Worley v. Houston

CONCLUSION
The lower courts did not err in rejecting burns’ incorrect
statutory interpretation. Therefore, we find no error, much less
plain error, in the rulings of the courts below.
A ffirmed .
terry l. W orley , AppellANt , v . robert p. houStoN, director
of the depArtmeNt of correctioNAl S erviceS, ANd roNAld
reithmuller , recordS AdmiNiStrAtor , AppelleeS.
747 N.W.2d 639
Filed April 15, 2008. 	No. A-07-151.
1. Prisoners: Sentences. pursuant to Neb. Rev. Stat. § 83-1,107(2) (Cum. Supp.
1996), the chief executive officer of a facility shall reduce the term of a commit-
ted offender by 3 months for each year of the offender’s term and pro rata for any
part thereof which is less than a year.
2. ____: ____. pursuant to Neb. Rev. Stat. § 83-1,107(3) (Cum. Supp. 1996), the
chief executive officer shall reduce the term of a committed offender up to an
additional 3 months for each year of the offender’s term and pro rata for any
part thereof which is less than a year upon participation in or completion of a
personal program.
3. ____: ____. pursuant to Neb. Rev. Stat. § 83-1,107 (Cum. Supp. 1996), the
total of all the reductions of the term of a committed offender shall be credited
from the date of sentence, which shall include any term of confinement prior to
sentence and commitment as provided pursuant to Neb. Rev. Stat. § 83-1,106
(Reissue 1999), and shall be deducted from the maximum term, to determine the
date when discharge from the custody of the state becomes mandatory.
4. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
5. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
6. Statutes: Appeal and Error. Statutory interpretation is a matter of law, in con-
nection with which an appellate court has an obligation to reach an independent,
correct conclusion irrespective of the determination made by the court below.
7. Prisoners: Sentences. pursuant to Neb. Rev. Stat. § 83-1,107(2) (Cum. Supp.
1996), good time is credited at the time of a prisoner’s sentence and is based on
the prisoner’s maximum term.
634 	16 NEbRASkA AppELLATE REpORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

8. ____: ____. Neb. Rev. Stat. § 83-1,107(3) (Cum. Supp. 1996) requires that a
prisoner be credited with good time for participation in a personal program at the
beginning of his sentence, based on the maximum sentence at that time, at the
rate of 3 months per year, and such is to be deducted from his maximum term in
order to determine his mandatory discharge date in addition to the 3 months per
year of his maximum term for good time under § 83-1,107(2).
Appeal from the District Court for Lancaster County: J effre
cheuvroNt, Judge. Reversed.
kate M. Jorgensen, of Stratton & kube, p.C., and, on brief,
Andrew D. Weeks for appellant.
Jon bruning, Attorney General, and Linda L. Willard for
appellees.
S ieverS, moore, and cASSel, Judges.
S ieverS, Judge.
Terry L. Worley argued to the district court for Lancaster
County that prison officials had miscalculated his sentence
under Neb. Rev. Stat. § 83-1,107 (Cum. Supp. 1996). The dis-
trict court rejected his claim, and he now appeals to this court.
FACTUAL AND pROCEDURAL bACkGROUND
[1-3] On November 4, 1997, Worley was sentenced in York
County, Nebraska, to a term of imprisonment of 20 to 25 years,
with credit for 159 days served. Worley was sentenced under a
version of § 83-1,107 in which the Nebraska Legislature had
amended a “good time” law via 1995 Neb. Laws, L.b. 371.
prior to L.b. 371, § 83-1,107 (Reissue 1994) provided that a
person sentenced to prison automatically received 6 months
of good time credited against his sentence for every year of
his prison term and that good time was credited at the time of
sentencing. L.b. 371 amended the statute so that it read, in part,
as follows:
(2) The chief executive officer of a facility shall reduce
the term of a committed offender by three months for
each year of the offender’s term and pro rata for any part
thereof which is less than a year.
(3) The chief executive officer shall reduce the term of
a committed offender up to an additional three months for
WORLEY v. HOUSTON 	635
Cite as 16 Neb. App. 634

each year of the offender’s term and pro rata for any part
thereof which is less than a year upon [participation in or
completion of a personal program.]
. . . .
The total of all the reductions shall be credited from
the date of sentence, which shall include any term of con-
finement prior to sentence and commitment as provided
pursuant to section 83-1,106, and shall be deducted from
the maximum term, to determine the date when discharge
from the custody of the state becomes mandatory.
§ 83-1,107 (Cum. Supp. 1996) (emphasis supplied).
Robert p. Houston, director of the Department of Correctional
Services, and Ronald Reithmuller, records administrator for the
Department of Correctional Services (collectively Appellees),
calculated Worley’s prison term and informed Worley that his
mandatory discharge date was based on a period of 15 years
minus the credit for time served, which would make his release
date May 24, 2012. This calculation assumed that good time
under § 83-1,107(3) for participation in or completion of a
personal program was to be credited year by year after suc-
cessful completion of a personal program—as opposed to being
credited at the beginning of the sentence based on the prisoner’s
maximum sentence in the same manner as good time under
§ 83-1,107—and then being added back to the sentence for any
year in which the inmate did not complete a personal program.
Worley filed a petition for declaratory judgment in the district
court for Lancaster County against Appellees and the Department
of Correctional Services, alleging that his mandatory discharge
date had been miscalculated. The suit against the Department of
Correctional Services was dismissed on grounds of sovereign
immunity. On cross-motions for summary judgment, the district
court, while noting that § 83-1,107 was ambiguous, entered an
order in favor of Appellees. Worley timely appealed.
ASSIGNMENTS OF ERROR
Worley assigns error to the district court for sustaining
Appellees’ motion for summary judgment, overruling Worley’s
motion for summary judgment, and determining that Appellees
had correctly calculated his mandatory discharge date.
636 	16 NEbRASkA AppELLATE REpORTS

STANDARD OF REVIEW
[4] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genu-
ine issue as to any material fact or as to the ultimate inferences
that may be drawn from those facts and that the moving party is
entitled to judgment as a matter of law. Eicher v. Mid America
Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d 792 (2005).
[5] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment is granted and gives such party
the benefit of all reasonable inferences deducible from the evi-
dence. Spear T Ranch v. Nebraska Dept. of Nat. Resources, 270
Neb. 130, 699 N.W.2d 379 (2005).
[6] Statutory interpretation is a matter of law, in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the court below. See In re Interest of S.B., 263
Neb. 175, 639 N.W.2d 78 (2002).
ANALYSIS
This is a case of first impression but also of limited impres-
sion because of later legislative amendments to the statutes
dealing with an inmate’s good time credit. Neither of the
Nebraska appellate courts has addressed the question raised
by this case, but since Worley was sentenced, the Nebraska
Legislature has again amended § 83-1,107, so the version of the
statute at issue in this case is no longer in effect.
[7] Neither party contests that the 3 months of good time
per year of the inmate’s sentence pursuant to § 83-1,107(2) is
to be credited to a prisoner at the beginning of his sentence.
However, the parties disagree as to how good time is cred-
ited under § 83-1,107(3). Worley asserts that good time under
§ 83-1,107(3) is to be credited at the beginning of a prisoner’s
sentence and is to be based on the prisoner’s maximum term,
as it is in § 83-1,107(2). but Appellees argue that good time
is calculated based on the actual number of years a prisoner
could complete in prison, a number which is smaller than
his maximum term because of the good time that is credited
to him under § 83-1,107(2). The practical difference in these
WORLEY v. HOUSTON 	637
Cite as 16 Neb. App. 634

interpretations is that under Appellees’ interpretation, a prisoner
cannot accumulate as much good time as under Worley’s inter-
pretation and serves a longer sentence. In Worley’s case, the
difference is 30 months.
The language in § 83-1,107(2), in which good time is calcu-
lated based on a prisoner’s maximum term, and the language in
§ 83-1,107(3) are nearly identical. This favors Worley’s argu-
ment that his sentence was miscalculated, because it is logical
that two provisions by which an inmate’s sentence is shortened
found within the same statute, given their nearly identical lan-
guage, should not be applied or calculated differently. both sec-
tions base the amount of good time to be credited to a prisoner
on the prisoner’s “term,” and therefore, since it is uncontested
that “term” in § 83-1,107(2) refers to the prisoner’s maximum
term, the word “term” in § 83-1,107(3) also refers to the pris-
oner’s maximum term.
Further, the language from § 83-1,107 which causes good
time under § 83-1,107(2) to be applied at the beginning of a
prisoner’s sentence, “[t]he total of all the reductions shall be
credited from the date of sentence . . .” (emphasis supplied),
does not distinguish in any way between the good time given
under § 83-1,107(2) and that given under § 83-1,107(3). And
of course, the use of the language “all the reductions” again,
rather pointedly in our view, evidences a legislative intent that
both types of good time be applied and credited from the outset
of the sentence, as stated in the statute. And then, if any of the
good time is not “earned” under § 83-1,107(3), those periods
are added back to the inmate’s sentence.
[8] Therefore, we interpret § 83-1,107(3) to require that
a prisoner be credited with good time for participation in a
personal program at the beginning of his sentence, based on
the maximum sentence at that time, at the rate of 3 months
per year, and such is to be deducted from his maximum term
in order to determine his mandatory discharge date in addi-
tion to the 3 months per year of his maximum term for good
time under § 83-1,107(2). Our conclusion is based on the plain
reading of the words used is the statute, because, despite the
disagreement of the parties about the meaning of the statute,
we find that it is not ambiguous.
638 	16 NEbRASkA AppELLATE REpORTS

Accordingly, since Worley’s maximum sentence is 25 years,
by crediting him with 6 months of good time per year of such
term, plus 159 days for time served, we find that Worley’s man-
datory discharge date is 12 years 6 months from the date on
which he was sentenced, November 4, 1997. Adding 12 years 6
months to that date, and subtracting 159 days for time served,
makes Worley’s mandatory discharge date November 26, 2009.
Of course, the mandatory discharge date so determined is only
a tentative date, because a prisoner might fail to perform the
requirements of the prisoner’s personal program or be subject
to losing good time for disciplinary reasons.
CONCLUSION
For the reasons stated above, we reverse the district court’s
order sustaining Appellees’ motion for summary judgment and
overruling Worley’s motion for summary judgment. Worley’s
motion for summary judgment is hereby sustained, and his
mandatory discharge date from prison is November 26, 2009.
reverSed .
JAmeS l. yelli , AppellANt , v . beverly N eth ,
director , S tAte of N ebrASkA, depArtmeNt
of motor vehicleS, Appellee .
747 N.W.2d 459
Filed April 15, 2008. 	No. A-07-567.
1. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation. The
holder of a commercial driver’s license is subject to administrative revocation for
driving a commercial vehicle with a blood alcohol content of .04 or more.
2. Jurisdiction: Appeal and Error. before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
3. ____: ____. A jurisdictional question which does not involve a factual dispute is
determined by an appellate court as a matter of law.
4. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Appeal and Error. Neb. Rev. Stat. § 60-4,167.02 (Reissue 2004) provides that
any person aggrieved because of disqualification pursuant to a hearing under Neb.
Rev. Stat. § 60-4,167 (Reissue 2004) may appeal to the district court of the county
where the alleged violation occurred in accordance with the Administrative
procedure Act.
YELLI v. NETH 	639
Cite as 16 Neb. App. 639