State v. Rivera-Meister

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/06/2024 09:08 AM CST




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                               Nebraska Supreme Court Advance Sheets
                                        318 Nebraska Reports
                                            STATE V. RIVERA-MEISTER
                                                Cite as 

                                     State of Nebraska, appellee, v.
                                   Ryan D. Rivera-Meister, appellant.
                                                   ___ N.W.3d ___

                                        Filed December 6, 2024.   No. S-24-168.

                 1. Sentences: 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.
                 2. ____: ____. An appellate court will not disturb a sentence imposed
                    within the statutory limits absent an abuse of discretion by the trial court.
                 3. Judgments: Words and Phrases. An abuse of discretion occurs when a
                    trial court’s decision is based upon reasons that are untenable or unrea-
                    sonable or if its action is clearly against justice or conscience, reason,
                    and evidence.
                 4. Sentences: Statutes. The calculation and application of credit for time
                    served is controlled by statute, and different statutes govern depending
                    on whether the defendant is sentenced to jail or prison.
                 5. Sentences. Due to the mandatory “shall” language used in 

,106(1) (Reissue 2014), the statute mandates that credit for
                    time served must be given for time spent in custody on a charge when a
                    prison sentence is imposed for a conviction of such charge.
                 6. Sentences: Records. The amount of credit for time served to which a
                    defendant is entitled is an absolute and objective number that is estab-
                    lished by the record, and courts have no discretion to grant a defendant
                    more or less credit than is established by the record.
                 7. Sentences: Records: Proof. The party advocating for a specific jail
                    credit calculation has the burden to provide the sentencing court with a
                    record that establishes such calculation.
                 8. Sentences: Extradition and Detainer. Nothing in the plain text of 

,106(1) (Reissue 2014) authorizes a sentencing court
                    to withhold credit for time spent in custody on a charge for which the
                    offender is sentenced merely because the offender was extradited.
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            Nebraska Supreme Court Advance Sheets
                     318 Nebraska Reports
                         STATE V. RIVERA-MEISTER
                             Cite as 

 9. Foreign Judgments: Sentences: Time. An offender who is serving a
    sentence on another conviction while awaiting trial and sentencing on
    Nebraska charges is not entitled to credit for time served on his or her
    Nebraska sentences under 

,106(1) (Reissue 2014).
10. ____: ____: ____. When being sentenced to prison on a Nebraska charge,
    an offender is entitled to credit under 

,106(1)
    (Reissue 2014) for time spent in custody as a result of such charge, even
    if that custody was outside Nebraska.
11. ____: ____: ____. Because credit under 

,106(1)
    (Reissue 2014) can only be given once, an offender who is in custody
    as a result of a Nebraska charge, but who is also in custody serving an
    unrelated sentence, is not entitled to credit under § 83-1,106(1) for time
    that has been credited toward the sentence.
12. Sentences: Records. When a trial court gives a defendant more or less
    credit for time served than he or she is entitled to, that portion of the
    pronouncement of sentence is erroneous and may be corrected to reflect
    the accurate amount of credit as verified objectively by the record.
13. Sentences: Appeal and Error. An appellate court will not disturb a sen-
    tence imposed within the statutory limits absent an abuse of discretion
    by the trial court.
14. ____: ____. Where a sentence imposed within the statutory limits is
    alleged on appeal to be excessive, the appellate court must determine
    whether a sentencing court abused its discretion in considering and
    applying the relevant factors, as well as any applicable legal principles
    in determining the sentence to be imposed.
15. Sentences. In determining a sentence to be imposed, relevant factors
    customarily considered and applied are the defendant’s (1) age, (2) men-
    tality, (3) education and experience, (4) social and cultural background,
    (5) past criminal record or record of law-abiding conduct, and (6) moti-
    vation 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.

  Appeal from the District Court for Hall County, Andrew C.
Butler, Judge. Affirmed as modified.

  Matthew J. McDonald, of Nebraska Commission on Public
Advocacy, for appellant.

  Michael T. Hilgers, Attorney General, and P. Christian
Adamski for appellee.
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            Nebraska Supreme Court Advance Sheets
                     318 Nebraska Reports
                         STATE V. RIVERA-MEISTER
                             Cite as 

  Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
   Stacy, J.
   After pleading no contest to one count of attempted inten-
tional child abuse resulting in death, Ryan D. Rivera-Meister
was sentenced to a prison term of 40 to 50 years and was given
credit for 706 days spent in a Nebraska jail prior to sentencing.
In this direct appeal, he contends his sentence was excessive
and he seeks an additional 266 days of credit for time spent
in custody in Guatemala awaiting extradition to Nebraska. On
appeal, the State agrees he was entitled to additional credit
under 

,106(1) (Reissue 2014). Because
the record establishes that Rivera-Meister was entitled to addi-
tional credit, we modify the sentence accordingly. We other-
wise affirm.
                       BACKGROUND
   In August 2016, the 16-month-old child of Rivera-Meister’s
girlfriend was fatally injured while in Rivera-Meister’s care.
Rivera-Meister called the 911 emergency dispatch service and
told first responders the child fell and struck his head jump-
ing from a bunk bed. Treating doctors opined that the child’s
injuries were inconsistent with such a fall, and an autopsy con-
cluded the child died from abusive closed head injuries.
          Criminal Charge, Extradition, and Plea
   In 2017, prosecutors in Hall County charged Rivera-Meister
with intentional child abuse resulting in death, a Class IB
felony, 1 and a warrant was issued for his arrest. Law enforce-
ment eventually located Rivera-Meister living in Guatemala,
and in June 2021, he was taken into custody by Guatemalan
authorities and held for extradition to Nebraska. On March
23, 2022, he was returned to Nebraska and lodged in the
Hall County jail on the subject charge. Rivera-Meister was
1
    

(8) (Reissue 2016).
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            Nebraska Supreme Court Advance Sheets
                     318 Nebraska Reports
                         STATE V. RIVERA-MEISTER
                             Cite as 

appointed counsel and bond was set, but he never bonded out
of jail.
   In November 2023, shortly before trial was scheduled to
begin, Rivera-Meister agreed to plead no contest to an amended
information charging one count of attempted intentional child
abuse resulting in death, a Class II felony. 2 In exchange, the
State agreed not to file additional criminal charges and agreed
to withdraw pending motions to revoke Rivera-Meister’s pro-
bation in several unrelated cases. The district court accepted the
no contest plea and found Rivera-Meister guilty of attempted
intentional child abuse resulting in death. A presentence inves-
tigation report (PSR) was ordered, and the matter was set
for sentencing.
   Pursuant to § 83-1,106(1), an offender is entitled to credit
against the sentence imposed “for time spent in custody as
a result of the criminal charge for which a prison sentence
is imposed or as a result of the conduct on which such a
charge is based.” The PSR included information calculating
the number of days Rivera-Meister spent in custody in the Hall
County jail as a result of the criminal charge in this case but
did not include information about the time spent in custody in
Guatemala pending extradition. The PSR did, however, con-
tain a letter from Rivera-Meister, stating he was “picked up in
Guatemala in June of 2021” and he “sat in prison there until
March of 2022 when [he] came [to] Hall County.” The PSR
also contains a letter from defense counsel, stating:
         I included the arrest warrant for [Rivera-Meister]
      showing he was arrested after he arrived back at the
      airport in [Nebraska] from his extradition on March 23,
      2022. By the time of sentencing on February 26, 2024,
      [Rivera-Meister] will have spent 705 days in jail in
      Nebraska, not counting the day of sentencing. [Rivera-
      Meister] also tells you [in his letter] he was arrested for
      his extradition in Guatemala in June 2021. . . . Counting
      the time spent in custody in Guatemala and on his way
2
    

(4)(a) (Reissue 2016).
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            Nebraska Supreme Court Advance Sheets
                     318 Nebraska Reports
                        STATE V. RIVERA-MEISTER
                            Cite as 

       back to Nebraska he spent an additional 266 days starting
       on June 30, 2021, until March 23, 2022, in custody, for
       a total of 971 days we are asking the court to award him
       credit for.
           Sentencing and Credit for Time Served
   At the sentencing hearing on February 26, 2024, the parties
agreed that Rivera-Meister was entitled, under § 83-1,106(1), to
706 days of credit for the time he spent in custody in Nebraska
on the criminal charge in this case. But Rivera-Meister argued
he was also entitled to credit for the 266 days spent in custody
in Guatemala awaiting extradition on the charge, arguing he
was in custody in Guatemala during that time only as a result
of the Nebraska charge.
   To support the request for additional credit, defense counsel
relied on the letters in the PSR describing the time Rivera-
Meister spent in custody in Guatemala. Counsel also pro-
vided the court with an additional letter from the “Guatemala
National Police,” written in Spanish. When the court asked
defense counsel to offer a translation of the letter “as an offi-
cer of the court,” counsel replied that the letter stated Rivera-
Meister had no criminal record in Guatemala. The State did not
object to the letter or dispute its translation. The court accepted
the letter and stated on the record that it would be made part
of the PSR. 3
   The State offered no evidence contradicting Rivera-Meister’s
assertion that he was in custody in Guatemala only as a result
of the criminal charge in this case, and the State advised the
court that it was “not disputing the dates [or] the math” as rep-
resented by defense counsel. But the State took no formal posi-
tion regarding the request for additional credit, stating instead
that it “trust[ed] the Court’s judgment” as to whether Rivera-
Meister “should be entitled to the extra time.”
3
    See Neb. Ct. R. § 6-1906(F) (rev. 2019) (“[i]f addenda or supplements
    are received by the court on the date of sentencing or disposition, then
    the court shall provide the original to the Probation Office as soon as
    practicable for inclusion in the report . . .”).
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            Nebraska Supreme Court Advance Sheets
                     318 Nebraska Reports
                        STATE V. RIVERA-MEISTER
                            Cite as 

   After allocution, the judge stated he had reviewed the PSR,
the additional materials submitted at the sentencing hearing,
and the statements of the attorneys, as well as the statements of
Rivera-Meister and the two individuals who submitted victim
impact statements. The judge further stated that he had con-
sidered Rivera-Meister’s age, mentality, education, social and
cultural background, past criminal behavior, past law-abiding
conduct, and motivation for the offense, as well as the nature
of the offense. The judge observed that Rivera-Meister’s crimi-
nal history was “lengthy” and that his explanation about how
the child was injured was “hard to fathom.”
   The judge sentenced Rivera-Meister to an indeterminate
prison term of 40 to 50 years. In addressing credit for time
served under § 83-1,106(1), the judge described the issue
as whether Rivera-Meister was entitled to “706 days or 971
days,” explaining that the request for 971 days would include
both the 706 days he was in custody in Hall County and the
additional 266 days he was “in custody on this extradition.”
The judge then stated: “I’m not giving the 971 days of credit.
I’ll give you the 706. And the reason for that is it was your
decision to be gone. It was your decision not to come back. It
was your decision that caused this extradition to happen.”
   Rivera-Meister filed this timely appeal, which we moved to
our docket on our own motion.
                ASSIGNMENTS OF ERROR
   Rivera-Meister assigns that the district court erred by (1)
refusing to grant him an additional 266 days of credit for the
time spent in custody in Guatemala awaiting extradition and
(2) imposing an excessive sentence.
                 STANDARD OF REVIEW
   [1] 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
4
    State v. Castillo-Rodriguez, 

, 

 (2023).
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          Nebraska Supreme Court Advance Sheets
                   318 Nebraska Reports
                     STATE V. RIVERA-MEISTER
                         Cite as 

   [2,3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. 5 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. 6
                            ANALYSIS
                     Credit for Time Served
   In his first assignment of error, Rivera-Meister argues the
district court erred as a matter of law in failing to give him
credit for the 266 days he spent in custody in Guatemala. The
State agrees.
   [4] In Nebraska, the calculation and application of credit
for time served is controlled by statute, and different statutes
govern depending on whether the defendant is sentenced to jail
or prison. 7 Because Rivera-Meister was given a prison sen-
tence, his entitlement to credit for time served is governed by
§ 83-1,106(1), which provides, in relevant part:
      Credit against the maximum term and any minimum term
      shall be given to an offender for time spent in custody
      as a result of the criminal charge for which a prison sen-
      tence is imposed or as a result of the conduct on which
      such charge is based. This shall specifically include, but
      shall not be limited to, time spent in custody prior to trial,
      during trial, pending sentence, pending the resolution of
      an appeal, and prior to delivery of the offender to the
      custody of the Department of Correctional Services, the
      county board of corrections, or, in counties which do not
      have a county board of corrections, the county sheriff.
5
  State v. Barnes, 

, 

 (2024).
6
  

7
  

; State v. Harms, 

, 

 (2019).
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           Nebraska Supreme Court Advance Sheets
                    318 Nebraska Reports
                        STATE V. RIVERA-MEISTER
                            Cite as 

   [5-7] Due to the mandatory “shall” language used in
§ 83-1,106(1), we have construed the statute to “mandate[]
that credit for time served must be given for time spent in
custody on a charge when a prison sentence is imposed for
a conviction of such charge.” 8 We have recognized that the
amount of credit for time served to which a defendant is enti-
tled is an absolute and objective number that is established by
the record, and courts have no discretion to grant a defendant
more or less credit than is established by the record. 9 And we
have observed that although it is common for PSRs to include
information regarding the amount of credit to which a defend­
ant is entitled, “the party advocating for a specific jail credit
calculation has the burden to provide the sentencing court
with a record that establishes such calculation.” 10
   Here, the only information the court was provided about the
time Rivera-Meister spent in custody in Guatemala was con-
tained in letters that were made part of the PSR. The State did
not object to or dispute the information contained in those let-
ters, and the court accepted and considered the information. 11
On appeal, the State admits that “Rivera-Meister was arrested
in Guatemala based on his criminal conduct in this case” 12
and further admits that he was held in custody in Guatemala
8
   State v. Mueller, 

, 

 (2018),
   modified on denial of rehearing 

, 

 (2019).
 9
   See State v. Clark, 

, 

 (2009).
10
   

, 

, 

.
11
   See, State v. Lara, 

, 

 (2024) (sentencing court has
   broad discretion regarding source and type of evidence and information to
   use when determining sentence, and evidence may be presented regarding
   any matter court deems relevant), cert. denied ___ U.S. ___, 

, ___ L. Ed. 2d ___; State v. Leahy, 

, 

   (2018) (traditional rules of evidence are relaxed during sentencing phase,
   and evidence may be presented on any matter court deems relevant to
   sentencing).
12
   Brief for appellee at 8.
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             Nebraska Supreme Court Advance Sheets
                      318 Nebraska Reports
                          STATE V. RIVERA-MEISTER
                              Cite as 

for 266 days “because of the criminal charge” 13 in this case.
And we see nothing in the record suggesting that during any
portion of the 266 days Rivera-Meister was in custody in
Guatemala, he was also being held on other charges or was
serving other sentences.
   As such, on this record, the question of Rivera-Meister’s
entitlement to credit under § 83-1,106(1) does not turn on fac-
tual disputes about whether he was in custody in Guatemala
because of the charge in this case or about how many days he
spent in such custody. Instead, we are presented with a ques-
tion of statutory interpretation: Under § 83-1,106(1), is an
offender entitled to credit for time spent in custody in a foreign
country awaiting extradition on the charge for which the prison
sentence is imposed?
   [8] The sentencing court denied Rivera-Meister credit for
such time under § 83-1,106(1), reasoning that it was his own
conduct in fleeing to Guatemala and his “decision not to come
back” that made the extradition procedure necessary. But, as
we explain, we see nothing in the plain text of § 83-1,106(1),
or in our cases construing the statute, that authorizes a sen-
tencing court to withhold credit under such circumstances.
   Nebraska appellate courts have not yet addressed credit under
§ 83-1,106(1) for time spent in custody in a foreign country
pending extradition to face charges in Nebraska. But several
prior opinions have addressed credit under § 83-1,106(1) when
an offender spends time in custody in another state as a result
of a Nebraska charge, and we find those cases instructive.
   In State v. Mueller, 14 the offender was being held in a
Wyoming jail on local charges when a Nebraska arrest war-
rant was issued in connection with a murder investigation in
Morrill County, Nebraska. Nebraska authorities placed a hold
on the offender in Wyoming; 91 days later, Wyoming released
the offender to Nebraska’s custody, and he was detained in a
13
     Id.
14
     

.
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                        STATE V. RIVERA-MEISTER
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Nebraska jail pending trial on charges related to the murder. A
jury found him guilty, and at sentencing, the court gave him
credit for 371 days spent in custody in Nebraska but denied
him credit for the 91 days spent in custody in Wyoming under
the Nebraska hold. The offender appealed, arguing that under
§ 83-1,106, he was entitled to credit for the 91 days he spent
in the Wyoming jail under the Nebraska hold.
   This court agreed, reasoning that once Nebraska issued the
arrest warrant and placed a hold on the offender in Wyoming,
the offender was “in custody because of [the Nebraska]
charges” 15 within the meaning of § 83-1,106(1), even though
he was also being held on Wyoming charges. But we empha-
sized that if the offender “had been given credit for that time
against a sentence imposed in Wyoming, it would not be
available for credit against his Nebraska sentences.” 16 Noting
the State did not dispute that the 91 days had not been cred-
ited to a Wyoming sentence and that information in the PSR
indicated no Wyoming sentence existed, we concluded it was
error for the Nebraska sentencing court to deny the offender
credit for the 91 days spent in custody in Wyoming as a result
of the Nebraska charges.
   [9] In State v. Leahy, 17 the offender was serving a crimi-
nal sentence in Colorado when he was charged in Nebraska
with a new offense. On May 7, 2015, he was extradited to
Nebraska while still serving the Colorado sentence and was
held in a Nebraska jail pending resolution of the Nebraska
charge. On November 28, 2016, he was granted parole on the
Colorado sentence but remained in custody on the Nebraska
charge. At his subsequent sentencing on the Nebraska charge,
the parties agreed he was entitled to credit for the time spent
in custody in Nebraska after he was paroled by Colorado,
but they disputed whether he was also entitled to credit for
15
   Id. at 804, 

 (emphasis omitted).
16
   

, 

 (citing § 83-1,106(4)).
17
   

.
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           Nebraska Supreme Court Advance Sheets
                    318 Nebraska Reports
                        STATE V. RIVERA-MEISTER
                            Cite as 

the period between May 7, 2015, and November 28, 2016
(while he was in custody in Nebraska but was still serving
the Colorado sentence). We held he was not entitled to credit
for that time period, reasoning that as long as he “was serv-
ing a sentence on another conviction while awaiting trial and
sentencing on the Nebraska charges, he was not forced to be
in custody because of the Nebraska charges and is thus not
entitled to credit for time served on his Nebraska sentences
under § 83-1,106(1).” 18 Leahy specifically recognized that the
critical question for purposes of § 83-1,106(1) is not “whether
[the offender] was detained in Nebraska,” but, rather, is
“whether [the offender] was forced to be in custody because
of” the Nebraska charges. 19
   In State v. McLeaney, 20 the offender was serving a sentence
in Missouri at the time he was brought to Nebraska on a
detainer to face new charges. He was held in a Nebraska jail for
435 days awaiting resolution of the Nebraska charges but con-
tinued serving his Missouri sentence. When the offender was
eventually sentenced on the Nebraska charges, he requested
credit for those 435 days. The Nebraska Court of Appeals
concluded he was not entitled to any credit under § 83-1,106,
reasoning: “[E]ven though [the offender] was in a Nebraska
jail prior to disposition of his Nebraska charges, he was not in
custody because of the Nebraska charges. He was in custody
because of his conviction . . . and sentence in Missouri, and
any jail time credits relate solely to that Missouri sentence.” 21
   [10,11] These cases illustrate two general propositions rel-
evant to this case. First, when being sentenced to prison on
18
   Id. at 235-36, 

. See, also, State v. Baker, 

,
   

 (1996) (holding defendant serving Nebraska sentence
   while awaiting trial on new charges not entitled to credit against sentence
   on new charges).
19
   

, 301 Neb. at 235, 

 (emphasis
   omitted).
20
   State v. McLeaney, 

, 

 (1998).
21
   

, 

.
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            Nebraska Supreme Court Advance Sheets
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                         STATE V. RIVERA-MEISTER
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a Nebraska charge, an offender is entitled to credit under
§ 83-1,106(1) for time spent in custody as a result of such
charge, even if that custody was outside Nebraska. 22 And
second, because credit under § 83-1,106(1) can only be given
once, an offender who is in custody as a result of a Nebraska
charge, but who is also in custody serving an unrelated sen-
tence, is not entitled to credit under § 83-1,106(1) for time that
has been credited toward the sentence. 23 A majority of other
jurisdictions with similar time-served statutes apply the same
principles, including in cases where the offender is in custody
pending extradition. 24 At least one jurisdiction, however, holds
that offenders in custody pending extradition are not entitled
to accrue jail credit unless they waive extradition. 25
   The record in this case contains no evidence or informa-
tion about whether Rivera-Meister waived extradition or, if
so, when, and we therefore express no opinion on whether an
offender’s decision to challenge extradition affects the calcula-
tion of credit for time served. On this record, Rivera-Meister
established that he was in custody in Guatemala for 266 days
as a result of the Nebraska charges, and there was no evidence
that any of that time was credited to another sentence. He was
thus entitled under § 83-1,106(1) to credit for 266 days, and
22
   See, 

; 

.
23
   See, id.; 

.
24
   See, e.g., State v. Duran, 

, 

 (2008); Nieto v.
   State, 

, 

 (2003); State v. Cooper, 

, 

 (1999); Nutt v. State, 

 (Ind. App. 1983);
   State v. Johnson, 

, 

 (1979); State v. Willis,
   

 (Minn. 1985); State ex rel. George v. Hunt, 

 (La. 1976); People ex rel. Bradley v. Davies, 

, 

 (1974); People v. Havey, 

, 

   (1968); People v. Nagler, 

, 

 (1964).
25
   See Com. v. Frias, 53 Mass. App. 488, 493, 

 (2002)
   (judicially adopting rule that if “the defendant elects to execute a waiver
   of extradition, then jail time credits would begin to accrue as of that date,”
   but if “the defendant elects to contest rendition, jail time credits do not
   accrue”).
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                       STATE V. RIVERA-MEISTER
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the sentencing court had no discretion to grant him less credit
than was established by the record. 26
   [12] When a trial court gives a defendant more or less credit
for time served than he or she is entitled to, that portion of the
pronouncement of sentence is erroneous and may be corrected
to reflect the accurate amount of credit as verified objectively
by the record. 27 We therefore modify the sentence to include an
additional 266 days of credit for time served, for a total credit
of 972 days.
                    Sentence Not Excessive
   In his second assignment of error, Rivera-Meister argues the
sentence imposed was excessive. This argument lacks merit.
   Rivera-Meister was convicted of a Class II felony, punish-
able by a minimum term of 1 year’s imprisonment and a maxi-
mum term of 50 years’ imprisonment. 28 The sentence of 40 to
50 years’ imprisonment was thus within the statutory limits.
   [13-15] An appellate court will not disturb a sentence
imposed within the statutory limits absent an abuse of discre-
tion by the trial court. 29 Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, as is the
case here, the appellate court must determine whether a sen-
tencing court abused its discretion in considering and applying
the relevant factors, as well as any applicable legal principles,
in determining the sentence to be imposed. 30 In determining a
sentence to be imposed, relevant factors customarily consid-
ered and applied are the defendant’s (1) age, (2) mentality, (3)
education and experience, (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
26
   See 

.
27
   See 

28
   

 (Reissue 2016).
29
   

.
30
   

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offense and (8) the amount of violence involved in the com-
mission of the crime. 31
   Our review of the record shows the sentencing court consid-
ered all of the relevant sentencing factors and did not consider
any inappropriate factors. We find no abuse of discretion in the
sentence imposed.
                        CONCLUSION
   On this record, the district court erred as a matter of law
in failing to credit Rivera-Meister with the 266 days he spent
in custody in Guatemala, but it did not abuse its discretion in
sentencing him to 40 to 50 years’ imprisonment. We therefore
modify the sentence to give Rivera-Meister credit for a total
of 972 days under § 83-1,106(1), and we otherwise affirm the
conviction and sentence.
                                      Affirmed as modified.
31
     Id.