State v. McCain
29 Neb. Ct. App. 981
Neb. Ct. App.2021Background
- Devontay S. McCain was charged with possession with intent to distribute (Class IIA felony), prohibited acts (Class IV felony), and possession of marijuana over 1 oz. (Class III misdemeanor).
- McCain pleaded guilty conditioned on entry into a post-plea drug court program; sentencing was deferred and convictions stood if he failed to complete the program.
- While in drug court he repeatedly violated program rules and served multiple short jail sanctions; he voluntarily withdrew from the program and was returned to district court for sentencing.
- A PSR showed minimal prior criminal history, mental-health diagnoses, counseling participation, high assessed risk to reoffend, and two new offenses committed during drug court participation.
- The district court sentenced McCain to concurrent probation terms (4 years on the felonies, 2 years on the misdemeanor) and 90 days in jail on count I, and credited him with 48 days for jail sanctions served while in drug court.
- The State appealed, arguing the sentences were excessively lenient and that credit for drug-court jail sanctions was improper.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (McCain) | Held |
|---|---|---|---|
| Whether sentences were excessively lenient | Sentences (probation + short jail) are too lenient given repeated drug-court violations, high reoffense risk, and that probation undermines drug court’s deterrent effect | Court reasonably weighed age, mental-health issues, rehabilitative prospects, and retained power to revoke probation; sentences are within statutory limits | Affirmed: no abuse of discretion in imposing probation and 90-day jail term |
| Whether McCain was entitled to credit for jail time served as drug-court sanctions | Jail sanctions were for voluntary program violations, not the underlying criminal charges, so § 47-503 credit is inapplicable | Sentencing was deferred while in drug court, so jail time served then was time spent "pending sentencing" under § 47-503 and thus creditable | Affirmed: credit for 48 days appropriate because sanctions were served while sentencing was deferred/pending |
Key Cases Cited
- State v. Felix, 26 Neb. App. 53, 916 N.W.2d 604 (2018) (standard of review for sentences within statutory limits and factors for sentencing)
- State v. Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020) (question of entitlement and amount of credit for time served is a question of law reviewed independently)
- State v. Workman, 22 Neb. App. 223, 857 N.W.2d 349 (2014) (definition and operation of drug court as postplea intensive supervision/treatment)
- State v. Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011) (procedures and consequences when drug-court participants fail to complete program)
- State v. Hutton, 218 Neb. 420, 355 N.W.2d 518 (1984) (distinguishing credit for time spent in voluntary treatment facilities from credit for jail time)