State v. Russell ( 2015 )

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STATE v. RUSSELL
Cite as 291 Neb. 33
State of Nebraska, appellee, v.
Cory L. Russell, appellant.
___ N.W.2d ___
Filed June 5, 2015. No. S-14-927.
1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the determination made by the
court below.
2. Pleas: Appeal and Error. A trial court is given discretion as to whether
to accept a guilty plea, and an appellate court will overturn that decision
only where there is an abuse of discretion.
3. Sentences: Sexual Assault. For purposes of the authorized limits of
an indeterminate sentence under Neb. Rev. Stat. § 29-2204(1)(a)(ii)(A)
(Cum. Supp. 2014), both “mandatory minimum” as used in Neb. Rev.
Stat. § 28-319.01(2) (Cum. Supp. 2014) and “minimum” as used in
Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014) in regard to a Class IB
felony mean the lowest authorized minimum term of the indetermi-
nate sentence.
4. Sentences: Probation and Parole. A person convicted of a felony
for which a mandatory minimum sentence is prescribed is not eligible
for probation.
5. Sentences. Good time reductions do not apply to mandatory mini-
mum sentences.
6. Sentences: Probation and Parole: Sexual Assault. The mandatory
minimum required by Neb. Rev. Stat. § 28-319.01(2) (Cum. Supp. 2014)
affects both probation and parole.
7. Pleas. In order to support a finding that a plea of guilty or no contest
has been entered freely, intelligently, voluntarily, and understandingly,
among other requirements the record must establish that the defend­
ant knew the range of penalties for the crime with which he or she
is charged.
8. Statutes: Presumptions: Legislature: Intent: Appeal and Error. In
construing a statute, appellate courts are guided by the presumption
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that the Legislature intended a sensible rather than absurd result in
enacting the statute.
9. Sentences: Sexual Assault. The range of penalties for sexual assault
of a child in the first degree, first offense, under Neb. Rev. Stat.
§ 28-319.01(2) (Cum. Supp. 2014), is 15 years’ to life imprisonment.
10. Sentences. A court’s failure to advise a defendant of the correct statu-
tory minimum and maximum penalties does not automatically war-
rant reversal.
11. Sentences: Probation and Parole. In the event of a discrepancy
between the statement of the minimum limit of a sentence and the state-
ment of parole eligibility, the statement of the minimum limit controls
the calculation of an offender’s term.
12. Sentences. The meaning of a sentence is, as a matter of law, determined
by the contents of the sentence itself.
13. Judges: Sentences: Probation and Parole. A trial judge’s incorrect
statement regarding time for parole eligibility is not part of the sentence
and does not evidence ambiguity in the sentence imposed.
Appeal from the District Court for Colfax County: M ary C.
Gilbride, Judge. Affirmed.
Bryan C. Meismer for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Cassel, J.
INTRODUCTION
Cory L. Russell appeals from his plea-based conviction and
sentence for sexual assault of a child in the first degree. He
argues that because he was not correctly advised of the 15-year
“mandatory minimum,” his plea was not entered knowingly.
To resolve the appeal, we (1) explain the distinction, in this
context, between “minimum” and “mandatory minimum”; (2)
determine the correct range of penalties; (3) conclude that the
error was not prejudicial; and (4) describe why the different
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good time calculation for a “mandatory minimum” does not
affect the validity of the plea.
BACKGROUND
The controlling statute states, “Sexual assault of a child in
the first degree is a Class IB felony with a mandatory minimum
sentence of fifteen years in prison for the first offense.”1 The
general statute prescribing the range of penalties for a Class IB
felony specifies a “[m]inimum” of 20 years’ imprisonment and
a “[m]aximum” of life imprisonment.2
The State filed an information charging Russell with 27
counts of sexual assault of a child in the first degree. Pursuant
to a plea agreement, the State agreed to file an amended infor-
mation charging Russell with only one count of that offense
in return for Russell’s plea of no contest to the charge. The
amended information did not allege that Russell had any
prior convictions.
Prior to accepting Russell’s plea, the district court advised
Russell that the crime “carries a minimum of 20 years[’] incar-
ceration and a maximum of life.” The court accepted Russell’s
plea of no contest and adjudged him guilty of sexual assault of
a child in the first degree.
At the sentencing hearing, the district court stated that the
offense carried “a mandatory minimum of at least 20 years.”
The court imposed a sentence of 40 to 50 years’ imprisonment.
The court advised Russell that he “must serve 20 years, less
332 days served on the minimum term before you would be
eligible for parole, and 25 years, less 332 days served on the
maximum term before mandatory release.”
Russell timely appealed, and we moved the case to our
docket under our statutory authority to regulate the caseloads
of the appellate courts of this state.3
1
Neb. Rev. Stat. § 28-319.01(2) (Cum. Supp. 2014).
2
See Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014).
3
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
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ASSIGNMENT OF ERROR
Russell assigns that the district court erred by not properly
advising him of the crime’s range of penalties prior to the
acceptance of his plea.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the determination made by the
court below.4
[2] A trial court is given discretion as to whether to accept
a guilty plea, and an appellate court will overturn that decision
only where there is an abuse of discretion.5
ANALYSIS
Meaning of “M andatory Minimum”
In order to address Russell’s assignment of error, we must
determine the specific meaning of the phrase “mandatory
minimum sentence” in § 28-319.01(2). From one context to
another, the meaning of the term “mandatory minimum” can
vary. In some instances, it may be a term of art, while in
other circumstances, it may be used only in the general sense
of the two words. For example, a “minimum” prescribed by
§ 28-105 can be described as “mandatory” in the sense that a
judge is not authorized to impose an indeterminate sentence of
imprisonment having a minimum term which is less than the
statutorily authorized minimum sentence.6 We have previously
stated that a court must advise a defendant of any mandatory
minimum sentence that will apply.7 But in none of those cases
were we faced with a “mandatory minimum sentence” in the
4
State v. Covey, 290 Neb. 257, 859 N.W.2d 558 (2015).
5
State v. Williams, 276 Neb. 716, 757 N.W.2d 187 (2008).
6
See Neb. Rev. Stat. § 29-2204(1)(a)(ii) (Cum. Supp. 2014).
7
See, e.g., State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 (2002); State v.
Spiegel, 239 Neb. 233, 474 N.W.2d 873 (1991); State v. Stastny, 223 Neb.
903, 395 N.W.2d 492 (1986).
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sense that the only consequences were to prohibit probation
eligibility and to deny any good time prior to service of the
mandatory minimum term. Those consequences did not exist in
statute for a felony offense until 1995.8 Thus, we must explain
the differences and similarities between the terms in the spe-
cific statutes before us.
[3] For purposes of the authorized limits of an indetermi-
nate sentence under § 29-2204(1)(a)(ii)(A), both “mandatory
minimum” as used in § 28-319.01(2) and “minimum” as used
in § 28-105 in regard to a Class IB felony mean the lowest
authorized minimum term of the indeterminate sentence. Thus,
in that sense, there is no difference between the two.
But the Legislature has prescribed different consequences
regarding probation and parole, depending upon whether the
bottom end of a sentence is a “minimum” or a “mandatory
minimum.” Under current law regarding the specific statutes
before us, there are two significant differences between a
“minimum” and a “mandatory minimum.”
[4] First, a court cannot place the convicted offender on
probation. We have said that whether probation or incarcera-
tion is ordered is a choice within the discretion of the trial
court, whose judgment denying probation will be upheld in
the absence of an abuse of discretion.9 Thus, with respect to
the “minimum” required for a Class IB felony under § 28-105,
a court is generally authorized to suspend the sentence and
impose a term of probation.10 But a person convicted of a
felony for which a mandatory minimum sentence is prescribed
is not eligible for probation.11 Because § 28-319.01(2) imposes
a mandatory minimum of 15 years’ imprisonment for sexual
assault of a child in the first degree, a sentence to probation is
not authorized.
8
See 1995 Neb. Laws, L.B. 371, §§ 2 and 21.
9
State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
10
See, generally, Neb. Rev. Stat. § 29-2262 (Cum. Supp. 2014); State v.
Hylton, 175 Neb. 828, 124 N.W.2d 230 (1963).
11
§ 28-105(4).
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[5] The second consequence is that the offender will not
receive any good time for the entire duration of the mandatory
minimum. Good time reductions do not apply to mandatory
minimum sentences.12 This has consequences for the good
time calculations for both the minimum and maximum terms
of an indeterminate sentence. We have held that in calculat-
ing parole eligibility, a defendant must serve the mandatory
minimum plus one-half of any remaining minimum sentence
before becoming eligible for parole.13 Thus, where the court
sentences an offender to a minimum term equal to the appli-
cable mandatory minimum, the offender becomes eligible for
parole only after serving the full mandatory minimum. And
we have determined that good time credit cannot be applied
to the maximum term of an indeterminate sentence before
the mandatory minimum sentence has been served.14 Thus,
in calculating mandatory release, a defendant must serve the
mandatory minimum plus one-half of any remaining maxi-
mum sentence.15
[6] Therefore, under our current statutes, the mandatory min-
imum required by § 28-319.01(2) affects both probation and
parole. Probation is not authorized in sentencing an offender
for sexual assault of a child in the first degree. And good time
credit cannot be allowed until the full amount of the mandatory
minimum term of imprisonment has been served. The designa-
tion of the minimum as “mandatory” in § 28-319.01(2) does
not affect the range of penalties, but the statute’s specification
of a different minimum does.
R ange of Penalties
[7] Long ago, we articulated that in order to support a
finding that a plea of guilty or no contest has been entered
12
See Neb. Rev. Stat. § 83-1,110 (Reissue 2014).
13
See State v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012).
14
See Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (2002).
15
See State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), disapproved
on other grounds, State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
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freely, intelligently, voluntarily, and understandingly, among
other requirements the record must establish that the defendant
knew the range of penalties for the crime with which he or
she is charged.16 Russell challenges his plea because he was
not advised of the mandatory minimum sentence of 15 years’
imprisonment required by § 28-319.01(2).
But the parties do not agree upon the correct range of
penalties. Russell contends that the range is 20 years’ to life
imprisonment, of which the first 15 years are “mandatory.”
The State argues that the range is 15 years’ to life imprison-
ment and that the entire minimum term is mandatory. Thus,
we must first determine whether the range of penalties is
20 years’ to life imprisonment or imprisonment of 15 years
to life.
We have not explicitly enunciated the range of penalties for
sexual assault of a child in the first degree under § 28-319.01.
Most recently, in State v. Lantz,17 we reviewed sentences of 15
to 25 years’ imprisonment, but we focused only on whether the
mandatory minimum required that the sentences be served con-
secutively. Some of our language in State v. Fleming18 could
be interpreted to mean that the minimum sentence is 20 years
in prison, of which 15 years must be served before becoming
eligible for parole. But other language in the opinion is con-
sistent with a minimum term of 15 years. Notably, we did not
expressly state that the 20-year minimum sentence imposed by
the court was the most lenient authorized by statute. We have
yet to expressly opine on this precise issue.
The Nebraska Court of Appeals, however, has overtly deter-
mined that the minimum penalty for sexual assault of a child
in the first degree is 15 years. In State v. Lantz,19 the trial
court imposed sentences of imprisonment of 15 to 25 years
16
See State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986).
17
State v. Lantz, supra note 15.
18
State v. Fleming, 280 Neb. 967, 792 N.W.2d 147 (2010).
19
State v. Lantz, 21 Neb. Ct. App. 679, 842 N.W.2d 216 (2014), disapproved in
part on other grounds, State v. Lantz, supra note 15.
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for each of the three counts of sexual assault. On appeal, the
State argued that the sentences were not within the statutory
sentencing range, because the sentencing statutes required the
minimum portion of the sentence to be 20 years’ imprisonment,
of which 15 years was a mandatory minimum sentence not
subject to good time. The Court of Appeals disagreed, relying
upon the principle that to the extent there is a conflict between
two statutes, the specific statute controls over the general stat-
ute. The court reasoned:
In this circumstance, the Legislature has made a specific
provision that the offense of first-offense first degree
sexual assault of a child, even though classified as a
Class IB felony, carries a mandatory minimum sentence
of 15 years’ imprisonment. This specific statute controls
over the general statute regarding sentences providing for
a 20-year minimum term of imprisonment.20
The Court of Appeals’ resolution was consistent with its deter-
mination in a prior case that a sentence of 15 to 15 years’
imprisonment for first degree sexual assault of a child was the
most lenient sentence of imprisonment that could be imposed
for the conviction.21
[8] To hold otherwise could lead to absurd results. For
example, a person found guilty of sexual assault of a child
in the first degree and who had previously been convicted of
the same crime would be guilty of a Class IB felony with a
mandatory minimum sentence of 25 years in prison.22 In that
instance, although the crime would remain a Class IB felony,
the court supposedly would be permitted to impose a minimum
term of years less than the mandatory minimum. In constru-
ing a statute, appellate courts are guided by the presumption
that the Legislature intended a sensible rather than absurd
20
Id. at 704, 842 N.W.2d at 236-37.
21
See State v. Kays, 21 Neb. Ct. App. 376, 838 N.W.2d 366 (2013), affirmed on
other grounds 289 Neb. 260, 854 N.W.2d 783 (2014).
22
See § 28-319.01(3).
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result in enacting the statute.23 This requires that we reject
Russell’s interpretation.
[9] We explicitly hold that the range of penalties for sexual
assault of a child in the first degree, first offense, under
§ 28-319.01(2), is 15 years’ to life imprisonment. Because the
lower limit is a mandatory minimum, probation is not an autho-
rized sentence for the offense and no good time is accrued until
the full mandatory minimum term has been served.
Erroneous A dvisement
The district court erroneously advised Russell of the lower
end of the range of penalties. The court informed Russell that
the minimum sentence was 20 years rather than 15 years. But
this erroneous advisement does not necessitate reversal.
[10] A court’s failure to advise a defendant of the correct
statutory minimum and maximum penalties does not auto-
matically warrant reversal. In State v. Rouse,24 we rejected the
concept that the standards for advisement were per se rules,
where a failure to technically comply would mandate an auto-
matic reversal. We instead said, “If it can be determined that
the defendant understood the nature of the charge, the possible
penalty, and the effect of his plea, then there is no manifest
injustice that would require that the defendant be permitted to
withdraw his plea.”25 In that case, the court did not inform the
defendant of the statutory maximum and minimum penalties
for second degree murder. However, the defend­ant was aware
of the plea arrangements between his counsel and the pros-
ecution and that he would have the opportunity to withdraw
his plea if the sentence imposed was not between 16 and 20
years in prison. We concluded that the defendant received the
sentence that he had bargained for and that any error on the
part of the trial judge in failing to inform the defendant of the
statutory penalty did not prejudice the rights of the defendant
23
State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (2012).
24
State v. Rouse, 206 Neb. 371, 293 N.W.2d 83 (1980).
25
Id. at 375-76, 293 N.W.2d at 86.
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or result in manifest injustice. Without more, the technical fail-
ure of the trial judge to inform the defendant of the statutory
penalties was not enough for reversal.
We also found no prejudice in a case where a defendant was
advised of a lower maximum penalty than that mandated by
statute. In State v. Jipp,26 the defendant was advised that the
maximum penalty was 20 years’ imprisonment when the actual
maximum penalty was 50 years’ imprisonment. We observed
that the defendant was advised that the minimum penalty was
1 year and that he was sentenced to 1 year. We stated that the
effect of State v. Rouse27 “was to hold that if a defendant was
sentenced within the term described by the trial court, preju-
dice is not then apparent on the face of the record.”28
Russell suffered no prejudice as a result of the erroneous
advisement. His sentence of 40 to 50 years’ imprisonment
was within the statutory range of penalties. It was also within
the range of penalties articulated by the district court. It is
inconceivable that Russell would plead no contest after being
advised of a 20-year minimum sentence but would not have
entered such a plea if he were properly informed that the mini-
mum sentence was 15 years. This is particularly true where
Russell faced 27 counts of sexual assault of a child in the first
degree before the State agreed to dismiss 26 counts in return
for Russell’s plea of no contest. The notion that Russell would
not have pled no contest but for the erroneous advisement
regarding the minimum penalty strains credulity. Russell’s
counsel admitted as much at oral argument.
Characterization as
“M andatory Minimum”
The statutory characterization of the minimum penalty as a
mandatory minimum does not change our analysis. As we have
explained, the addition of the word “mandatory” to “minimum”
26
State v. Jipp, 214 Neb. 577, 334 N.W.2d 805 (1983).
27
State v. Rouse, supra note 24.
28
State v. Jipp, supra note 26, 214 Neb. at 579, 334 N.W.2d at 806-07.
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in § 28-319.01(2) had the effect of removing eligibility for
probation and denying accrual of good time prior to service
of the first 15 years of any minimum term. But the addition
of the word “mandatory” did not affect the range of penalties.
Rather, the special minimum established in § 28-319.01(2) for
this offense superseded the minimum provided for Class IB
felonies in § 28-105. In other words, it was the designation of
a specific minimum in § 28-319.01(2) for sexual assault of a
child in the first degree that affected the range of penalties; the
additional word “mandatory” did not do so.
Federal sentencing law supports our decision. Our previous
statements concerning advising a defendant of the mandatory
minimum sentence on a charge derived from standard 1.4 of
the ABA Standards Relating to Pleas of Guilty (Approved
Draft 1968).29 And that statement is consistent with the Federal
Rules of Criminal Procedure, which require that a defendant
be advised of “any mandatory minimum penalty.”30 The pur-
pose of the rule is “to insure that a defendant knows what
minimum sentence the judge MUST impose and what maxi-
mum sentence the judge MAY impose.”31 Nonetheless, the
U.S. Supreme Court, citing Fed. R. Crim. P. 11, stated in a
parenthetical that “federal courts generally are not required
to inform defendant about parole eligibility before accepting
guilty plea.”32 It follows that the term “mandatory minimum
penalty” as used in the ABA standards and the Federal Rules
of Criminal Procedure does not refer to parole eligibility, but,
rather, refers to the low end of the range of punishments for
a charged offense. One federal circuit court has explicitly
29
See, e.g., State v. Clark, 217 Neb. 417, 350 N.W.2d 521 (1984); State v.
Lewis, 192 Neb. 518, 222 N.W.2d 815 (1974). See, also, State v. Irish,
supra note 16 (Shanahan, J., dissenting; Krivosha, C.J., and White, J.,
join) (citing successor standard, standard 14-1.4 of ABA Standards for
Criminal Justice (2d ed. 1980)).
30
Fed. R. Crim. P. 11(b)(1)(I).
31
Fed. R. Crim. P. 11, advisory committee notes on 1974 amendments.
32
Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).
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stated that “‘penalty’ means the statutory nominal sentence
and not actual time in prison after credit for good behavior
and parole.”33
Clearly, Russell’s argument depends solely upon the con-
sequences of a mandatory minimum for accrual of good time.
He makes no claim that he would have been considered for a
sentence of probation. As Russell explained, “After the math
is done, the difference [is] between what the [district court]
advised and [s]entenced (40 years, 20 with good time) and
what Nebraska [l]aw mandates (40 years, 27.5 with good
time) . . . .”34 In other words, he is arguing about the effect
of the mandatory minimum only on his good time, which the
district court described as part of its “truth-in-sentencing”
pronouncements.35
The district court stated, “Assuming that [Russell] loses
none of the good time for which he becomes eligible, [he]
must serve 20 years, less 332 days served, on the minimum
term before obtaining parole eligibility, and must serve 25
years, less 332 days served, on the maximum term, before
obtaining mandatory release.” The State, in effect, concedes
that these advisements were incorrect. But the State argues
that truth-in-sentencing advisements are not required until a
sentence is pronounced and that, thus, the incorrect truth-in-
sentencing advisements did not affect the validity of Russell’s
plea. We agree.
[11-13] As the Court of Appeals has explained, § 29-2204
plainly provides that in the event of a discrepancy between
the statement of the minimum limit of the sentence and the
statement of parole eligibility, the statement of the minimum
limit controls the calculation of the offender’s term.36 The
meaning of a sentence is, as a matter of law, determined by
33
United States v. Garcia, 698 F.2d 31, 33 (1st Cir. 1983).
34
Brief for appellant at 1.
35
See § 29-2204(1)(b) and (c).
36
See State v. Glover, 3 Neb. Ct. App. 932, 535 N.W.2d 724 (1995).
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the contents of the sentence itself.37 A trial judge’s incorrect
statement regarding time for parole eligibility is not part of
the sentence and does not evidence ambiguity in the sentence
imposed.38 Section 29-2204 provides the same rule regarding
any conflict between the statement of maximum limit of the
sentence and the advisement of mandatory release—the for-
mer controls.
CONCLUSION
In the context of § 28-319.01(2), the term “mandatory min-
imum” differs from a “minimum” only in that probation is not
authorized and no good time credit accrues until after the full
amount of the mandatory minimum has been served. The low-
est authorized minimum term of an indeterminate sentence for
sexual assault of a child in the first degree, first offense, under
§ 28-319.01(2) is 15 years’ imprisonment. Thus, the range of
penalties for that offense is 15 years’ to life imprisonment.
The district court incorrectly advised Russell that the range
of penalties was 20 years’ to life imprisonment. But the error
was not prejudicial and did not affect the validity of Russell’s
plea. The sentence imposed of 40 to 50 years’ imprisonment
was within both the authorized statutory range and the advise-
ment of the range given to Russell. There was no prejudice
from the incorrect advisement. Russell’s actual complaint is
that the truth-in-sentencing advisements were incorrect. But
§ 29-2204 plainly states that the pronounced terms of impris-
onment prevail over any conflict with the truth-in-sentencing
advisements. We therefore affirm the judgment of the dis-
trict court.
Affirmed.
37
State v. McNerny, 239 Neb. 887, 479 N.W.2d 454 (1992).
38
See State v. Glover, supra note 36.