State v. Chacon , 296 Neb. 203 ( 2017 )

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296 Nebraska R eports
STATE v. CHACON
Cite as 296 Neb. 203
State of Nebraska, appellee, v.
Jesus A. Chacon, appellant.
___ N.W.2d ___
Filed March 31, 2017. Nos. S-16-419, S-16-425.
1. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether the 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.
2. Sentences. When imposing a sentence, the sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education and expe-
rience, (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 violence involved in the
commission of the offense. The sentencing court is not limited to any
mathematically applied set of factors.
3. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
4. Appeal and Error. An appellate court always reserves the right to note
plain error which was not complained of at trial or on appeal.
5. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the lower
court’s determination.
6. ____: ____. Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpretation to
ascertain the meaning of statutory words which are plain, direct, and
unambiguous.
7. Statutes. It is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it within the
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STATE v. CHACON
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province of a court to read anything plain, direct, or unambiguous out
of a statute.
8. Statutes: Legislature: Intent. In reading a statute, a court must deter-
mine 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.
9. ____: ____: ____. 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.
10. Criminal Law: Statutes: Legislature: Sentences. Generally, when the
Legislature amends a criminal statute by mitigating the punishment after
the commission of a prohibited act but before final judgment, the pun-
ishment is that provided by the amendatory act unless the Legislature
specifically provided otherwise.
11. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
Appeals from the District Court for Hall County: John P.
Icenogle, Judge. Judgment in No. S-16-419 affirmed. Judgment
in No. S-16-425 affirmed in part and in part vacated, and cause
remanded with directions.
Matthew A. Works, Deputy Hall County Public Defender,
for appellant.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
K elch, J.
INTRODUCTION
In these consolidated appeals, Jesus A. Chacon challenges
his sentences for his convictions of two counts of possession
of a controlled substance and one count of driving under the
influence. In both cases, Chacon assigns that his sentences
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STATE v. CHACON
Cite as 296 Neb. 203
were excessive. We affirm Chacon’s sentence for possession
of a controlled substance in case No. S-16-419 and his sen-
tence for driving under the influence in case No. S-16-425.
However, based on our analysis of 2015 Neb. Laws, L.B. 605,
and 2016 Neb. Laws, L.B. 1094, we vacate Chacon’s sentence
for possession of a controlled substance in case No. S-16-425
and remand the cause for resentencing in accordance with
this opinion.
BACKGROUND
In case No. S-16-419, the State brought criminal charges
against Chacon as a result of events that occurred on July 16,
2015. The State’s information charged that on July 16, Chacon
(1) criminally impersonated another person and (2) possessed a
controlled substance, methamphetamine.
Case No. S-16-425 arises from events that occurred on
December 28, 2015. The State’s information alleged that on
that date, Chacon unlawfully (l) possessed a controlled sub-
stance, methamphetamine; (2) tampered with physical evi-
dence; (3) operated a motor vehicle while under the influence,
second offense; and (4) operated a motor vehicle during a
period of revocation, second offense.
On January 29, 2016, pursuant to a plea agreement encom-
passing both cases Nos. S-16-419 and S-16-425, and a third
case not at issue on this appeal, Chacon pled no contest to
the two Class IV felony charges of possession of a controlled
substance and the single Class W misdemeanor charge of driv-
ing under the influence, second offense. In return for Chacon’s
pleas, the State agreed to dismiss all other charges and to
recommend concurrent sentences for all convictions resulting
from the two cases now on appeal.
According to the factual basis provided by the State, on July
16, 2015, law enforcement officers in Hall County, Nebraska,
made contact with Chacon at a residence regarding loud music.
When officers arrived, Chacon was at his vehicle. Chacon ini-
tially identified himself with a false name, but after a search
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STATE v. CHACON
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of the false name returned warrants and prompted officers
to place Chacon under arrest, he admitted that his name was
“Jesus Chacon” and that the initial name he had given was
inaccurate. An officer observed a baggie in the front seat of
Chacon’s vehicle containing a white crystal-like substance
which the officer believed to be methamphetamine. A search
of Chacon’s correct name showed multiple warrants, and he
was arrested and transported to Hall County jail. Subsequent
testing of the crystal-like substance returned a positive result
for methamphetamine, weighing 2.3 grams.
On December 28, 2015, officers in Hall County observed
a vehicle fail to yield and then execute two turns without sig-
naling. Officers initiated a traffic stop and made contact with
Chacon, who was driving the vehicle. A license check revealed
that Chacon’s license was suspended. Officers observed that
Chacon had bloodshot eyes and “rancid” breath; and Chacon
was grinding his teeth and had rigid muscle tone, indicative
of a person under the influence of a stimulant drug. Officers
further observed a plastic baggie between the front passenger
door and the passenger seat.
Chacon performed poorly on field sobriety tests. A pre-
liminary breath test showed no alcohol content in his breath.
Officers arrested Chacon and transported him to Hall County
jail, where he was determined to be under the influence of
a drug. A search of Chacon’s vehicle revealed methamphet-
amine. Officers also searched Chacon’s person and discov-
ered a coin-sized Ziploc bag containing methamphetamine in
his pocket.
The district court accepted Chacon’s pleas of no contest to
possession of a controlled substance in cases Nos. S-16-419
and S-16-425 and his plea of no contest to driving under the
influence in case No. S-16-425. Regarding enhancement, the
parties stipulated that the driving under the influence offense
was a second offense and that Chacon had previously been
convicted of driving under the influence in Dawson County,
Nebraska, on June 19, 2014. The district court enhanced the
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penalty to driving under the influence, second offense, and
then found Chacon guilty of all three charges. The district court
ordered a presentence investigation and scheduled sentencing
for March 30, 2016.
Chacon was 45 years old at the time of the presentence
investigation. He had graduated from high school and had
worked in the construction and meatpacking industries, but
had been unemployed since 2014. According to the presen-
tence investigation, Chacon was divorced, with one child,
age 16, residing with her mother in Arizona. Chacon reported
that his closest companions served as positive supporters
in his life and did not have issues with substance abuse or
prior arrests.
The presentence investigation revealed that Chacon has
a long criminal history beginning in 1992, with charges
filed in at least 18 prior incidents. Chacon’s criminal his-
tory includes three convictions related to theft, three previ-
ous convictions for driving under the influence, and four
previous convictions for driving under suspension and/or
revocation or without an operator’s license. Further, at the
time of the presentence investigation, Chacon had an open
charge for second degree assault, a Class IV felony offense,
in Dawson County. The presentence investigation noted that
although the criminal impersonation charge was dismissed in
this case pursuant to the plea deal, Chacon’s record shows
several aliases.
Chacon had previously been sentenced to probation at least
four times, but he reoffended during at least three of those
terms, in 1992 and 2015. Chacon was court-ordered to com-
plete a drug assessment in 2014 but did not attend that appoint-
ment. The presentence investigation rated him as an overall
high risk for recidivism, with high risk in the categories of
criminal history and procriminal attitude, and very high risk in
the category of drug and/or alcohol abuse.
The presentence investigation also described significant
mental health issues. Chacon experienced suicidal ideation
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STATE v. CHACON
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in 2007 when his marriage ended and again in 2014 when
his girlfriend ended their relationship. During these periods,
Chacon used cocaine or methamphetamine “to cope.” The
presentence investigation reflects that Chacon had been hos-
pitalized and committed due to his mental health issues, but
he refused to engage in the treatment process and did not con-
nect his mental health issues with his drug use. At the time of
the presentence investigation, Chacon was taking antidepres-
sant medication. Chacon reported that he would participate in
any recommended treatment for substance abuse. The presen-
tence investigation anticipated that Chacon’s inability to speak
English could hinder his recovery.
On March 30, 2016, the district court conducted a sen-
tencing hearing for both cases. The record demonstrates that
in imposing its sentences, the district court heard evidence
regarding Chacon’s history and character, as well as the nature
and circumstances of each crime. The district court found that
a sentence of probation would be unsuitable for protecting the
public, because Chacon had a history of failed probationary
sentences and would be best served by a treatment program
facilitated by a correctional institution.
In case No. S-16-419, the case arising from the July 16,
2015, possession offense, the district court sentenced Chacon to
a period of incarceration with the Department of Correctional
Services for 20 months to 5 years.
In case No. S-16-425, the case arising from the December
28, 2015, offenses, the district court sentenced Chacon to 2
years’ imprisonment with 12 months of postrelease supervi-
sion for possession of a controlled substance. For driving
under the influence, the district court sentenced Chacon to
6 months’ incarceration, fined him $500, and suspended his
driving privileges for 18 months. Chacon was given credit
for 135 days of time served against his sentences in case
No. S-16-425.
The district court sentenced Chacon concurrently on all
three convictions.
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STATE v. CHACON
Cite as 296 Neb. 203
Chacon now appeals his sentences in cases Nos. S-16-419
and S-16-425. We granted the State’s motion to consolidate
the appeals.
ASSIGNMENT OF ERROR
In both cases, Chacon assigns that the district court imposed
excessive sentences.
ANALYSIS
Possession of Controlled Substance
in Case No. S-16-419:
No A buse of Discretion
In case No. S-16-419, Chacon assigns and argues that the
district court imposed an excessive sentence for possession of
a controlled substance. However, he concedes, and we agree,
that his sentence on that charge falls within the statutory limits.
The criminal activity underlying case No. S-16-419 occurred
in July 2015. As a result, Chacon pled no contest to posses-
sion of a controlled substance, a Class IV felony, in violation
of Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2014). For acts
committed prior to August 30, 2015, a Class IV felony is
punishable by up to 5 years’ imprisonment, a $10,000 fine,
or both. See Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014)
and § 28-105(7) (Supp. 2015). See, also, State v. Aguallo, 294
Neb. 177, 881 N.W.2d 918 (2016) (changes made to penalties
for Class IV felonies by L.B. 605 do not apply to any offense
committed prior to August 30, 2015). Accordingly, Chacon’s
sentence of 20 months’ to 5 years’ incarceration falls within
the statutory limits.
[1-3] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the 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. State v. Oldson, 293 Neb. 718, 884 N.W.2d
10 (2016). When imposing a sentence, the sentencing judge
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STATE v. CHACON
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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 violence involved in the commission of the
offense. Id. The sentencing court is not limited to any math-
ematically applied set of factors. Id. The appropriateness of a
sentence is necessarily a subjective judgment and includes the
sentencing judge’s observation of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding
the defendant’s life. Id.
The record demonstrates that the district court sufficiently
considered Chacon’s background and the aforementioned fac-
tors in imposing Chacon’s sentence in case No. S-16-419. At
the sentencing hearing, the district court noted that a sentence
of probation would not adequately protect the public in light
of Chacon’s past history of failing to comply with probation
and his need for inpatient substance abuse treatment. Further,
the district court ordered Chacon’s presentence investigation,
which reveals a criminal history spanning decades and details
a failure to succeed on probation or take advantage of treat-
ment opportunities.
Given these considerations, the district court properly exer-
cised its discretion in imposing Chacon’s sentence for posses-
sion of a controlled substance in case No. S-16-419. See State
v. Oldson, supra.
Possession of Controlled Substance
in Case No. S-16-425:
Plain Error
Chacon assigns and argues that the district court imposed
an excessive sentence for possession of a controlled substance
in case No. S-16-425. He acknowledges that the sentence
imposed was within the statutory limits in effect at that time,
but he asserts that the district court nonetheless abused its
discretion because, under the factors to be considered in
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sentencing, the circumstances support a lesser penalty. As we
explain below, we agree that the district court acted within
the statutory limits in effect at the time when it sentenced
Chacon to 2 years’ imprisonment with 12 months of postrelease
supervision for possession of a controlled substance in case
No. S-16-425. However, considering again, as we did above,
Chacon’s criminal history, failed attempts at probation, and
past resistance to treatment, we find that the district court did
not abuse its discretion in sentencing him on this conviction.
See State v. Oldson, supra.
[4] However, an appellate court always reserves the right
to note plain error which was not complained of at trial or
on appeal. State v. Samayoa, 292 Neb. 334, 873 N.W.2d 449
(2015). With respect to Chacon’s felony sentence in case
No. S-16-425, the State opines that plain error has occurred
due to the doctrine enunciated in State v. Randolph, 186
Neb. 297, 183 N.W.2d 225 (1971), and the interplay between
L.B. 605 and L.B. 1094, the latter of which took effect after
Chacon’s sentence. We agree.
[5-9] We begin by recounting the principles that govern our
analysis. Statutory interpretation presents a question of law,
which an appellate court reviews independently of the lower
court’s determination. State v. Draper, 289 Neb. 777, 857
N.W.2d 334 (2015); State v. Smith, 286 Neb. 77, 834 N.W.2d
799 (2013). Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are
plain, direct, and unambiguous. State v. Raatz, 294 Neb. 852,
885 N.W.2d 38 (2016). It is not within the province of a court
to read a meaning into a statute that is not warranted by the
language; neither is it within the province of a court to read
anything plain, direct, or unambiguous out of a statute. Id. In
reading 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 considered in its plain, ordinary,
and popular sense. Id. Components of a series or collection
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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 pro-
visions are consistent, harmonious, and sensible. Id.
L.B. 605 became effective on August 30, 2015, prior to
sentencing in the instant case and prior to the events that led
the State to charge Chacon with possession of a controlled sub-
stance in case No. S-16-425. L.B. 605 amended Neb. Rev. Stat.
§ 29-2260(5) (Supp. 2015), which provided:
For all sentences of imprisonment for Class III, IIIA,
or IV felonies, other than those imposed consecutively
or concurrently with a sentence to imprisonment for
a Class I, IA, IB, IC, ID, II, or IIA felony, the court
shall impose a determinate sentence within the appli-
cable range in section 28-105, including a period of post-
release supervision.
(Emphasis supplied.) Therefore, at the time Chacon was sen-
tenced, Nebraska law required prison sentences for Class IV
felonies, except for those sentenced concurrently or consecu-
tively with higher class felonies, to be determinate with a period
of postrelease supervision. See § 29-2260(5). On March 30,
2016, the district court sentenced Chacon concurrently for two
Class IV felonies and a Class W misdemeanor. Thus, Chacon
was not sentenced for a Class IV felony that was imposed
consecutively or concurrently with a higher class felony. As of
the date of Chacon’s sentencing for the Class IV felony in case
No. S-16-425, § 28-105(1) and (7) (Supp. 2015) authorized a
maximum penalty of 2 years’ imprisonment with 12 months’
postrelease supervision, a $10,000 fine, or both. Accordingly,
the district court’s determinate sentence of 2 years’ imprison-
ment with a 12-month period of postrelease supervision fell
within the statutory limits and followed the proper procedure
for Class IV felonies as outlined in § 29-2260(5) at the time
of sentencing.
However, on April 20, 2016, after sentencing, but while
this matter was pending on appeal, L.B. 1094 took effect.
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L.B. 1094 struck subsection (5) from § 29-2260 and added
Neb. Rev. Stat. § 29-2204.02(4) (Reissue 2016), which
provides:
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 indeter-
minate sentence within the applicable range in section
28-105 that does not include a period of post-release
supervision, in accord­ance with the process set forth in
section 29-2204.
(Emphasis supplied.) Had Chacon been sentenced pursuant
to L.B. 1094, he would have received an indeterminate sen-
tence without postrelease supervision for possession of a con-
trolled substance in case No. S-16-425. This penalty, without
postrelease supervision, would have been more favorable to
Chacon than the sentence he received under the statute in
effect at the time of sentencing.
[10] Under the Randolph doctrine, generally, when the
Legislature amends a criminal statute by mitigating the punish-
ment after the commission of a prohibited act but before final
judgment, the punishment is that provided by the amend­atory
act unless the Legislature specifically provided otherwise. See
State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971). But,
the Randolph doctrine does not apply if the Legislature cre-
ated a “new crime” rather than merely changing the penalty
for an existing crime. See State v. Duncan, 291 Neb. 1003, 870
N.W.2d 422 (2015).
Chacon’s sentence for possession of a controlled sub-
stance in case No. S-16-425 fits the criteria contemplated by
the Randolph doctrine. We have already explained that the
application of L.B. 1094 would mitigate Chacon’s sentence,
which is not yet final, given that this direct appeal is still
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pending. See State v. Duncan, supra (sentence on appeal is
not final judgment until entry of final mandate). Furthermore,
L.B. 1094’s sentencing changes to Class IV felonies do not
constitute a “new crime,” and the Legislature did not specifi-
cally provide that the changes wrought by L.B. 1094 ought
not apply retroactively to Class IV felonies that predate it.
Indeed, Neb. Rev. Stat. § 83-1,135.02 (Cum. Supp. 2016)
provides that L.B. 1094’s amendments to § 29-2204.02 “apply
to all committed offenders under sentence, on parole, or on
probation on or after April 20, 2016.” Chacon was a commit-
ted offender under sentence as of April 20, 2016, L.B. 1094’s
effective date.
Although L.B. 1094 was not in effect at the time of sen-
tencing, the plain language of the statute and the Randolph
doctrine compel us to apply it to Chacon’s sentence for pos-
session of a controlled substance in case No. S-16-425. As a
matter of plain error, therefore, we conclude that Chacon is
entitled to retroactive relief under L.B. 1094. Consequently,
we vacate Chacon’s sentence for possession of a controlled
substance in case No. S-16-425 and remand the cause for
resentencing consistent with § 29-2204.02(4) and the stan-
dard set forth in State v. Artis, ante p. 172, ___ N.W.2d ___
(2017), wherein we recently explained L.B. 1094’s practi-
cal impact on sentencing for Class IV felonies pursuant to
§ 29-2404.02(4).
Driving Under Influence in S-16-425:
Not Assigned and A rgued
[11] In case No. S-16-425, Chacon was sentenced for both
possession of a controlled substance and driving under the
influence. Chacon’s brief in case No. S-16-425 assigns that
“[t]he sentence imposed in this case was excessive.” However,
Chacon’s brief argues only that his sentence for possession of
a controlled substance was excessive. An alleged error must
be both specifically assigned and specifically argued in the
brief of the party asserting the error to be considered by an
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appellate court. State v. Filholm, 287 Neb. 763, 848 N.W.2d
571 (2014). Accordingly, we do not consider the propriety
of Chacon’s sentence for driving under the influence in case
No. S-16-425.
CONCLUSION
In case No. S-16-419, we find that the district court did not
abuse its discretion in sentencing Chacon for possession of a
controlled substance, and we affirm. In case No. S-16-425, we
also affirm Chacon’s sentence for driving under the influence.
However, in light of our application of the Randolph doctrine
to L.B. 1094, we vacate Chacon’s sentence for possession of
a controlled substance in case No. S-16-425 and remand the
cause for resentencing in accordance with this opinion.
Judgment in No. S-16-419 affirmed.
Judgment in No. S-16-425 affirmed in part
and in part vacated, and cause remanded
with directions.