State v. Lantz ( 2015 )

Nebraska Advance Sheets
STATE v. LANTZ 757
Cite as 290 Neb. 757
State of Nebraska, appellee, v.
Ronald L. Lantz, Sr., appellant.
___ N.W.2d ___
Filed April 23, 2015. No. S-14-517.
1. 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.
2. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, which an appellate court reviews independently of the lower court’s
determination.
3. Sentences. Generally, it is within a trial court’s discretion to direct that sentences
imposed for separate crimes be served either concurrently or consecutively.
4. ____. In Nebraska, unless prohibited by statute or unless the sentencing court
states otherwise when it pronounces the sentences, multiple sentences imposed at
the same time run concurrently with each other.
Appeal from the District Court for Jefferson County: Paul
W. Korslund, Judge. Judgment vacated, and cause remanded
with directions.
James R. Mowbray and Kelly S. Breen, of Nebraska
Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Wright, J.
NATURE OF CASE
Ronald L. Lantz, Sr., was convicted of three counts of first
degree sexual assault of a child, a crime which carries a man-
datory minimum sentence. He was sentenced to 15 to 25 years’
imprisonment on each count with two counts to be served
consecutively and the third to be served concurrently with the
other two.
On his direct appeal, the Nebraska Court of Appeals found
plain error in the sentencing, remanded the cause, and ordered
the district court to resentence Lantz to three consecutive
sentences. State v. Lantz, 21 Neb. Ct. App. 679, 842 N.W.2d
Nebraska Advance Sheets
758 290 NEBRASKA REPORTS
216 (2014). On his appeal from the resentencing, we granted
bypass in order to address sentencing for crimes carrying man-
datory minimum penalties.
SCOPE OF REVIEW
[1] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Castillas, 285 Neb. 174, 826 N.W.2d
255 (2013).
[2] Statutory interpretation presents a question of law,
which an appellate court reviews independently of the lower
court’s determination. State v. Smith, 286 Neb. 77, 834 N.W.2d
799 (2013).
FACTS
A jury convicted Lantz on three counts of first degree sexual
assault of a child, defined in Neb. Rev. Stat. § 28-319.01
(Cum. Supp. 2014), which carries a mandatory minimum sen-
tence of 15 years for the first offense. See, § 28-319.01(2);
State v. Lantz, supra. The district court sentenced him to 15
to 25 years’ imprisonment for each offense. Counts I and II
were to run consecutively, whereas count III was to be served
concurrently.
On direct appeal, the State argued that it was plain error to
give Lantz a concurrent sentence for the third count of sexual
assault, because § 28-319.01 prescribed a mandatory mini-
mum sentence and, therefore, each sentence for a conviction
under § 28-319.01 must be served consecutively. The Court
of Appeals agreed with the State and affirmed the convictions
but remanded the cause with directions for the district court to
sentence Lantz consecutively on all three counts. The Court
of Appeals relied on the following language from Castillas:
“Mandatory minimum sentences cannot be served concur-
rently. A defendant convicted of multiple counts each carry-
ing a mandatory minimum sentence must serve the sentence
on each count consecutively.” 285 Neb. at 191, 826 N.W.2d
at 268.
On May 8, 2014, pursuant to the opinion of the Court
of Appeals, the district court resentenced Lantz to 15 to 25
Nebraska Advance Sheets
STATE v. LANTZ 759
Cite as 290 Neb. 757
years’ imprisonment for counts I, II, and III, each to be served
consecutively.
Lantz petitioned this court for further review and assigned
that the Court of Appeals erred in ordering the district court to
resentence him to three consecutive sentences. Lantz asserted
that unlike mandatory minimum sentences for use of a deadly
weapon under Neb. Rev. Stat. § 28-1205 (Cum. Supp. 2014),
which specifically requires that the sentences be served consec-
utively to all other sentences, mandatory minimum sentences
for first degree sexual assault of a child are not required by
§ 28-319.01 to be served consecutively to any other sentence
imposed. We denied further review.
On June 20, 2014, we issued our opinion in State v.
Berney, 288 Neb. 377, 847 N.W.2d 732 (2014). In Berney,
a district court interpreted our decision in Castillas to mean
that a sentence for any crime with a mandatory minimum
sentence must be served consecutively. The court applied the
rule to the two burglary convictions of a defendant who had
been convicted of being a habitual criminal. The court sen-
tenced Matthew Berney to two 10-year minimum sentences,
to be served consecutively. In Berney, 288 Neb. at 382, 847
N.W.2d at 736, we clarified our holding in State v. Castillas,
285 Neb. 174, 826 N.W.2d 255 (2013), stating, “We were
not speaking of enhancements under the habitual criminal
statute, but of those specific crimes that required a manda-
tory minimum sentence to be served consecutively to other
sentences imposed.”
Lantz now argues that our holding in Berney conflicts with
the Court of Appeals’ decision in State v. Lantz, 21 Neb. Ct. App.
679, 842 N.W.2d 216 (2014), and that the district court had
discretion to impose concurrent sentences. Lantz’ fundamental
argument is that § 28-319.01 does not prescribe that sentences
for crimes under that section be served consecutively in the
same manner as provided under § 28-1205(3) and that there-
fore, the district court retains its discretion to order concur-
rent sentences.
We granted bypass on Lantz’ appeal.
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760 290 NEBRASKA REPORTS
ASSIGNMENT OF ERROR
Lantz assigns that the Court of Appeals erred in ordering the
district court to resentence his three convictions to be served
consecutively to each other because § 28-319.01 does not
require sentences to be served consecutively.
ANALYSIS
We are presented with a question of statutory interpreta-
tion. The question is whether a defendant convicted of mul-
tiple crimes each carrying a mandatory minimum sentence
must serve the sentence on each crime consecutively. Based
upon our statements in State v. Castillas, 285 Neb. 174, 826
N.W.2d 255 (2013), the Court of Appeals concluded that
mandatory minimum sentences cannot be served concurrently.
See State v. Lantz, supra. Five months after the Court of
Appeals’ opinion was filed, we released our decision in State
v. Berney, supra.
Berney pled no contest to two counts of burglary. His crimes
were enhanced under the habitual criminal statute, which pro-
vides that each crime enhanced under that statute carries a
mandatory minimum sentence of 10 years. See Neb. Rev. Stat.
§ 29-2221(1) (Reissue 2008). Berney was sentenced to the
mandatory minimum of 10 years for each conviction, and the
court ordered the sentences to be served consecutively. Based
on its interpretation of State v. Castillas, supra, the lower court
concluded it was required to order the sentences to be served
consecutively. Berney appealed, claiming the court abused its
discretion by imposing consecutive sentences on the enhanced
convictions. We affirmed his convictions and sentences of
10 to 10 years’ imprisonment on each conviction, but we
remanded the cause to the sentencing court for a determination
of whether the sentences were to be served concurrently or
consecutively. See State v. Berney, supra.
Because of the conflict between our opinion in State v.
Berney, supra, and the Court of Appeals’ opinion in State v.
Lantz, supra, we granted bypass of Lantz’ appeal from his
sentencing to three consecutive sentences of 15 to 25 years’
imprisonment for each conviction of first degree sexual assault
of a child.
Nebraska Advance Sheets
STATE v. LANTZ 761
Cite as 290 Neb. 757
The Court of Appeals, using the above language from our
decision in State v. Castillas, supra, found plain error because
the district court did not sentence Lantz to three consecutive
sentences. The Court of Appeals’ decision was filed after our
opinion in Castillas but before we filed our decision in State
v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014). In Berney,
we distinguished and limited our holding in Castillas to those
specific crimes that required a mandatory minimum sentence
to be served consecutively to all other sentences imposed. We
noted there was a distinction between (1) a conviction for a
crime that requires both a mandatory minimum sentence and
mandates consecutive sentencing and (2) the enhancement of
the penalty for a crime under the habitual criminal statute. See
State v. Berney, supra. In the former, the mandatory sentence
must be served consecutively to any other sentence imposed
because the statute for that crime requires it. In the latter, the
statute does not require the enhanced penalty to be served con-
secutively to any other sentence imposed, and therefore, the
sentence is left to the discretion of the court. Since Berney was
convicted of burglary, which did not require a mandatory mini-
mum sentence, the punishment enhanced under the habitual
criminal statute did not require the enhanced penalties to be
served consecutively.
The tension between Berney and Lantz was created by the
overly broad language used in State v. Castillas, 285 Neb.
174, 826 N.W.2d 255 (2013). David Castillas was convicted
of two counts of discharging a firearm at a dwelling while in
or near a motor vehicle, one count of second degree assault,
and three counts of use of a firearm to commit a felony. The
aggregate sentences amounted to 30 to 80 years: 5 to 20 years
in prison on each conviction of discharging a firearm, 5 to 10
years in prison on the conviction of second degree assault,
and 5 to 10 years in prison on each conviction of use of a
weapon to commit a felony. The court ordered all sentences
to be served consecutively. At sentencing, the court advised
Castillas that he would be parole eligible in 25 years and that,
if he lost no “good time,” he would be released after 40 years.
On appeal, Castillas assigned, inter alia, that the court erred
Nebraska Advance Sheets
762 290 NEBRASKA REPORTS
in ordering a sentence that was substantially different from its
intended sentence.
Only the conviction of second degree assault did not carry
a mandatory minimum sentence of 5 years in prison. Each
of the three sentences for use of a weapon under § 28-1205
were required by statute to be served consecutively to all
other sentences.
Because all the sentences were ordered to be served con-
secutively, the only good time that could be earned was on the
5-year sentence for second degree assault, which was Castillas’
only conviction not carrying a mandatory minimum. Neb.
Rev. Stat. § 83-1,110 (Reissue 2014) provides that good time
reductions do not apply to mandatory minimum sentences. We
concluded that the trial court had erred in telling Castillas that
he would be eligible for parole in 25 years, because he would
have to serve a minimum of 271⁄2 years before parole eligibil-
ity. We affirmed the sentences because Castillas was given
valid sentences, even though the sentences were contrary to
the court’s stated intent. But our language was overly broad
regarding our discussion of mandatory minimum sentences.
“Mandatory minimum sentences cannot be served concurrently.
A defendant convicted of multiple counts each carrying a man-
datory minimum sentence must serve the sentence on each
count consecutively.” Castillas, 285 Neb. at 191, 826 N.W.2d
at 268. We clarified this statement in Berney, 288 Neb. at 382-
83, 847 N.W.2d at 736, stating:
We were not speaking of enhancements under the habitual
criminal statute, but of those specific crimes that required
a mandatory minimum sentence to be served consecu-
tively to other sentences imposed.
There is a distinction between a conviction for a crime
that requires both a mandatory minimum sentence and
mandates consecutive sentences, and the enhancement of
the penalty for a crime because the defendant is found
to be a habitual criminal. In the former, the mandatory
minimum sentence must be served consecutively to any
other sentence imposed, because the statute for that crime
requires it. In the latter, the law does not require the
enhanced penalty to be served consecutively to any other
Nebraska Advance Sheets
STATE v. LANTZ 763
Cite as 290 Neb. 757
sentence imposed. The sentence is left to the discretion of
the court.
To the extent that our language in Castillas can be inter-
preted to mean that all convictions carrying a mandatory
minimum sentence must be served consecutively to all other
sentences, such interpretation is expressly disapproved.
With that said, we proceed to Lantz’ claim that it was error
to order the district court to sentence him to three consecutive
sentences for first degree sexual assault of a child. In State
v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), we were
speaking of those specific crimes that require a mandatory min-
imum sentence to be served consecutively to other sentences
imposed. Our overly broad language, upon which the Court of
Appeals relied, was misleading.
[3,4] Generally, it is within a trial court’s discretion to direct
that sentences imposed for separate crimes be served either
concurrently or consecutively. State v. Policky, 285 Neb. 612,
828 N.W.2d 163 (2013). In Nebraska, unless prohibited by
statute or unless the sentencing court states otherwise when it
pronounces the sentences, multiple sentences imposed at the
same time run concurrently with each other. State v. King, 275
Neb. 899, 750 N.W.2d 674 (2008).
Our conclusion reflects our deference to the Legislature’s
intent in statutorily prescribing criminal penalties. The
Legislature included a provision in § 28-1205 expressly requir-
ing consecutive sentencing, but it did not do so in other sec-
tions of the criminal code imposing mandatory minimum
sentences. Additionally, the Legislature provided very spe-
cific penalty guidelines for mandatory minimum sentences in
§ 83-1,110(1).
Together, the above statutes demonstrate that the Legislature
uses very specific language to prescribe sentencing guidelines.
Therefore, we conclude that the exclusion of a requirement
that all mandatory minimum sentences be served consecu-
tively was intended to leave this issue to the discretion of the
trial court.
Consequently, we find that it was not plain error for the dis-
trict court to sentence Lantz concurrently for his third convic-
tion under § 28-319.01.
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CONCLUSION
For the reasons stated above, we vacate the district court’s
May 8, 2014, resentencing order and we remand the cause with
directions to reinstate the original sentences imposed by the
district court ordering that the sentences for counts I and II
be served consecutively and that the sentence for count III be
served concurrently.
Judgment vacated, and cause
remanded with directions.
Melanie M., individually and as next friend of
Gaige M. et al., her minor children, appellant,
v. K erry T. Winterer and Ryan C. Gilbride,
in their individual and official capacities
as employees and agents of the State of
Nebraska, Department of Health and
Human Services, and the State of
Nebraska, Department of Health
and Human Services, appellees.
___ N.W.2d ___
Filed April 23, 2015. No. S-14-538.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was
granted, and gives that party the benefit of all reasonable inferences deducible
from the evidence.
3. Administrative Law: Statutes: Appeal and Error. To the extent that the mean-
ing and interpretation of statutes and regulations are involved, questions of law
are presented which an appellate court decides independently of the decision
made by the court below.
4. Constitutional Law: Due Process. The process required under the Due Process
Clause of the 14th Amendment is that necessary to provide “fundamental fair-
ness” under the particular facts of the case.