Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/06/2021 01:07 AM CDT
- 981 -
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 judg-
ment 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
- 982 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. McCAIN
Cite as 29 Neb. App. 981
training, medical care, or other correctional treatment in the most effec-
tive 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 postadjudi-
catory 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 comple-
tion, 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 defend
ant 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 there-
fore, 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 distrib-
ute (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
- 983 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
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 charg-
ing 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 par-
ticipate 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 com-
plete 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; inap-
propriately 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 relat-
ing to housing and treatment, for which he served a 7-day
jail sanction.
Due to McCain’s failure to comply with the expecta-
tions of the drug court program, a hearing to terminate his
- 984 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
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 termina-
tion 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 cita-
tion 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 pro-
criminal attitude/orientation.
The PSR also indicated that McCain participated in a psy-
chological evaluation while in the drug court program. He was
diagnosed with “Other Specified Depressive Disorder Pro
visional 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 dis-
trict 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’ proba-
tion on count I, 4 years’ probation on count II, and 2 years’
probation on count III. The terms of probation were to be
- 985 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
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 lim-
its, 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 discre-
tion 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 disposi-
tion. Id.
[3] Whether a defendant is entitled to credit for time served
and in what amount are questions of law, subject to appel-
late 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 exces-
sively lenient. Possession of a controlled substance with
intent to distribute (marijuana) is a Class IIA felony punish-
able 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
- 986 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. McCAIN
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 supervi-
sion 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, there-
fore, 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 characteris-
tics 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, med-
ical 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
- 987 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. McCAIN
Cite as 29 Neb. App. 981
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 com-
mission 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 exces-
sive hardship to his or her dependents.
The State contends that McCain’s numerous violations of
the terms and conditions of the drug court program demon-
strate 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
- 988 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
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 stan-
dard 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 sub-
sequent crimes he committed involved violence. Further, his
assessment showed no violent tendencies. At the time of sen-
tencing, 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 experi-
encing 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
- 989 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. McCAIN
Cite as 29 Neb. App. 981
that he would follow terms of a probation order, we also rec-
ognize that should McCain fail on probation, the district court
will retain the ability to sentence him to a period of incarcera-
tion. 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 proba-
tion; however, when reviewing sentences for excessive leni-
ency, 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 participat-
ing 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 crimi-
nal charges.
Neb. Rev. Stat. § 47-503 (Reissue 2010) provides, in rel-
evant 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 “contem-
plates 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 violat-
ing the rules of a drug court program is incarcerated for that
- 990 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
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 post-
plea 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 sen-
tencing 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 crimi-
nal charges and participate in the drug court program, his sen-
tencing 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 pend-
ing sentencing. Therefore, because McCain’s sentencing was
- 991 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. McCAIN
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 condi-
tions 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 dis-
cretion 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.