State v. Wills

260 	285 NEBRASKA REPORTS
the prosecution’s failure to reserve the right to seek conditions
of probation created an ambiguity that should be construed
against the State.
Most important, the facts show that the prosecution did
not intend to reserve the right to recommend incarceration
as a condition of probation when Landera entered his plea.
Instead, the State had a change of heart after the court ordered
Landera’s sex offender evaluation. But that is exactly the kind
of government conduct that the Due Process Clause prohibits.
I believe that the majority opinion will raise serious consti-
tutional questions whether a defendant has voluntarily and
knowingly entered a plea of guilty, particularly if the court did
not advise the defendant that it could confine him or her to a
longer period in jail than what the defendant had agreed to in
a plea agreement.7
MccorMack, J., joins in this concurrence.
7 See State v. Cutler, 121 Ariz. 328, 590 P.2d 444 (1979).
State of NebraSka, appellee, v.
M icheal c. WillS, appellaNt.
826 N.W.2d 581
Filed February 22, 2013. 	Nos. S-11-1026, S-12-415.
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 ques-
tions 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. Credit for time served should be taken into account so that the effec-
tive sentence is within the statutory limits.
4. ____. With consecutive sentences, periods of presentence incarceration are cred-
ited against the aggregate of all terms imposed. With concurrent sentences,
such periods are credited against the longest sentence, but are, in effect, applied
against all the sentences.
5. Sentences: Probation and Parole: Appeal and Error. It is within the discretion
of the trial court whether to impose probation or incarceration, and an appel-
late court will uphold the court’s decision denying probation absent an abuse
of discretion.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

STATE v. WILLS 	261
Cite as 285 Neb. 260
Appeals from the District Court for Lancaster County: Jeffre
cheuvroNt and StephaNie f. Stacy, Judges. Affirmed in part,
and in part reversed and remanded.
Dennis R. Keefe, Lancaster County Public Defender, and
Shawn Elliott for appellant.
Jon Bruning, Attorney General, George R. Love, and Dain J.
Johnson, Senior Certified Law Student, for appellee.
heavicaN, c.J., Wright, coNNolly, StephaN, MccorMack,
and M iller-lerMaN, JJ.
coNNolly, J.
In these consolidated cases, the primary issue presented is
how to properly credit a defendant with time served because
of two separate criminal cases, in which two different judges
sentenced the defendant at different times.
BACKGROUND
A timeline of events is necessary to set the stage for this
appeal. On March 26, 2010, law enforcement arrested and
jailed Micheal C. Wills for fleeing from law enforcement and
leaving the scene of an injury accident (case No. S-12-415).
Wills remained in jail until April 2, when the district court
apparently released him on bond.
On May 28, 2010, law enforcement again arrested and jailed
Wills, but on an unrelated charge of child abuse resulting in
death (case No. S-11-1026). Wills apparently was unable to
post bond in case No. S-11-1026. Presumably because Wills
was already in jail, on June 3, Wills surrendered on his bond in
case No. S-12-415. So at that point, Wills was in jail because
of both cases.
On October 14, 2011, in case No. S-11-1026, a jury con-
victed Wills of the lesser crime of negligent child abuse, a
Class I misdemeanor.1 That same day, the court released Wills
on bond, though he remained in jail because he had previously
1 See Neb. Rev. Stat. § 28-707 (Reissue 2008).

262 	285 NEBRASKA REPORTS
surrendered on his bond in case No. S-12-415. On October 17,
2011, however, the court reinstated Wills’ bond in case No.
S-12-415 and Wills was released from jail.
In sum, the record shows that Wills was in jail solely
because of case No. S-11-1026 from May 28 through June 2,
2010, a total of 6 days. The record shows that Wills was in jail
solely because of case No. S-12-415 from March 26 through
April 2, 2010, and from October 14 through 16, 2011, a total
of 11 days. Finally, the record shows that Wills was in jail
because of both cases from June 3, 2010, through October 13,
2011, a total of 498 days.
On November 2, 2011, in case No. S-11-1026, the court
sentenced Wills to 1 year in jail, with credit for 504 days
already served, which included all 498 days spent in jail on
both cases. On January 24, 2012, in case No. S-12-415, Wills
pleaded guilty to operating a motor vehicle to avoid arrest,
a Class I misdemeanor,2 and leaving the scene of an injury
accident, a Class IIIA felony.3 On April 18, a different judge
of the court sentenced Wills to 2 to 4 years in prison, with
credit for 11 days served. The court did not give Wills credit
for any remaining days from the 498 days credited toward his
earlier 1-year sentence. The court also revoked his operator’s
license for 5 years and ordered him not to drive any vehicle
for 5 years.
This appeal involves the proper way to credit Wills for the
498 days he spent in jail on both cases.
ASSIGNMENTS OF ERROR
Wills assigns, restated and consolidated, that the district
court erred in:
(1) applying all 498 days of credit for time served toward his
1-year sentence in case No. S-11-1026, thereby preventing the
court from applying some of that time toward his sentence in
case No. S-12-415; and
(2) imposing excessive sentences in case No. S-12-415.
2 See Neb. Rev. Stat. § 28-905 (Reissue 2008).
3 See Neb. Rev. Stat. §§ 60-697 and 60-698 (Reissue 2010).

STATE v. WILLS 	263
Cite as 285 Neb. 260
STANDARD OF REVIEW
Our standard for reviewing a district court’s calculation
and application of credit for time served is a bit unclear.
For example, in State v. Torres,4 the sole assigned error was
that the court erred in failing “to credit [the defendant] for
time served in jail while awaiting trial and sentence.”5 We
first noted that we would not disturb a sentence within statu-
tory limits unless the court had abused its discretion.6 But
we noted that interpretation of a statute presented a ques-
tion of law, which we would review independently of the
lower court.7 In more recent cases, however, we have noted
that interpretation of a statute is a question of law and that
“[w]hether a defendant is entitled to credit for time served is
also a question of law.”8
[1] The latter approach is correct. No part of crediting time
served requires a court to exercise its discretion, so we do not
review the court’s findings for abuse of discretion. We made
this clear in State v. Clark9:
[T]he credit for time served to which a defendant is
entitled is an absolute and objective number that is estab-
lished by the record. Therefore, the exact credit for time
served to which a defendant is entitled is objective and
not discretionary. The court has no discretion to grant
the defendant more or less credit than is established by
the record.
So, we clarify that whether a defendant is entitled to credit
for time served and in what amount are questions of law. We
review questions of law independently of the lower court.10
[2] The standard for reviewing an excessive sentence claim
is well established: We will not disturb a sentence imposed
4 State v. Torres, 256 Neb. 380, 590 N.W.2d 184 (1999).
5 Id. at 382, 590 N.W.2d at 185.
6 See id.
7 See id.
8 State v. Becker, 282 Neb. 449, 451, 804 N.W.2d 27, 29 (2011).
9 State v. Clark, 278 Neb. 557, 562, 772 N.W.2d 559, 563 (2009).
10 See, e.g., State v. Watkins, 284 Neb. 742, 825 N.W.2d 403 (2012).

264 	285 NEBRASKA REPORTS
within the statutory limits absent an abuse of discretion by the
trial court.11
ANALYSIS
credit for tiMe Served
Wills takes issue with the court’s crediting of his time
served. The record shows that 498 days of Wills’ presentence
confinement qualified as credit in either case. Wills asserts that
the sentencing judge in case No. S-11-1026 erred in crediting
all 498 days to his 1-year sentence and that the sentencing
judge in case No. S-12-415 erred in failing to credit him with
the would-be remaining time. The State argues that the first
sentencing judge had no discretion to enter an amount other
than Wills’ total credit for time served, which included all 498
days. And the State argues that once the first sentencing judge
credited all the time to the first sentence, the second sentencing
judge could not grant credit for the same time, because time
served may be credited only once.
The calculation and application of credit for time served are
controlled by statute. Different statutes address credit for time
served based on whether the defendant is sentenced to jail or
prison.12 But those provisions are similar,13 and the reasoning
of cases involving either provision is applicable here. This
case hinges on the court’s credit for time served in case No.
S-11-1026, involving a jail sentence, so we look to § 47-503. It
provides, in relevant part:
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.
Wills argues that the court in case No. S-11-1026 erred
in applying all 498 days of credit to his 1-year sentence. He
11 See, e.g., State v. Pereira, 284 Neb. 982, 824 N.W.2d 706 (2013).
12 See Neb. Rev. Stat. §§ 47-503 (Reissue 2010) and 83-1,106 (Reissue
2008).
13 Compare § 47-503 with § 83-1,106(1).

STATE v. WILLS 	265
Cite as 285 Neb. 260
argues that the court should have applied only the amount of
credit necessary to satisfy his sentence, which after good time
reduction, he alleged was 190 days. Wills argues that the court
was aware of his pending case in case No. S-12-415 and that
if the court’s crediting all 498 days “truly exhausted” Wills’
credit, then Wills essentially served a sentence in excess of the
statutory maximum.14
We have not found any factually comparable cases in
Nebraska or in other jurisdictions. The answer is not obvious.
But certain principles of law are relevant. It is clear that Wills
was entitled to credit for time spent in jail before sentencing.15
It is also clear that Wills was entitled to good time reduction
for time spent in jail before sentencing.16 And credit for time
served may be applied only once.17
We conclude that the court erred in crediting all 498 days to
Wills’ 1-year sentence. Section 47-503 provides that a defend-
ant is entitled to “[c]redit against” his jail term. In this con-
text, “credit” is best defined as “a deduction from an amount
otherwise due.”18 Unlike a bank account, a defendant cannot
go below zero in terms of days left on a prison sentence. So
the judge could not “credit” Wills with more time served than
the length of his sentence. Moreover, in this context, “against”
is best defined as “in exchange for,” “in return for,” “as a
charge upon,” or “to the debit of.”19 Section 47-503 grants
credit for time served on a 1-to-1 ratio—so the court could not
grant credit “against” Wills’ jail term in excess of the length
of the sentence.
14 Brief for appellant at 18.
15 See § 47-503.
16 See, 2010 Neb. Laws, L.B. 712, § 40; Neb. Rev. Stat. § 47-502 (Reissue
2010); State v. Atkins, 250 Neb. 315, 549 N.W.2d 159 (1996); Williams v.
Hjorth, 230 Neb. 97, 430 N.W.2d 52 (1988).
17 See, e.g., State v. Banes, 268 Neb. 805, 688 N.W.2d 594 (2004).
18 Webster’s Third New International Dictionary of the English Language,
Unabridged 533 (1993).
19 Id. at 39.

266 	285 NEBRASKA REPORTS
Though factually distinguishable, the rationale of State v.
Knight20 supports our conclusion. In Knight, Neb. Rev. Stat.
§ 83-1,105(1) (Reissue 1981) mandated that the minimum
term of an indeterminate sentence not exceed more than one-
third of the maximum term. The court sentenced the defendant
to 18 months to 3 years in prison on a Class IV felony, for
which the maximum term was 5 years, and the court, exercis-
ing its discretion, gave no credit for 151 days already served.
We concluded that “[w]hen the approximately 5-month period
that defendant was in jail is added to the 18-month sentence,
defendant is serving a minimum of 23 months—an amount
in excess of the statutory minimum.”21 We concluded that the
court, by withholding credit for time served, had improperly
exceeded the statutory sentencing limit.22
[3] The underlying principle of Knight is that credit for
time served should be taken into account so that the effective
sentence is within the statutory limits. The court did not with-
hold credit for time served, but granted credit in excess of the
sentence. But if all 498 days of Wills’ credit were exhausted
on a 1-year sentence, then Wills effectively served a term of
imprisonment greater than the possible maximum sentence for
negligent child abuse under then-existing Nebraska law.
We also note that State v. Banes,23 like this case, involved
time which could have been credited toward the defendant’s
sentence in either of two unrelated criminal cases. But in
Banes, the court—and presumably the same judge—was able
to sentence the defendant on both cases on the same day to
concurrent sentences. So the defendant received full credit for
all of the time he spent in presentence confinement.
[4] Had Wills’ cases similarly lined up as in Banes for
sentencing—regardless whether the sentences imposed were
consecutive or concurrent—he would have received the full
benefit of his 498 days already served. This is because, with
20 State v. Knight, 220 Neb. 666, 371 N.W.2d 317 (1985).
21 Id. at 668, 371 N.W.2d at 319.
22 See id. See, also, State v. Ross, 220 Neb. 843, 374 N.W.2d 228 (1985).
23 See Banes, supra note 17.

STATE v. WILLS 	267
Cite as 285 Neb. 260
consecutive sentences, periods of presentence incarceration
are credited against the aggregate of all terms imposed.24
And with concurrent sentences, such periods are credited
against the longest sentence, but are, in effect, applied
against all the sentences.25 We see no reason for Wills to
receive less than the full benefit of his time already served
simply because his cases progressed differently or because
he was not sentenced contemporaneously for his offenses by
the same judge.
We remand the cause for the court to apply the appropriate
amount of credit to Wills’ sentences. In case No. S-11-1026,
this requires the court to calculate and apply only the credit
necessary to satisfy Wills’ 1-year sentence after any reduction
for good time. And in case No. S-12-415, the court would then
credit any remaining days as time served against Wills’ 2- to
4-year combined sentences.26
The State disagrees with this result. It argues that this
requires the court to exercise discretion in calculating the
amount of time to credit against Wills’ sentences, in contraven-
tion of our mandate in Clark. We disagree. The court will not
be exercising its discretion, but simply calculating the length of
Wills’ sentence following good time reduction and then apply-
ing credit against his sentence in that amount. This is all done
by statute and basic math.
Second, the State argues that requiring the judge to consider
good time credit assumes that Wills would have been granted
that credit. But the judge need not speculate whether the
defendant has earned good time credit for time already spent in
jail; that information is readily discoverable. The judge simply
must determine whether Wills followed the jail rules during
the time spent in jail.27 This determination is nothing new, as
24 See, State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011); State v.
Sanchez, 2 Neb. App. 1008, 520 N.W.2d 33 (1994). See, also, Arthur W.
Campbell, Law of Sentencing § 9:28 (3d ed. 2004 & Supp. 2012-13).
25 See, e.g., Banes, supra note 17.
26 See, id.; § 83-1,106.
27 See § 47-502.

268 	285 NEBRASKA REPORTS
it is well established that good time credit is granted for time
served before sentencing.28
Finally, this result does not permit a defendant to “bank”
credit against a future sentence.29 Instead, we are simply con-
cluding that a court cannot credit more time served against
a sentence than the actual length of the sentence. It just so
happens that Wills accrued the 498 days of credit on both
criminal cases, though they were separate, unrelated inci-
dents. And because not all of the credit was used, he is able
to use any applicable remaining credit to offset part of the
other sentences.
exceSSive SeNteNceS
Wills argues that the court imposed excessive sentences in
case No. S-12-415. Specifically, Wills argues that the court
should have imposed probation rather than incarceration. The
State, of course, argues that incarceration was appropriate. The
record shows that the court did not abuse its discretion, so we
affirm its sentencing order.
[5] The relevant principles of law are well known. It is
within the discretion of the trial court whether to impose
probation or incarceration, and we will uphold the court’s
decision denying probation absent an abuse of discretion.30
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.31
In imposing a sentence, a sentencing judge should consider
the defendant’s (1) age, (2) mentality, (3) education and expe-
rience, (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.32
28 See sources cited supra note 16.
29 See, e.g., State v. Fisher, 218 Neb. 479, 356 N.W.2d 880 (1984).
30 See, e.g., State v. White, 276 Neb. 573, 755 N.W.2d 604 (2008).
31 See, e.g., Pereira, supra note 11.
32 See, e.g., id.

STATE v. WILLS 	269
Cite as 285 Neb. 260
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.33
Wills pleaded guilty to operating a motor vehicle to avoid
arrest, a Class I misdemeanor, and leaving the scene of an
injury accident, a Class IIIA felony. The record shows that law
enforcement attempted to pull Wills’ vehicle over for failure
to stop at a stop sign. Wills fled from law enforcement at high
speeds, and law enforcement pursued Wills’ vehicle, both in
cars and by helicopter. During the pursuit, Wills hit a deer and
crashed his vehicle, and then fled the scene. Wills’ wife was a
passenger in the vehicle, and she was seriously injured in the
crash. Law enforcement tracked Wills and found him hiding in
a wooded area.
The court determined that probation was inappropriate and
sentenced Wills to consecutive prison terms of 1 year for the
misdemeanor and from 1 to 3 years for the felony. In reject-
ing probation, the court emphasized the serious nature of the
crimes and Wills’ history of driving at high rates of speed. The
court also emphasized that incarceration was necessary for the
protection of the public because there was a substantial risk,
supported by the presentence report, that Wills would engage
in further criminal conduct if placed on probation.
The sentences imposed were within the permissible statutory
ranges.34 And based on the evidence in the record, the court did
not abuse its discretion in imposing incarceration. Wills’ crimes
were serious, and Wills’ conduct was obviously dangerous to
himself, his wife, law enforcement, and the general public. The
presentence report also catalogs Wills’ fairly extensive criminal
history, which includes eight separate traffic violations (four
for various levels of speeding), as well as other crimes such
as marijuana possession and disturbing the peace. The court
did not abuse its discretion in imposing incarceration, and we
affirm the court’s sentencing order.
33 See, e.g., id.
34 See, §§ 28-905, 60-697, and 60-698; Neb. Rev. Stat. §§ 28-105 and 28-106
(Reissue 2008).

270 	285 NEBRASKA REPORTS
CONCLUSION
The court improperly credited all 498 days of Wills’ time
served to his 1-year sentence. A court cannot credit more time
to a sentence than the length of the sentence. On remand, the
court should credit only enough time served to satisfy the sen-
tence in case No. S-11-1026, after reducing the sentence for
good time. The court should then credit any applicable remain-
ing time to Wills’ sentences in case No. S-12-415. We also
conclude that the record supports the court’s sentencing order
in case No. S-12-415, and so the court did not abuse its discre-
tion. We affirm the court’s decision in that regard.
affirMed iN part, aNd iN part
reverSed aNd reMaNded.
caSSel, J., not participating.
State of NebraSka ex rel. couNSel for diScipliNe
of the NebraSka SupreMe court, relator,
v. larry l. brauer, reSpoNdeNt.
827 N.W.2d 464
Filed February 22, 2013. 	No. S-11-1061.
Original action. Judgment of disbarment.
heavicaN, c.J., Wright, coNNolly, StephaN, MccorMack,
M iller-lerMaN, and caSSel, JJ.
per curiaM.
INTRODUCTION
This case is before the court on the voluntary surrender of
license filed by respondent, Larry L. Brauer, on January 10,
2013. The court accepts respondent’s voluntary surrender of his
license and enters an order of disbarment.
STATEMENT OF FACTS
Respondent was admitted to the practice of law in the State
of Nebraska on April 5, 1979. Formal charges were filed
against respondent on December 7, 2011, generally alleging
that respondent neglected matters and failed to respond to the