Hurbenca v. Nebraska Dept. of Corr. Servs.

entered on August 23, ruling on the motion to dismiss. Therefore,
this court is without jurisdiction to hear this appeal.
A ppeAl dismissed .
vAsile hurBencA, AppellAnT, v . neBrAskA depArTmenT
of correcTionAl services , Appellee .
742 N.W.2d 773
Filed December 4, 2007. 	No. A-06-945.
1. Statutes: Appeal and Error. Interpretation of a statute presents a question of law,
in connection with which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision made by the court below.
2. Sentences: Time: Prisoners. The chief executive officer of a correctional facility
shall reduce the term of a committed offender by 6 months for each year of the
offender’s term and pro rata for any part thereof which is less than a year.
3. ____: ____: ____. The total of term reductions shall be credited from the date of
sentence, which shall include any term of confinement prior to sentence and com-
mitment as provided pursuant to Neb. rev. Stat. § 83-1,106 (reissue 1987), and
shall be deducted (1) from the minimum term, to determine the date of eligibility
for release on parole, and (2) from the maximum term, to determine the date when
discharge from the custody of the state becomes mandatory.
4. Statutes. A statute is open for construction only when the language used requires
interpretation or may reasonably be considered ambiguous.
5. ____. A statute is ambiguous when the language used cannot be adequately
understood either from the plain meaning of the statute or when considered in pari
materia with any related statutes.
6. Habitual Criminals: Sentences: Probation and Parole: Time. It is undisputed
that a habitual criminal sentenced under Neb. rev. Stat. § 29-2221 (reissue 1995)
may not be released on parole until the individual has served the mandatory mini-
mum sentence of 10 years’ imprisonment.
7. Sentences: Time: Prisoners. The fact that Neb. rev. Stat. § 83-1,107 (reissue
1994) does not address whether good time may be applied to the maximum term of
the sentence when the mandatory minimum and the maximum term are the same
number of years gives rise to an ambiguity.
8. Probation and Parole: Time. The Board of parole shall reduce, for good conduct
in conformity with the conditions of parole, a parolee’s parole term by 2 days for
each month of such term.
9. Sentences: Probation and Parole: Time. The total of reductions for good conduct
shall be deducted from the maximum term, less good time granted pursuant to
Neb. rev. Stat. § 83-1,107 (reissue 1994), to determine the date when discharge
from parole becomes mandatory.
222 	16 NeBrASkA AppellATe repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

10. Probation and Parole: Time. reductions of the parole terms may be forfeited,
withheld, and restored by the Board of parole after the parolee has been consulted
regarding any charge of misconduct or breach of the conditions of parole.
11. Habitual Criminals: Sentences: Time. Neb. rev. Stat. § 83-1,108 (reissue 1987)
is ambiguous when compared in pari materia to Neb. rev. Stat. § 29-2221 (reissue
1995), the habitual criminal statue requiring a mandatory minimum prison sen-
tence of 10 years, because it makes no mention of mandatory minimum sentences,
and therefore gives no instruction on whether good time should be applied against
the maximum sentence before the mandatory minimum sentence is served.
Appeal from the District Court for Johnson County: dAniel
B ryAn , J r ., Judge. Affirmed.
Vasile Hurbenca, pro se.
Jon Bruning, Attorney General, and Stephanie A. Caldwell
for appellee.
sievers , cArlson, and cAssel, Judges.
sievers, Judge.
Appellant argues in this appeal that the computation of his
prison sentence was incorrect because his mandatory minimum
sentence of 10 years under Neb. rev. Stat. § 29-2221 (reissue
1995) should have been reduced for “good time” pursuant to
Neb. rev. Stat. § 83-1,108 (reissue 1987). We have directed
that the appeal be submitted without oral argument under Neb.
Ct. r. of prac. 11 (rev. 2006).
FACTUAl AND prOCeDUrAl BACkGrOUND
On September 25, 1986, Vasile Hurbenca was sentenced in
Douglas County to 6 to 20 years’ imprisonment for theft and 4
years’ imprisonment for attempting to procure fraudulent title,
sentences to be served consecutively. This resulted in a total
term of 6 to 24 years’ imprisonment.
On December 8, 1987, Hurbenca was sentenced in lancaster
County for attempted escape and received a consecutive sen-
tence of 1 year’s imprisonment. This made his sentence a total
term of 6 to 25 years’ imprisonment.
On December 10, 1991, Hurbenca was sentenced in Douglas
County for false application for a motor vehicle and received a sen-
tence consecutive to others recounted above of 1 year 7 months’
HUrBeNCA v. NeBrASkA DepT. OF COrr. SerVS. 	223
Cite as 16 Neb. App. 222

to 5 years’ imprisonment. This resulted in a total term of 7 years
7 months’ to 30 years’ imprisonment.
On February 23, 1996, Hurbenca was sentenced in Douglas
County for possession of a deadly weapon by a felon and
received a sentence consecutive to others recounted above of 10
to 15 years’ imprisonment under the habitual criminal statute,
§ 29-2221. This resulted in a total term of 17 years 7 months’ to
45 years’ imprisonment.
On September 17, 2002, Hurbenca was sentenced in lancaster
County for escape and received a sentence of 10 to 15 years’
imprisonment under the habitual criminal statute to be served
consecutively to his other sentences. This resulted in a total
term of 27 years 7 months’ to 60 years’ imprisonment.
After 	this 	last 	conviction 	and 	sentence, 	the 	Nebraska
Department 	of 	Correctional 	Services 	(DCS) 	computed
Hurbenca’s parole eligibility date to be August 18, 2008, and
his discharge date to be may 28, 2019. This was computed by
adding the 10-year mandatory minimum sentence to Hurbenca’s
previous parole eligibility date of August 18, 1998, and to his
previous discharge date of may 28, 2009.
On December 5, 2005, Hurbenca filed an action in the
district court for Johnson County pursuant to Neb. rev. Stat.
§§ 25-21,149 through 25-21,164 (reissue 1995 & Cum. Supp.
2006), seeking declaratory relief because DCS had inaccurately
calculated his prison sentence. On August 23, 2006, the district
court, analyzing Hurbenca’s claims using Johnson v. Kenney,
265 Neb. 47, 654 N.W.2d 191 (2002), declared that the com-
putation of Hurbenca’s parole and discharge dates was correct.
Hurbenca timely appealed.
ASSIGNmeNTS OF errOr
Hurbenca assigns, restated, the following errors to the district
court: (1) its finding that § 83-1,108 is ambiguous and subject
to interpretation and (2) its failing to apply § 83-1,108 to the
10-year mandatory minimum portion of his prison sentence.
STANDArD OF reVIeW
[1] Interpretation of a statute presents a question of law, in
connection with which an appellate court has an obligation to
reach an independent conclusion irrespective of the decision
224 	16 NeBrASkA AppellATe repOrTS

made by the court below. State v. Mather, 264 Neb. 182, 646
N.W.2d 605 (2002).
ANAlYSIS
The issue presented is one of statutory interpretation: whether
the good time credit set forth in § 83-1,108 applies to the man-
datory minimum sentence imposed upon Hurbenca pursuant
to § 29-2221(1). Hurbenca’s sentence was properly calculated
based on the Supreme Court case of Johnson v. Kenney, supra.
[2,3] In Johnson, James Johnson had been sentenced under
§ 29-2221(1), the habitual criminal law, which carries a manda-
tory minimum sentence of 10 years’ imprisonment. The question
was whether Neb. rev. Stat. § 83-1,107 (reissue 1994), the then
applicable “good time” statute, should apply to the mandatory
minimum sentence given to Johnson. The relevant portions of
§ 83-1,107 read as follows:
(1) The chief executive officer of a facility shall reduce
the term of a committed offender by six months for each
year of the offender’s term and pro rata for any part thereof
which is less than a year. The total of all such reductions
shall be credited from the date of sentence, which shall
include any term of confinement prior to sentence and
commitment as provided pursuant to section 83-1,106, and
shall be deducted:
(a) From the minimum term, to determine the date of
eligibility for release on parole; and
(b) 	From 	the 	maximum 	term, 	to 	determine 	the
date 	when 	discharge 	from 	the 	custody 	of 	the 	state
becomes mandatory.
[4-7] The Supreme Court found that this statute was ambig-
uous as to whether it applied to mandatory minimum sentences
like Johnson’s, stating:
A statute is open for construction only when the language
used requires interpretation or may reasonably be consid-
ered ambiguous. . . . A statute is ambiguous when the lan-
guage used cannot be adequately understood either from
the plain meaning of the statute or when considered in
pari materia with any related statutes. . . . It is undisputed
that a habitual criminal sentenced under § 29-2221 may
HUrBeNCA v. NeBrASkA DepT. OF COrr. SerVS. 	225
Cite as 16 Neb. App. 222

not be released on parole until the individual has served
the mandatory minimum sentence of 10 years. The fact
that § 83-1,107 does not address whether good time may
be applied to the maximum term of the sentence when the
mandatory minimum and the maximum term are the same
number of years gives rise to the ambiguity.
Johnson v. Kenney, 265 Neb. at 50-51, 654 N.W.2d at 194
(citations omitted).
The Supreme Court then said, “When the relevant statutes
are considered in pari materia, the intent of habitual criminal
sentencing is thwarted if good time credit is applied to the
maximum term of the sentence before the mandatory minimum
sentence has been served. The minimum portion of the sentence
would have no meaning.” Id. at 51, 654 N.W.2d at 194.
[8-11] Here our analysis of Hurbenca’s sentence and the
application of § 83-1,108 is the same as the Supreme Court’s
analysis in Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191
(2002). Hurbenca was sentenced to a mandatory minimum of
10 years’ imprisonment under § 29-2221, just like Johnson.
And although a different “good time” statute was applicable to
Hurbenca (§ 83-1,108) than was to Johnson (§ 83-1,107), the
following language in § 83-1,108 was also ambiguous:
(1) The Board of parole shall reduce for good con-
duct in conformity with the conditions of his parole, a
parolee’s parole term by two days for each month of such
term. The total of such reductions shall be deducted from
his maximum term, less good time reductions granted
under the provisions of sections 83-1,107 and 83-1,107.01,
to determine the date when his discharge from parole
becomes mandatory.
(2) reductions of the parole terms may be forfeited,
withheld, and restored by the Board of parole after the
parolee has been consulted regarding any charge of mis-
conduct or breach of the conditions of his parole.
Section 83-1,108 is ambiguous when compared in pari materia
to § 29-2221, the habitual criminal statute requiring a manda-
tory minimum prison sentence of 10 years, because it makes
no mention of mandatory minimum sentences, and therefore
gives no instruction on whether “good time” should be applied
226 	16 NeBrASkA AppellATe repOrTS

against the maximum sentence before the mandatory minimum
sentence is served.
The Supreme Court’s reasoning in Johnson, supra, is appli-
cable here, which is that it would thwart the intent of habitual
criminal sentencing if good time credit is applied to the maxi-
mum term of the sentence before the mandatory minimum sen-
tence has been served. The minimum portion of the sentence
would have no meaning. It is called a “mandatory” sentence for
a reason, and the legislature’s language in § 83-1,108 gives no
indication that the mandatory nature of the minimum sentence
under the habitual criminal statute was to be altered. Therefore,
DCS and the trial court correctly calculated Hurbenca’s prison
sentence, parole eligibility, and mandatory discharge dates under
§ 29-2221 by not applying “good time credit” under § 83-1,108
before the mandatory minimum sentence was served.
Hurbenca also asserts that the facts in this case are differ-
ent than the facts in Johnson, supra. Hurbenca states that his
sentence is a consolidated sentence and that he had received a
consecutive sentence while serving his original sentence, while
Johnson’s sentence was not a consolidated or consecutive sen-
tence. But these distinctions make no difference. That Hurbenca
is serving multiple or consecutive sentences whereas Johnson
was serving only a single sentence does not affect the issues in
this case: whether § 83-1,108 is ambiguous, and if so, whether
§ 83-1,108 should be applied against the mandatory minimum
prison sentence of § 29-2221. Having resolved those issues,
and utilizing the precedent of Johnson, the differences between
Hurbenca’s and Johnson’s prison sentences do not support a
different result in this case than in Johnson.
CONClUSION
We find that § 83-1,108 when compared in pari materia with
§ 29-2221 is ambiguous and that the Supreme Court’s ruling
in Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (2002), is
applicable in interpreting it. Therefore, DCS and the trial court
correctly determined that “good time” credit under § 83-1,108
should not be applied to Hurbenca’s prison sentence before
he has served the mandatory minimum sentence of 10 years’
imprisonment under § 29-2221.
A ffirmed .
HUrBeNCA v. NeBrASkA DepT. OF COrr. SerVS. 	227
Cite as 16 Neb. App. 222