000 fine, or both.15 Harms’ 1-year jail sentence 

was thus within the statutory limits.

[6,7] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court.16 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.17

Harms argues the district court abused its discretion, 

because “a thorough examination of the record regarding the 

circumstances and background of [his] life fails to establish 

a basis” for imposing the maximum allowable sentence.18 We 

disagree.

13 State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014); McNerny, supra

note 11.

14 §§ 28-201 and 28-508.

15 Neb. Rev. Stat. § 28-106 (Reissue 2016).

16 Steele, supra note 6.

17 State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011).

18 Brief for appellant at 15.
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STATE v. HARMS

Cite as 304 Neb. 441

When sentencing Harms, the court referenced his extensive 

criminal history, the circumstances of his crime, and his high 

risk to reoffend:

I have reviewed the presentence investigation report. 

You’re 41 years of age. You have a GED. At the current 

time, you have no employment due to your incarceration, 

other than the employment within the facility.

You have an extensive prior record, including four 

DUIs, four assaults, two possession of controlled substances, four driving under revocation or driving under 

suspension, two criminal mischief, one terroristic threat, 

one violation of a protection order, theft. You’ve been to 

prison three times and to jail at least ten times.

Your LS/CMI indicates a high risk to re-offend. The 

nature of this offense involved you being present where 

wire was stolen from a pivot, and there’s over $35,000 in 

damage that was caused.

The Court does not understand how you can claim to 

have no responsibility for what occurred when you’re out 

there at the point where these thefts were taking place. 

Why would you be out there with burglar’s tools if you 

weren’t participating?

The Court does not find that you’re a fit candidate for 

probation. A lesser sentence would depreciate the seriousness of your crime or promote disrespect for the law. 

There is a substantial risk that during a period of probation you would engage in additional criminal conduct.

For the conviction of attempted possession of burglar’s 

tools, a Class I misdemeanor, you’re sentenced to one 

year in the Seward County Jail.

[8-10] 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 
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STATE v. HARMS

Cite as 304 Neb. 441

imposed.19 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.20 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.21

Here, the record demonstrates the court considered all of the 

relevant sentencing factors and clearly articulated its rationale 

for imposing the 1-year jail sentence. We find no abuse of discretion in the sentence imposed.

CONCLUSION

For the foregoing reasons, the judgment and sentence of the 

district court is affirmed.

Affirmed.

Freudenberg, J., not participating.

19 State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).

20 Id.

21 Id.