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Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. McCAIN

Cite as 29 Neb. App. 981

State of Nebraska, appellant, v. 

Devontay S. McCain, appellee.

___ N.W.2d ___

Filed June 15, 2021. No. A-20-662.

1. Sentences: Appeal and Error. When reviewing a sentence within the 

statutory limits, whether for leniency or excessiveness, an appellate 

court reviews for an abuse of discretion.

2. Judges: Words and Phrases. 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.

3. Sentences: Probation and Parole: 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.

4. Sentences. A sentencing court is not limited in its discretion to any 

mathematically applied set of factors.

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. ____. A sentencing court must have some reasonable factual basis for 

imposing a particular sentence.

7. Sentences: Appeal and Error. In determining whether a sentence is 

excessively lenient, an appellate court considers the following factors: 

(1) the nature and circumstances of the offense; (2) the history and 

characteristics of the defendant; (3) the need for the sentence imposed 

to afford deterrence; (4) the need for the sentence to protect the public 

from further crimes of the defendant; (5) the need for the sentence to 

reflect the seriousness of the offense, to promote respect for the law, 

and to provide just punishment for the offense; (6) the need for the 

sentence to provide the defendant with needed educational or vocational 

Nebraska Supreme Court Online Library

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

06/22/2021 08:08 AM CDT
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STATE v. McCAIN

Cite as 29 Neb. App. 981

training, medical care, or other correctional treatment in the most effective manner; and (7) any other matters appearing in the record that the 

appellate court deems pertinent.

8. Courts: Words and Phrases. Drug court is a postplea or postadjudicatory drug and alcohol intensive supervision treatment program for 

eligible offenders.

9. Courts: Pleas. A drug court program participant pleads guilty and 

agrees to the terms and conditions of the program in exchange for the 

possibility of avoiding sentencing and, oftentimes, being allowed to 

withdraw the plea upon successful completion of the program.

10. Courts: Convictions: Sentences. If a drug court program participant is 

terminated from the program or withdraws before successful completion, then the conviction stands and the case is transferred back to the 

original court for sentencing.

11. ____: ____: ____. When sentencing is deferred during the time a defendant is participating in a drug court program, the time he or she spent 

in jail is pending sentencing pursuant to Neb. Rev. Stat. § 47-503(1) 

(Reissue 2010).

12. ____: ____: ____. Time spent in jail for sanctions while participating in 

a drug court program is a result of the underlying offenses, and therefore, credit for time served is appropriate.

Appeal from the District Court for Buffalo County: John H. 

Marsh, Judge. Affirmed.

Shawn R. Eatherton, Buffalo County Attorney, and Kari R. 

Fisk for appellant.

Jerad A. Murphy, Deputy Buffalo County Public Defender, 

for appellee.

Pirtle, Chief Judge, and Arterburn and Welch, Judges.

Pirtle, Chief Judge.

INTRODUCTION

The State, through the Buffalo County Attorney, appeals 

from a district court order sentencing Devontay S. McCain 

for possession of a controlled substance with intent to distribute (marijuana), prohibited acts, and possession of a controlled 

substance (marijuana, over 1 ounce, less than 1 pound). The 

State argues that the sentences are excessively lenient and 
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STATE v. McCAIN

Cite as 29 Neb. App. 981

that the court erred in giving McCain credit for time served. 

Based on the reasons that follow, we affirm.

BACKGROUND

On August 14, 2019, the State filed an information charging McCain with count I, possession of a controlled substance 

with intent to distribute (marijuana), a Class IIA felony; count 

II, prohibited acts, a Class IV felony; and count III, possession 

of a controlled substance (marijuana, over 1 ounce, less than 1 

pound), a Class III misdemeanor.

On November 21, 2019, McCain pled guilty to the three 

charges on the condition that he would be allowed to participate in a drug court program. The court accepted his pleas, 

entered judgments of conviction, and ordered him to comply 

with all requirements of the drug court program. If McCain 

successfully completed the drug court program, he would be 

allowed to withdraw his plea. If he failed to successfully complete the program, he would be returned to the district court 

for sentencing.

While participating in the drug court program, McCain was 

consistently noncompliant. McCain’s misconduct included: 

missing a drug test within his first week of participation, for 

which he served a 3-day jail sanction; missing a drug test a 

week later, for which he served a 5-day jail sanction; inappropriately and disrespectfully “watching Netflix during NA 

meetings,” for which he served a 2-day jail sanction; failing 

to report a new law violation, for which he served a 2-day jail 

sanction; violating no-contact terms of his drug court contract 

by having contact with an unauthorized juvenile, for which he 

served a 7-day jail sanction; having continued unauthorized 

contact with the same individual while serving the sanction 

for violation of the no-contact provisions, for which he served 

a 14-day jail sanction; and defying the court’s orders relating to housing and treatment, for which he served a 7-day 

jail sanction.

Due to McCain’s failure to comply with the expectations of the drug court program, a hearing to terminate his 
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STATE v. McCAIN

Cite as 29 Neb. App. 981

participation was scheduled for June 12, 2020. At the time of 

the termination hearing, McCain voluntarily withdrew from 

the drug court program, waiving his right to a formal termination hearing.

After McCain withdrew from the drug court program, a 

presentence investigation report (PSR) was ordered. The PSR 

shows that McCain’s criminal history included only a citation for speeding, but he committed two additional offenses 

during his time in the drug court program: contributing to the 

delinquency of a minor and leaving the scene of an accident. 

McCain was assessed as at a high risk to reoffend. He was also 

assessed as very high or high risk in the following domains: 

leisure/recreation, companions, alcohol/drug problem, and procriminal attitude/orientation.

The PSR also indicated that McCain participated in a psychological evaluation while in the drug court program. He was 

diagnosed with “Other Specified Depressive Disorder Provisional Major Depressive Disorder, Cannabis Use Disorder, 

Moderate, in early or sustained remission, and Other Specified 

Trauma-and Stressor-Related Disorder.” It was recommended 

that he participate in outpatient counseling. He was attending 

counseling at the time the PSR was prepared.

A sentencing hearing followed. McCain was 19 years old 

at the time of sentencing, and he was 18 years old at the time 

the offenses at issue were committed. At the hearing, the district court stated that McCain’s drug court participation was 

“perplexing and frustrating” and that McCain had a “complete 

lack of motivation to do anything.” It stated that McCain came 

up with “excuse after excuse” on why he could not get a job. 

The court further stated that it was going to give McCain the 

“benefit of the doubt that maybe [his] mental health issues 

made [him] somebody that was not appropriate for Drug Court 

to begin with.” It stated that it was “reluctant to send [him] to 

prison at 19.” The court sentenced McCain to 4 years’ probation on count I, 4 years’ probation on count II, and 2 years’ 

probation on count III. The terms of probation were to be 
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STATE v. McCAIN

Cite as 29 Neb. App. 981

served concurrently. It also sentenced McCain to 90 days in 

jail on count I. In calculating credit for time served, the district 

court stated that it showed “credit for 48 days . . . giving you 

credit for the sanctions you served in Drug Court.” The State 

objected to the inclusion of drug court sanctions as credit for 

time served.

ASSIGNMENTS OF ERROR

The State assigns that the trial court erred in (1) imposing 

excessively lenient sentences and (2) granting McCain credit 

for time served for drug court sanctions.

STANDARD OF REVIEW

[1,2] When reviewing a sentence within the statutory limits, whether for leniency or excessiveness, an appellate court 

reviews for an abuse of discretion. State v. Felix, 26 Neb. 

App. 53, 916 N.W.2d 604 (2018). 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. Id.

[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. State v. Galvan, 

305 Neb. 513, 941 N.W.2d 183 (2020), modified on denial of 

rehearing 306 Neb. 498, 945 N.W.2d 888.

ANALYSIS

Excessively Lenient Sentences.

The State first assigns that McCain’s sentences are excessively lenient. Possession of a controlled substance with 

intent to distribute (marijuana) is a Class IIA felony punishable by 0 to 20 years’ imprisonment. See, Neb. Rev. Stat. 

§ 28-416(1)(a) (Cum. Supp. 2020); Neb. Rev. Stat. § 28-105 

(Cum. Supp. 2018). Prohibited acts, a crime that involved 

McCain’s utilizing money to obtain a controlled substance 

or to facilitate the manufacture, distribution, or delivery of a 
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Cite as 29 Neb. App. 981

controlled substance, is a Class IV felony punishable by 0 to 

2 years’ imprisonment, 0 to 12 months’ postrelease supervision if imprisonment is imposed, a $10,000 fine, or both. See, 

§ 28-416(17); § 28-105. Possession of a controlled substance 

(marijuana, over 1 ounce, less than 1 pound) is a Class III 

misdemeanor punishable by up to 3 months’ imprisonment, a 

$500 fine, or both. See, § 28-416(11); Neb. Rev. Stat. § 28-106 

(Reissue 2016). McCain was sentenced to 4 years’ probation 

on both count I and count II, as well as 2 years’ probation on 

count III. He was also sentenced to 90 days in jail on count I. 

McCain’s sentences are within the statutory limits and, therefore, will not be disturbed absent an abuse of discretion.

[4-6] A sentencing court is not limited in its discretion to 

any mathematically applied set of factors. State v. Felix, supra.

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. Id. But the 

court must have some reasonable factual basis for imposing a 

particular sentence. Id.

[7] In determining whether the sentence is excessively 

lenient, we consider the following factors: (1) the nature and 

circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence imposed 

to afford deterrence; (4) the need for the sentence to protect 

the public from further crimes of the defendant; (5) the need 

for the sentence to reflect the seriousness of the offense, to 

promote respect for the law, and to provide just punishment 

for the offense; (6) the need for the sentence to provide the 

defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective 

manner; and (7) any other matters appearing in the record that 

the appellate court deems pertinent. Id. See Neb. Rev. Stat. 

§ 29-2322 (Reissue 2016).

Neb. Rev. Stat. § 29-2260(2) (Reissue 2016) gives the 

court discretion to withhold a sentence of imprisonment for 
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an offender convicted of either a misdemeanor or a felony for 

which mandatory or mandatory minimum imprisonment is not 

specifically required. Subsection (3) of § 29-2260 provides 

that the following grounds, while not controlling the discretion 

of the court, shall be accorded weight in favor of withholding 

sentence of imprisonment:

(a) The crime neither caused nor threatened serious 

harm;

(b) The offender did not contemplate that his or her 

crime would cause or threaten serious harm;

(c) The offender acted under strong provocation;

(d) Substantial grounds were present tending to excuse 

or justify the crime, though failing to establish a defense;

(e) The victim of the crime induced or facilitated commission of the crime;

(f) The offender has compensated or will compensate 

the victim of his or her crime for the damage or injury the 

victim sustained;

(g) The offender has no history of prior delinquency 

or criminal activity and has led a law-abiding life for 

a substantial period of time before the commission of 

the crime;

(h) The crime was the result of circumstances unlikely 

to recur;

(i) The character and attitudes of the offender indicate 

that he or she is unlikely to commit another crime;

(j) The offender is likely to respond affirmatively to 

probationary treatment; and

(k) Imprisonment of the offender would entail excessive hardship to his or her dependents.

The State contends that McCain’s numerous violations of 

the terms and conditions of the drug court program demonstrate that he is not a good candidate for probation. It argues 

that because McCain did not comply with requirements of the 

drug court program, he will not comply with the requirements 

of probation. The State also notes that the PSR showed that 
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STATE v. McCAIN

Cite as 29 Neb. App. 981

McCain was highly likely to reoffend. In addition, the State 

claims that in sentencing McCain, the court focused primarily 

on his young age, it did not undergo an analysis of the proper 

sentencing factors, and the sentences it imposed contradicted 

the statements it made prior to sentencing. The State further 

contends that the sentences promote disrespect for the law as 

they undermine the value of the drug court program.

At first blush, it does appear that McCain’s sentences 

are lenient. He was sentenced to probation on two felonies 

and one misdemeanor after failing to meet the conditions of 

the drug court program. However, keeping in mind our standard of review and considering the applicable case law, we 

cannot find that the court abused its discretion in the sentences 

it imposed.

McCain was 19 years old at the time of sentencing, and his 

criminal history prior to these offenses consisted of a speeding 

ticket. Although the PSR showed McCain was assessed as at a 

high risk to reoffend, neither of the crimes at issue nor the subsequent crimes he committed involved violence. Further, his 

assessment showed no violent tendencies. At the time of sentencing, he was taking online college classes and living with 

his mother. Both McCain and his counsel stated that McCain 

had obtained a job and was set to start the following week. His 

psychological evaluation recommended that he continue living 

at home with his mother to help him build relationships with 

providers and supporters and to deal with his mental health 

and psychological issues. He had been diagnosed with “Other 

Specified Depressive Disorder Provisional Major Depressive 

Disorder, Cannabis Use Disorder, Moderate, in early or sustained 

remission, and Other Specified Trauma-and Stressor-Related 

Disorder.” The evaluation also stated that he may be experiencing other psychiatric symptoms. It was recommended that 

he participate in outpatient counseling. He was participating in 

counseling at the time the PSR was prepared.

While we understand the State’s argument that McCain’s 

past performance in drug court would seem to make it unlikely 
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STATE v. McCAIN

Cite as 29 Neb. App. 981

that he would follow terms of a probation order, we also recognize that should McCain fail on probation, the district court 

will retain the ability to sentence him to a period of incarceration. Therefore, should the State’s prediction come to fruition, 

McCain will still be subject to yet further sentencing.

We recognize that McCain’s lack of success in drug court 

could have supported a term of incarceration rather than probation; however, when reviewing sentences for excessive leniency, we do not review the sentence de novo and the standard 

is not what sentence we would have imposed. See State v. 

Felix, 26 Neb. App. 53, 916 N.W.2d 604 (2018). Keeping this 

standard in mind, we conclude that the sentences imposed do 

not constitute an abuse of discretion.

Credit for Time Served.

The State next assigns that the court erred in giving McCain 

credit for the jail time sanctions he served while participating in the drug court program. As previously stated, the court 

sentenced McCain to 90 days in jail on count I and gave him 

48 days of credit for the sanctions he served. The State argues 

that McCain’s periods of incarceration while in the program 

were not a result of the criminal charges, but, rather, were 

for conduct separate and distinct from the underlying criminal charges.

Neb. Rev. Stat. § 47-503 (Reissue 2010) provides, in relevant part, that credit against a jail term shall be given to 

any person sentenced to a 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, to include: pretrial, during trial, pending sentencing, 

and pending appeal. The State argues that § 47-503 “contemplates credit only for conduct related to the underlying offense, 

not sanctions for violations relating to a defendant’s voluntary 

participation in a treatment program.” Brief for appellant at 

13. It further contends that a defendant sanctioned for violating the rules of a drug court program is incarcerated for that 
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STATE v. McCAIN

Cite as 29 Neb. App. 981

conduct, not for the conduct of the underlying offense. The 

State cites to State v. Hutton, 218 Neb. 420, 355 N.W.2d 518 

(1984), in support of its argument that McCain is not entitled 

to credit for time served. The Hutton case held that credit for 

time served in a voluntary alcohol treatment program was not 

appropriately applied to a term of incarceration relating to a 

criminal charge.

McCain claims that Hutton is not applicable, as it relates to 

a defendant’s spending time in a voluntary treatment facility as 

opposed to this case, where he served time in jail. We agree. 

Spending time in a treatment facility and spending time in jail 

are not the same, and § 47-503 specifically refers to credit for 

time spent in jail.

[8-10] The time periods McCain spent in jail were imposed 

for violations of the drug court program. Drug court is a postplea or postadjudicatory drug and alcohol intensive supervision 

treatment program for eligible offenders. State v. Workman, 22 

Neb. App. 223, 857 N.W.2d 349 (2014). See State v. Shambley, 

281 Neb. 317, 795 N.W.2d 884 (2011). A drug court program 

participant pleads guilty and agrees to the terms and conditions 

of the program in exchange for the possibility of avoiding sentencing and, oftentimes, being allowed to withdraw the plea 

upon successful completion of the program. State v. Shambley, 

supra; State v. Workman, supra. If the participant is terminated 

from the program or withdraws before successful completion, 

then the conviction stands and the case is transferred back to 

the original court for sentencing. Id.

[11] When McCain agreed to plead guilty to the three criminal charges and participate in the drug court program, his sentencing for those crimes was deferred. Had he completed the 

program, he would have been allowed to withdraw his pleas 

and the case would have been dismissed. However, because he 

withdrew from the program before completion, the case went 

back to the district court for sentencing. Section 47-503(1) 

provides that credit shall be given for time spent in jail pending sentencing. Therefore, because McCain’s sentencing was 
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Cite as 29 Neb. App. 981

deferred during the time he was participating in the drug court 

program, the time he spent in jail was pending sentencing.

The State argues, however, that McCain was incarcerated 

for conduct separate and distinct from the underlying criminal 

charges and that thus, his time spent in jail was not a result 

of the criminal charges. We disagree. McCain was in the drug 

court program because of the criminal charges. Although he 

spent time in jail for failing to comply with terms and conditions of the drug court program, the jail time was still related 

to the underlying charges. In other words, McCain was in the 

drug court program because of the criminal charges, and he 

would not have been in jail if not for the underlying charges. 

And again, the jail time was served prior to sentencing for the 

charges he pled guilty to.

[12] We conclude that the time McCain spent in jail while 

he was enrolled in the drug court program was a result of the 

underlying offenses, and that therefore, the credit for time 

served was appropriate.

CONCLUSION

We conclude that the district court did not abuse its discretion in the sentences it imposed and did not err in giving 

McCain credit for jail time he served while participating in the 

drug court program.

Affirmed.