by Casey J. Bastian

On March 10, 2023, the Nebraska Supreme Court affirmed a sentencing court’s jail credit calculation under Neb. Rev. Stat. § 47-503 (Reissue 2021), in a case where the amount of time served was disputed. Importantly, the Court held that the burden to produce a sufficient record of time served is on the person locked up, not the government holding him.

Celvin Ottoniel Castillo-Rodriguez was arrested and placed in the Hall County Jail (HCJ) on October 22, 2021. Four days later, he executed an appearance bond and was released to the custody of federal Immigration and Customs Enforcement (ICE), which also houses migrant detainees at HCJ. The ICE detainer was unrelated to the offense for which Castillo-Rodriguez was initially arrested.

Though everyone agreed that ICE held him in HCJ, there was no evidence of an agreement in the record between the agency and the jail to transfer detainees in the manner Castillo-Rodriguez was. Nonetheless, he remained continuously detained from October 26, 2021, until his sentencing in the criminal matter on May 24, 2022.

Castillo-Rodriguez then entered a plea of no contest to two Class I misdemeanor counts and received 365 days in jail on each count to be served consecutively. The sentencing court awarded 94 days jail credit. The court calculated the jail credit under § 47-403, which includes time prior to trial, during trial, and pending sentence.

But what about his time in ICE custody – should that be used in calculating his sentence credit? Castillo-Rodriguez argued that he had lodged two writs of habeas corpus ad prosequendum – one on October 26, 2021, and the other on March 17, 2022 – precisely because he wanted the incarceration for ICE to count at sentencing for his state charges.

But the sentencing court found nothing on the record to indicate that the writs were executed either by ICE or the sheriff of Hall County – even though both held Castillo-Rodriguez in the same jail. Without proof he was held for 215 days on the state charges, it refused to give him credit for the time.

On appeal, Castillo-Rodriguez acknowledged the record was lacking. But he argued that it was state’s duty to create such a record. The Nebraska high court disagreed. The Court found that Nebraska precedent allows a sentencing judge “no discretion to grant more or less jail credit than is established by the record.” Since the government couldn’t say for certain why Castillo-Rodriguez was held in HCJ on any of those 215 days, the Court found no record available to demonstrate error by the sentencing court.

The Court also determined that just because the writs Castillo-Rodriguez filed were issued, that does not establish compliance with their execution – which, remember, did not involve moving him from the jail at all; rather, it merely involved changing whether he was counted as an ICE detainee or a state detainee.

Accordingly, the Court found that there was no error by the sentencing court and the determination of 94 days jail credit was correct based on the established record. The burden is on the person requesting the jail credit, the Court said, so the calculation was affirmed. See: State v Castillo-Rodriguez, 313 Neb. 763 (2023).

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