State v. Roth ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/09/2022 01:07 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE V. ROTH
Cite as 311 Neb. 1007State of Nebraska, appellee, v.
Derek J. Roth, appellant.
___ N.W.2d ___
Filed July 15, 2022. No. S-21-792.
1. Sentences: Appeal and Error. When sentences imposed within statu-
tory limits are alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discretion in
considering well‑established factors and any applicable legal principles.
2. Judges: Words and Phrases. A judicial abuse of discretion exists only
when a trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or conscience,
reason, and evidence.
3. Appeal and Error. Consideration of plain error occurs at the discretion
of an appellate court.
4. ____. Plain error may be found on appeal when an error unasserted or
uncomplained of at trial, but plainly evident from the record, prejudi-
cially affects a litigant’s substantial right and, if uncorrected, would
result in damage to the integrity, reputation, and fairness of the judi-
cial process.
5. Sentences. In imposing a sentence, a sentencing judge should consider
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 offense, and (8) the amount of violence involved in the
commission of the crime.
6. ____. The sentencing court is not limited to any mathematically applied
set of factors, but the appropriateness of the sentence is necessarily a
subjective judgment that includes the sentencing judge’s observations
of the defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life.
7. Sentences: Appeal and Error. A sentence that is contrary to the court’s
statutory authority is an appropriate matter for plain error review.
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STATE V. ROTH
Cite as 311 Neb. 10078. Sentences. A sentence is illegal when it is not authorized by the judg-
ment of conviction or when it is greater or less than the permissible
statutory penalty for the crime.
9. Sentences: Appeal and Error. An appellate court has the power on
direct appeal to remand a cause for the imposition of a lawful sentence
where an erroneous one has been pronounced.
10. Sentences: Probation and Parole. Post‑release supervision is a form
of probation.
11. Statutes: Legislature: Intent. In discerning the meaning of a statute,
a court must determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the statute con-
sidered in its plain, ordinary, and popular sense, it being a court’s duty
to discover, if possible, the Legislature’s intent from the language of the
statute itself.
12. ____: ____: ____. Components of a series or collection of statutes
pertaining to a certain subject matter are in pari materia and should
be conjunctively considered and construed to determine the intent of
the Legislature so that different provisions are consistent, harmonious,
and sensible.
13. Words and Phrases. As a general rule, the use of the word “shall” is
considered to indicate a mandatory directive, inconsistent with the idea
of discretion.
14. Sentences: Appeal and Error. The statutory provisions of Neb. Rev.
Stat. §§ 29‑2204.02 and 28‑105 (Reissue 2016) relating to post‑release
supervision are mandatory, and a sentence that fails to impose
post‑release supervision when required is an appropriate matter for an
appellate court’s discretionary plain error review.
15. Sentences. The trial court’s discretion to direct that sentences be served
either concurrently or consecutively applies equally to terms of impris-
onment and terms of post‑release supervision.
Appeal from the District Court for Dodge County: Geoffrey
C. Hall, Judge. Vacated and remanded with directions.
Daniel S. Reeker, of Kendall, Crawford & Reeker, P.C.,
L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE V. ROTH
Cite as 311 Neb. 1007Freudenberg, J.
INTRODUCTION
Following convictions of two counts of possession of a
deadly weapon (not a firearm) by a prohibited person and
one count of third degree domestic assault, the defendant was
sentenced to 30 months’ probation. His probation was later
revoked, and he was sentenced to 3 years’ imprisonment. In a
direct appeal following the probation revocation, the defendant
argues his total sentence of imprisonment was excessive. The
State argues the district court plainly erred in failing to impose
mandatory post‑release supervision as part of the total sentence
of imprisonment.
BACKGROUND
Derek J. Roth was originally charged in Dodge County with
possession of a firearm by a prohibited person, a Class ID fel-
ony, in violation of Neb. Rev. Stat. § 28‑1206(1)(a) and (3)(b)
(Supp. 2017); two counts of possession of a deadly weapon
(not a firearm) by a prohibited person, both Class III felonies,
in violation of § 28‑1206(1)(a) and (3)(a); third degree domes-
tic assault, a Class I misdemeanor, in violation of Neb. Rev.
Stat. § 28‑323(1)(a) (Reissue 2016); three counts of carrying
a concealed weapon, all Class I misdemeanors, in violation of
Neb. Rev. Stat. § 28‑1202 (Reissue 2016); and violation of a
protection order, a Class I misdemeanor, in violation of Neb.
Rev. Stat. § 42‑924 (Cum. Supp. 2018).
Pursuant to a plea agreement, Roth pled no contest to two
counts of possession of a deadly weapon (not a firearm) by
a prohibited person, both Class III felonies, and third degree
domestic assault, a Class I misdemeanor.
The presentence investigation report (PSI) prepared for sen-
tencing set forth the circumstances that led to Roth’s original
charges. On January 7, 2018, a Fremont, Nebraska, police
officer was dispatched to a hotel in reference to a woman who
called the 911 emergency dispatch service to report that she
had been assaulted. The victim told the officer that she had
been working concessions at a basketball game when Roth
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STATE V. ROTH
Cite as 311 Neb. 1007arrived and wanted her to leave. The victim willingly left
with him. She stated that she thought “things would be okay,”
since she had a protection order against Roth out of Lancaster
County.
They bought alcohol and went to a hotel room. The victim
told the officer that Roth began accusing her of having rela-
tionships with others and that they got into an argument. Roth
told the victim she was being too loud and then grabbed her
face with his hands in an attempt to keep her quiet.
The victim reported she left the room and ran to the lobby,
where she called the police. Roth came to the lobby and
attempted to get her to leave with him in his vehicle. The
victim stated she did not go with him because she was afraid.
The victim reported that she knew he usually carried a firearm
with him.
Upon arrival, the police observed the injuries to the victim’s
face. There was swelling under both eyes and on her cheek.
The victim also showed the officer defensive bruising on both
her forearms, which she advised was from the day before. The
victim told the officer that there was a history of domestic
violence between her and Roth, which has resulted in approxi-
mately 16 calls to the Lincoln, Nebraska, Police Department.
Roth was observed leaving the hotel parking lot in a vehicle
as officers arrived. Roth was ultimately stopped. A search of
his vehicle revealed a set of brass knuckles, a serrated Buck
knife, and a handgun.
Roth reported that he and the victim fought “‘a lot’” and
that the police were called on several occasions. During one
such altercation, Roth indicated that the victim stabbed him
as evidenced by the scars on his arms. Roth reported that he
felt anger, embarrassment, and disappointment when he thinks
about this offense because he “‘knew it was bound to happen
and was mad that [he] went around her again.’” He denied any
domestic violence in other relationships he has had.
In the “LS/CMI” assessment, the PSI indicated that Roth is
considered to be a high risk for reoffending. Roth scored in
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STATE V. ROTH
Cite as 311 Neb. 1007the very high risk range in the alcohol/drug problems category
and in the high risk range in the family/marital and companions
categories. Roth scored in the medium risk range in the crimi-
nal history and antisocial pattern categories, low risk range in
the procriminal attitude/orientation and education/employment
categories, and very low risk range in the leisure/recreation
category.
The probation officer stated that although Roth expressed a
willingness to change, he had a history of domestic violence,
he had a history of not abiding by the terms of the protection
order, and he minimized the seriousness of the offenses. The
officer noted that Roth was willing to participate in proba-
tion and that he had never been on a term of probation in the
past; however, the probation officer noted that the assessment
suggested there is a high risk to the community for continued
victimization.
Roth was sentenced to a 30‑month term of intensive super-
vised probation on each of the three counts of the amended
information, with the terms ordered to run concurrently.
Conditions of Roth’s probation included the requirement that
Roth not violate the law.
During Roth’s term of probation, he received numerous
administrative sanctions, as well as two custodial sanctions for
failing to comply with his order regarding alcohol/drug testing
and consuming alcohol. Ultimately, the State filed a motion to
revoke Roth’s probation, alleging Roth violated the terms of
his probation by violating the law. Roth had been arrested in
Lancaster County, Nebraska, and was accused of committing
the offenses of terroristic threats, use of a weapon to commit a
felony, domestic assault, and criminal mischief. The probation
officer stated that the alleged victim of these new charges was
the same victim in the present matter. The victim disclosed to
the police that Roth assaults her and threatens to kill her on a
regular basis.
Later, the State amended the motion to revoke proba-
tion to add allegations due to Roth’s again being arrested in
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STATE V. ROTH
Cite as 311 Neb. 1007Lancaster County for assault. At the arraignment hearing on
the State’s amended motion to revoke probation, upon Roth’s
admission, the court found him guilty of violating his proba-
tion order, directed the PSI be updated, and scheduled the
matter for resentencing after the conclusion of his Lancaster
County matters.
At sentencing, the court indicated that it had reviewed and
considered the updated PSI which consisted of Roth’s original
PSI with an added cover letter that outlined the sanctions and
charges that had occurred between the date the alleged proba-
tion violation was filed and the date on the cover letter. The
cover letter pointed out the charges in Lancaster County that
triggered the motion to revoke probation and the multiple
sanctions he received. The letter also indicated that Roth had
been deceitful about his residence by stating he had been liv-
ing with his mother when he was actually living with the
victim. Finally, the probation officer pointed out that Roth
completed a domestic violence class in August 2020 and had
maintained employment since the most recent administrative
sanction, but his updated assessments showed very high scores
in the procriminal attitude, antisocial patterns, and compan-
ions categories.
During his sentencing presentation, Roth’s counsel informed
the court that Roth had entered a plea agreement in the related
Lancaster County case where he pled to two reduced charges of
third degree domestic assault, both Class I misdemeanors, and
was sentenced to 200 days in county jail.
The State asserted that Roth was already a high risk to
reoffend when he was placed on probation and had minimized
the seriousness of his actions. The State pointed out that Roth
had been given an opportunity to have probation and that he
reoffended against the same victim. Further, the State argued
that the updated PSI scored Roth in the very high risk range in
several categories. The State concluded that “due to the seri-
ousness of this matter and this offender continues to re‑offend
again[st] the same victim . . . the State believes a term
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STATE V. ROTH
Cite as 311 Neb. 1007of incarceration is necessary.” The State asked the court to
impose terms of imprisonment for each of the offenses, which
could all run concurrent to one another but consecutive to the
sentence imposed in the related Lancaster County matter.
Roth’s counsel asked the court to simply terminate Roth’s
probation “unsatisfactorily” and allow him to be “essentially
done with his case.” It was pointed out that the violation of
probation was 18 months prior with no additional violations
since that time and that due to COVID‑19, Roth’s term of
probation had been extended by 4 months beyond the original
term. Defense counsel asserted Roth had successfully com-
pleted all the classes ordered during his time on probation.
Defense counsel requested that if the court were to terminate
probation and place Roth in a period of incarceration, the court
impose a minimal time and allow it to run concurrent with the
Lancaster County case he was currently serving. Roth told the
court, “I’m just working toward[] bettering myself. And I want
to get out, and see my nephew, and see my family, and learn
my lesson, and keep doing what I have to do.”
The court stated that Roth was given the privilege of proba-
tion and the opportunity to show he would abide by the law
and “not, I repeat, not inflict further violence on women, this
victim, or anyone else.” He failed to do so, and “there is no
excuse or justification for that.” The court revoked Roth’s pro-
bation and sentenced him to 3 years’ imprisonment on counts
I and II and 1 year’s imprisonment on count III. The sentences
were ordered to run concurrent with one another but consecu-
tive with the sentence imposed in Lancaster County.
The court did not impose post‑release supervision. It rea-
soned, “I will order no Post‑Release Supervision at the end of
your prison term, in that I do not feel it’d be a benefit to you or
society, and it would be a waste of precious State resources.”
ASSIGNMENT OF ERROR
Roth assigns, reworded, that the district court abused its
discretion when it imposed excessive sentences when it resen-
tenced him following his probation revocation.
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STATE V. ROTH
Cite as 311 Neb. 1007STANDARD OF REVIEW
[1,2] When sentences imposed within statutory limits are
alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion in
considering well‑established factors and any applicable legal
principles. 1 A judicial abuse of discretion exists only when a
trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. 2
[3,4] Consideration of plain error occurs at the discretion of
an appellate court. 3 Plain error may be found on appeal when
an error unasserted or uncomplained of at trial, but plainly
evident from the record, prejudicially affects a litigant’s sub-
stantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process. 4
ANALYSIS
Excessive Sentences
Roth argues that the total sentence of 3 years’ imprison-
ment after his probation was revoked is excessive because it
“dramatically disproportionately punishes him.” 5 Roth argues
that the court ignored a number of mitigating factors, such
as how long he had been successful on probation, his ability
to complete the terms of his probation, and the fact that he
was not ultimately convicted of felonies in Lancaster County
District Court case No. CR20‑575. Further, Roth asserts the
court questioned his motivations when there was no evidence
presented by the State about the nature of any violence against
any woman other than the charges themselves “and the conduct
that can result in a domestic violence conviction can range
1
State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
2
Id.3
State v. Kipple, 310 Neb. 654, 968 N.W.2d 613 (2022).
4
Id.5
Brief for appellant at 8.
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STATE V. ROTH
Cite as 311 Neb. 1007from minimal to extreme.” 6 Finally, Roth asserts that the court
seemed to completely ignore that he completed 34 months of
probation due to the time this case took, which was 4 months
more than was originally ordered.
Roth’s original conviction for possession of a deadly weapon
(not a firearm) by a prohibited person is a Class III felony and
punishable by a maximum term of 4 years’ imprisonment. 7
Roth’s original conviction for third degree domestic assault is
a Class I misdemeanor and punishable by a maximum term of
not more than 1 year’s imprisonment. 8 Roth was sentenced to
3 years’ imprisonment on each of the possession of a deadly
weapon (not a firearm) by a prohibited person convictions and
1 year’s imprisonment for the third degree domestic assault
conviction. When sentences imposed within statutory limits
are alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion in
considering well‑established factors and any applicable legal
principles. 9 A judicial abuse of discretion exists only when a
trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. 10
[5,6] When imposing a sentence, a sentencing judge should
consider 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
offense, and (8) the amount of violence involved in the com-
mission of the crime. 11 The sentencing court is not limited to
6
Id. at 9.
7
Neb. Rev. Stat. § 28‑105 (Reissue 2016) and § 28‑1206(3)(a).
8
Neb. Rev. Stat. § 28‑106 (Reissue 2016) and § 28‑323.
9
State v. Blake, supra note 1; State v. Greer, 309 Neb. 667, 962 N.W.2d 217(2021).
10
See id.11
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STATE V. ROTH
Cite as 311 Neb. 1007any mathematically applied set of factors, but the appropriate-
ness of the sentence is necessarily a subjective judgment that
includes the sentencing judge’s observations of the defendant’s
demeanor and attitude and all the facts and circumstances sur-
rounding the defendant’s life. 12
Roth was 23 years old at the time of his original sentencing
and 26 years old at the time of resentencing. Roth has a crimi-
nal history of two convictions of minor in possession, posses-
sion of marijuana, possession of drug paraphernalia, and two
protection order violations, serving 10 days in jail in 2018 for
such violations. Roth has a history of drug and alcohol use dat-
ing back to age 14, and Roth reported that his “‘anger’ comes
out” when he drinks. Roth has a volatile history of domestic
violence situations with the victim involved in this case, result-
ing in injuries to both of them in the past and multiple phone
calls to the police. Roth’s assessments indicated that Roth was
considered to be in the high risk range for reoffending, and the
probation office noted that the assessment suggested there was
a high risk to the community for continued victimization.
While the probation office originally recommended proba-
tion due to Roth’s stage of change and stated willingness to
participate in probation, this confidence was shown to be mis-
placed. Roth violated the terms of his probation multiple times,
including reoffending against the same victim, leading to new
felony charges.
The district court recognized the appropriate factors when
imposing Roth’s sentences, and nothing in the record indi-
cates that the court considered anything inappropriate. The
sentences reflect the seriousness of the crimes committed,
Roth’s prior probation violations that required administrative
and custodial sanctions, and Roth’s volatile history with the
victim. Considering the totality of the circumstances, we can-
not say that the district court’s sentences were untenable. We
find the district court did not abuse its discretion in imposing
12
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STATE V. ROTH
Cite as 311 Neb. 1007a total sentence of 3 years’ imprisonment to run consecutive
to other sentences Roth was currently serving at the time of
resentencing.
Post‑Release Supervision
The State argues the court committed plain error by failing
to impose post‑release supervision as part of Roth’s total sen-
tence. We agree.
Plain error may be found on appeal when an error unasserted
or uncomplained of at trial, but plainly evident from the record,
prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and
fairness of the judicial process. 13 Consideration of plain error
occurs at the discretion of an appellate court. 14
[7‑9] A sentence that is contrary to the court’s statutory
authority is an appropriate matter for plain error review. 15 The
power to define criminal conduct and fix its punishment is
vested in the legislative branch, whereas the imposition of a
sentence within these legislative limits is a judicial function. 16
Accordingly, a sentence is illegal when it is not authorized by
the judgment of conviction or when it is greater or less than the
permissible statutory penalty for the crime. 17 And an appellate
court has the power on direct appeal to remand a cause for the
imposition of a lawful sentence where an erroneous one has
been pronounced. 18
[10] Post‑release supervision is a form of probation. 19
Post‑release supervision is defined by statute as “the portion
13
State v. Kipple, supra note 3.
14
State v. Britt, 283 Neb. 600, 813 N.W.2d 434 (2012); State v. Young, 279
Neb. 602, 780 N.W.2d 28 (2010).
15
State v. Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020).
16
State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).
17
State v. Galvan, supra note 15.
18
See State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
19
State v. Galvan, supra note 15.
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STATE V. ROTH
Cite as 311 Neb. 1007of a split sentence following a period of incarceration under
which a person found guilty of a crime . . . is released by a
court subject to conditions imposed by the court and subject
to supervision by the [Office of Probation Administration].” 20
Primarily at issue with respect to the State’s argument of
plain error is Neb. Rev. Stat. § 29‑2204.02 (Reissue 2016),
subsections (1) and (4), and § 28‑105.
The relevant sections of § 29‑2204.02 state:
(1) Except when a term of probation is required by law
as provided in subsection (2) of this section or except
as otherwise provided in subsection (4) of this section,
in imposing a sentence upon an offender for a Class III,
IIIA, or IV felony, the court shall:
(a) Impose a determinate sentence of imprisonment
within the applicable range in section 28‑105; and
(b) Impose a sentence of post‑release supervision, under
the jurisdiction of the Office of Probation Administration,
within the applicable range in section 28‑105.
....
(4) For any sentence of imprisonment for a Class III,
IIIA, or IV felony for an offense committed on or after
August 30, 2015, imposed consecutively or concurrently
with (a) a sentence for a Class III, IIIA, or IV felony for
an offense committed prior to August 30, 2015, or (b) a
sentence of imprisonment for a Class I, IA, IB, IC, ID,
II, or IIA felony, the court shall impose an indeterminate
sentence within the applicable range in section 28‑105
that does not include a period of post‑release supervi-
sion, in accordance with the process set forth in section
29‑2204.
Section 28‑105(1) provides that the minimum sentence
follow­ing a conviction for Class III or IIIA felonies is “none for
imprisonment and nine months post‑release supervision if
20
Neb. Rev. Stat. § 29‑2246(13) (Reissue 2016).
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Cite as 311 Neb. 1007imprisonment is imposed.” It further provides that the maxi-
mum post‑release supervision for Class III and IIIA felo­nies is
2 years and 18 months, respectively. Pursuant to § 28‑105(1),
a sentence of post‑release supervision for a Class IV felony is
a maximum of 12 months, but there is no minimum term of
post‑release supervision for a Class IV felony.
Subsections (6) and (7) of § 28‑105 provide that certain
listed felonies when sentenced concurrently or consecutively
to other listed felonies “shall not be subject to post‑release
supervision”:
(6) Any person who is sentenced to imprisonment for
a Class I, IA, IB, IC, ID, II, or IIA felony and sentenced
concurrently or consecutively to imprisonment for a Class
III, IIIA, or IV felony shall not be subject to post‑release
supervision pursuant to subsection (1) of this section.
(7) Any person who is sentenced to imprisonment for
a Class III, IIIA, or IV felony committed prior to August
30, 2015, and sentenced concurrently or consecutively
to imprisonment for a Class III, IIIA, or IV felony com-
mitted on or after August 30, 2015, shall not be subject
to post‑release supervision pursuant to subsection (1) of
this section.
(8) The changes made to the penalties for Class III,
IIIA, and IV felonies by Laws 2015, LB 605, do not apply
to any offense committed prior to August 30, 2015, as
provided in section 28‑116.
[11,12] In discerning the meaning of a statute, we must
determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the
statute considered in its plain, ordinary, and popular sense,
it being our duty to discover, if possible, the Legislature’s
intent from the language of the statute itself. 21 Components
of a series or collection of statutes pertaining to a certain
21
State v. Hofmann, 310 Neb. 609, 967 N.W.2d 435 (2021).
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Cite as 311 Neb. 1007subject matter are in pari materia and should be conjunc-
tively considered and construed to determine the intent of the
Legislature so that different provisions are consistent, harmo-
nious, and sensible. 22
Section 29‑2204.02(1) plainly states that “except as other­
wise provided in subsection (4) of this section,” in impos-
ing a sentence for a Class III, IIIA, or IV felony, the court
“shall . . . [i]mpose a sentence of post‑release supervision . . .
within the applicable range in section 28‑105.” Subsection
(4), in turn, plainly states that for an offense committed on
or after August 30, 2015, the court “shall impose an inde-
terminate sentence . . . that does not include a period of
post‑release supervision” for any sentence of imprisonment
for a Class III, IIIA, or IV felony that is imposed consecu-
tively or concurrently with a sentence for a Class III, IIIA,
or IV felony for an offense committed before August 30,
2015, or that is imposed consecutively or concurrently with
“a sentence of imprisonment” for a Class I, IA, IB, IC, ID,
II, or IIA felony. 23 Subsections (6) and (7) of § 28‑105 are
worded similarly, although subsection (6) begins with being
sentenced to imprisonment for a Class I, IA, IB, IC, ID, II,
or IIA felony and sentenced concurrently or consecutively to
imprisonment for a Class III, IIIA, or IV felony, rather than
the other way around.
[13,14] As a general rule, the use of the word “shall” is con-
sidered to indicate a mandatory directive, inconsistent with the
idea of discretion. 24 The statutory provisions of §§ 29‑2204.02
and 28‑105 relating to post‑release supervision are mandatory,
and a sentence that fails to impose post‑release supervision
when required is an appropriate matter for our discretionary
plain error review.
22
See id.
23
§ 29‑2203.02.
24
Flores v. Flores‑Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).
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Cite as 311 Neb. 1007The Nebraska Court of Appeals in State v. Lillard 25 explained
that the mandatory language of § 29‑2204.02 is broadly worded
and not limited to multiple sentences imposed at the same
time. Rather, it also applies to preexisting sentences still being
served when a sentence of imprisonment for a Class III, IIIA,
or IV felony for an offense committed on or after August
30, 2015, is imposed. In so reading the statute, the Court of
Appeals was also guided by Neb. Rev. Stat. § 83‑1,135.02(3)
(Cum. Supp. 2016), which provides that § 29‑2204.02 applies
to all committed offenders under sentence, on parole, or on
probation on or after April 20, 2016, and to all persons sen-
tenced on and after such date.
The defendant in Lillard had been simultaneously sentenced
to 2 years’ imprisonment for a Class IV felony committed in
2018 and 3 years’ imprisonment plus 18 months’ post‑release
supervision for a Class IIIA felony committed in 2018, to be
served concurrently, and the court found that he was con-
victed of multiple felonies before 2015 that would fall under
either § 28‑105(6) or § 28‑105(7), as well as the provisions of
§ 29‑2204.02(4). The court agreed with the defendant and the
State that both the imposition of post‑release supervision and
the fact that the sentences were determinate were unauthorized
and invalid. The sentencing court had also erred by failing to
address whether the sentences it imposed were to be served
concurrently or consecutively with the pre‑2015 felonies. The
Court of Appeals vacated the sentences and remanded the
cause for resentencing.
Similarly, with respect to the indeterminacy requirement of
§ 29‑2204.02(4), we recently held in State v. Starks, “[I]t mat-
ters not when the underlying offenses occurred in relation to
each other or that some of the relevant charges were brought
via different charging documents.” 26 Rather:
25
State v. Lillard, 27 Neb. App. 824, 937 N.W.2d 1 (2019).
26
State v. Starks, 308 Neb. 527, 536, 955 N.W.2d 313, 321 (2021).
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Cite as 311 Neb. 1007Section 29‑2204.02(4) is broad enough that it theoreti-
cally could be read to impose an indeterminacy require-
ment upon a Class III, Class IIIA, or Class IV felony
sentence imposed consecutively or concurrently with a
Class I, IA, IB, IC, ID, II, or IIA felony sentence that is
already in progress. What matters under § 29‑2204.02(4)
is that the sentences for those offenses are “imposed con-
secutively or concurrently” to each other. 27
In Starks, the defendant was previously convicted and sentenced
to probation which, after violations of probation, resulted in a
reinstatement of a Class IV felony charge. The violations of
probation included three Class IV felonies and one Class IIA
felony, to which he pled guilty. The court ordered an inde-
terminate sentence of incarceration for the Class IIA felony
conviction but a determinate sentence for each Class IV felony
conviction. All convictions were ordered to run consecutively.
We found the determinate sentences to be plain error, vacated
those sentences, and remanded the cause for resentencing.
While the offenses in Lillard 28 and Starks 29 occurred in
the same county, there is no reason why the same reasoning
would not apply to multiple sentences in different counties.
Neither party asserts that the fact that the sentences here at
issue occurred in different counties is legally relevant to the
application of § 29‑2204.02(4). As we noted in Starks, the
language of § 29‑2204.02(4) is broad. “What matters under
§ 29‑2204.02(4) is that the sentences for those offenses are
‘imposed consecutively or concurrently’ to each other.” 30 The
same can be said of § 28‑105(6).
Thus, as relevant here, for offenses committed on or after
August 30, 2015 (as to all committed offenders under sentence,
27
Id.
28
State v. Lillard, supra note 25.
29
State v. Starks, supra note 26.
30
Id. at 536, 955 N.W.2d at 321.
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Cite as 311 Neb. 1007on parole, or on probation on or after April 20, 2016, and to
all persons sentenced on and after such date), 31 the court has
the mandatory directive to impose a minimum of 9 months’
post‑release supervision when sentencing the defendant to
a term of imprisonment for a Class III or Class IIIA felony,
except when the term of imprisonment for the Class III or
Class IIIA felony is imposed consecutively or concurrently
with a sentence of imprisonment for a Class I, IA, IB, IC,
ID, II, or IIA felony (or with a sentence for a Class III, IIIA,
or IV felony for an offense committed prior to August 30,
2015), in which case the court has a mandatory directive not to
impose post‑release supervision. Roth was sentenced to peri-
ods of incarceration for two Class III felonies and one Class I
misdemeanor. The sentences were ordered to be served con-
secutively to the sentences in Lancaster County District Court
case No. CR 20‑575. As discussed, under § 29‑2204.02(1)(b),
except as otherwise provided in subsection (4), in imposing a
sentence upon an offender for a Class III, IIIA, or IV felony,
the court “shall” impose a sentence of post‑release supervision
within the applicable range in § 28‑105. Under § 28‑105(1) the
minimum sentence following a conviction for Class III or IIIA
felonies is “nine months post‑release supervision if imprison-
ment is imposed.”
It is accordingly plainly evident from the record that Roth’s
sentences fall under §§ 29‑2204.02(1)(b) and 28‑105(1), and
nothing in the record suggests that the exceptions to these
mandates of post‑release supervision apply to Roth’s sentences.
We remind district courts that, as suggested by Justice Cassel
in his concurrence in Starks, “[a] sentencing court should
craft its judgment in each case with some thought regard-
ing how that judgment, viewed in isolation, might appear to
an appellate court.” 32 This may sometimes require that the
31
§ 83‑1,135.02.
32
State v. Starks, supra note 26, 308 Neb. at 537, 955 N.W.2d at 321
(Cassel, J., concurring).
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Cite as 311 Neb. 1007record demonstrate more than just “the sentence(s) imposed
in that case,” 33 because we will not find plain error on appeal
unless it is reasonably certain we have the “whole picture.” 34
However, we are satisfied in this case that we have the whole
picture. The parties agree that the sentences under Lancaster
County District Court case No. CR 20‑575 were for Class I
misdemeanors. Class I misdemeanors do not trigger any excep-
tion to the mandate of post‑release supervision set forth in
§§ 29‑2204.02(1)(b) and 28‑105(1).
The district court committed plain error in failing to fol-
low the statutory requirements of §§ 29‑2204.02 and 28‑105
of a minimum period of 9 months’ post‑release supervision
for the Class III felonies for which periods of incarceration
were imposed. These provisions are mandatory. The court did
not have the discretion to ignore these mandates, whatever its
opinion concerning the value of such supervision for this par-
ticular defendant.
[15] Section 29‑2204.02(7)(b) states that “[i]f a period of
post‑release supervision is required but not imposed by the
sentencing court, the term of post‑release supervision shall
be the minimum provided by law.” Section 29‑2204.02(7)(c)
provides that “[i]f the court imposes more than one sentence
upon an offender or imposes a sentence upon an offender
who is at that time serving another sentence, the court shall
state whether the sentences are to be concurrent or consecu-
tive.” We said in State v. Galvan 35 that the trial court’s dis-
cretion to direct that sentences be served either concurrently
or consecutively applies equally to terms of imprisonment
and terms of post‑release supervision. Further, Neb. Ct. R.
§ 6‑1904 sets forth several requirements in cases requir-
ing a post‑release supervision, including that the court shall
enter a separate post‑release supervision order that includes
33
Id.
34
Id. (internal quotation marks omitted).
35
See State v. Galvan, supra note 15.
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Cite as 311 Neb. 1007conditions pursuant to Neb. Rev. Stat. § 29‑2262 (Reissue
2016) and that the court shall specify on the record that the
conditions of the order of post‑release supervision may be
modified or eliminated pursuant to Neb. Rev. Stat. § 29‑2263
(Reissue 2016). Thus, while it is clear that the term of
post‑release supervision for Roth must be 9 months, we must
remand the cause to the district court.
CONCLUSION
Finding plain error in the court’s failure to impose
post‑release supervision, we vacate the sentences and remand
the cause with directions to modify the sentences to impose
9 months’ post‑release supervision and determine, in accord­
ance with § 28‑105(5) and § 6‑1904, the specific terms of the
post‑release supervision and whether the post‑release supervi-
sion is to be served concurrently or consecutively to any other
terms of post‑release supervision.
Vacated and remanded with directions.