State v. Boche ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/07/2016 09:07 AM CDT
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294 Nebraska R eports
STATE v. BOCHE
Cite as 294 Neb. 912
State of Nebraska, appellee, v.
Jason J. Boche, appellant.
___ N.W.2d ___
Filed October 7, 2016. No. S-15-677.
1. Judgments: Appeal and Error. When dispositive issues on appeal
present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
2. Constitutional Law: Statutes. The constitutionality of a statute pre­
sents a question of law.
3. Constitutional Law: Rules of the Supreme Court: Statutes. Strict
compliance with Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) is necessary
whenever a litigant challenges the constitutionality of a statute, regard-
less of how that constitutional challenge may be characterized.
4. Pleas: Waiver. Once a plea of guilty has been accepted, the defendant
waives every defense to the charge. All defects not raised in a motion to
quash are taken as waived by a defendant pleading the general issue.
5. ____: ____. The voluntary entry of a guilty plea or a plea of no contest
waives every defense to a charge, whether the defense is procedural,
statutory, or constitutional.
6. Constitutional Law: Appeal and Error. A constitutional issue not
presented to or passed upon by the trial court is not appropriate for con-
sideration on appeal.
7. Constitutional Law: Convicted Sex Offender: Sentences. The reg-
istration requirements of Nebraska’s Sex Offender Registration Act do
not impose criminal punishment, and thus cannot amount to cruel and
unusual punishment.
8. Convicted Sex Offender: Sentences: Probation and Parole. Lifetime
community supervision under Neb. Rev. Stat. § 83-174.03 (Reissue
2014) is akin to parole and thus is punishment.
9. Constitutional Law: Sentences. Under Graham v. Florida, 560 U.S.
48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), and Miller v. Alabama,
___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), the first step
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in a categorical cruel and unusual punishment analysis is examination of
the national consensus on the issue.
10. ____: ____. The second step in a cruel and unusual punishment analy-
sis requires the court to exercise its own independent judgment as to
whether the punishment in question violates the Eighth Amendment.
The judicial exercise of independent judgment requires consideration of
(1) the culpability of the offenders at issue in light of their crimes and
characteristics, (2) the severity of the punishment in question, and (3)
whether the challenged sentencing practice serves legitimate penologi-
cal goals.
11. Constitutional Law: Convicted Sex Offender: Minors: Sentences.
Lifetime community supervision is not cruel and unusual punishment
merely because the aggravated offense was committed while a juvenile.
Appeal from the District Court for Madison County: M ark
A. Johnson, Judge. Affirmed.
Barbara J. Masilko and Chelsey R. Hartner, Deputy Madison
County Public Defenders, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Wright, Connolly, Miller-Lerman, Cassel, and Stacy, JJ.,
and Moore and Bishop, Judges.
Stacy, J.
Jason J. Boche was convicted of first degree sexual assault
committed while he was a juvenile. He was sentenced to 1
year’s imprisonment and was found to be subject to both life-
time sex offender registration and lifetime community super-
vision. Boche contends the lifetime requirements are cruel
and unusual punishments because he was a juvenile when the
offense was committed. We conclude neither lifetime require-
ment amounts to cruel and unusual punishment, and affirm the
conviction and sentence.
I. FACTS
On December 1, 2014, Boche was charged with first degree
sexual assault in the district court for Madison County. The
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STATE v. BOCHE
Cite as 294 Neb. 912
information alleged he subjected another to sexual penetra-
tion without consent on or about January 1, 2005, through
December 31, 2008. Boche was a juvenile at the time the
alleged acts occurred, but had reached the age of majority by
the time charges were filed in district court.
Boche eventually entered into a plea agreement. In exchange
for his plea of no contest, the State agreed to recommend a
sentence of not more than 1 year’s imprisonment and agreed
to file no additional charges. Prior to accepting the plea, the
court informed Boche that if a jury found the offense was
aggravated, he would be subject to mandatory lifetime regis-
tration requirements under the Sex Offender Registration Act
(SORA) and to mandatory lifetime community supervision by
the Office of Parole Administration.1
As a factual basis for the plea, the State recited that the
victim was born in June 1997, that Boche had penile-vaginal
intercourse with the victim on several occasions, and that
during a taped interview, Boche admitted he and the victim
engaged in oral sex. The sexual acts occurred while the victim
was between the ages of 6 and 11 and Boche was between
the ages of 11 and 16. Boche waived his right to a jury
trial on the aggravation issue, and after an evidentiary hear-
ing, the court concluded it was an aggravated offense under
§ 29-4001.01, because the victim was under the age of 13.
Section 29-4001.01 provides:
(1) Aggravated offense means any registrable offense
under section 29-4003 which involves the penetration of,
direct genital touching of, oral to anal contact with, or
oral to genital contact with (a) a victim age thirteen years
or older without the consent of the victim, (b) a victim
under the age of thirteen years, or (c) a victim who the
sex offender knew or should have known was mentally or
physically incapable of resisting or appraising the nature
of his or her conduct.
1
See Neb. Rev. Stat. §§ 29-4001.01 (Supp. 2015), 29-4003 and 29-4005(1)(b)
(Cum. Supp. 2014), and 83-174.03 (Reissue 2014).
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Boche argued that because he was a juvenile at the time the acts
occurred, finding him to be an aggravated offender and thus
subject to lifetime registration under § 29-4005(1)(b) of SORA
and to lifetime community supervision under § 83-174.03
would subject him to cruel and unusual punishment, in viola-
tion of the Eighth Amendment to the U.S. Constitution. The
district court found § 29-4001.01 made no distinction based
on the age of the offender and sentenced Boche to 1 year’s
imprisonment, ordered him to register under SORA for life,
and found he was subject to lifetime community supervision.
Boche filed this timely appeal.
II. ASSIGNMENTS OF ERROR
Boche assigns, restated, that the trial court erred in (1)
imposing cruel and unusual punishment on him by sentencing
him to lifetime sex offender registration and lifetime commu-
nity supervision when he committed the aggravated offense as
a juvenile and (2) violating the Ex Post Facto Clause when it
sentenced him to lifetime community supervision.
III. STANDARD OF REVIEW
[1,2] When dispositive issues on appeal present questions of
law, an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision of the court below.2
The constitutionality of a statute presents a question of law.3
IV. ANALYSIS
1. Issues Properly Before Us
(a) Applicability of § 2-109(E)
The State contends that neither of Boche’s two assignments
of error are properly before us because Boche did not file a
notice of constitutional question pursuant to Neb. Ct. R. App.
P. § 2-109(E) (rev. 2014), which states:
2
State v. Dye, 291 Neb. 989, 870 N.W.2d 628 (2015); State v. Watt, 285
Neb. 647, 832 N.W.2d 459 (2013).
3
Adams v. State, 293 Neb. 612, 879 N.W.2d 18 (2016).
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A party presenting a case involving the federal or state
constitutionality of a statute must file and serve notice
thereof with the Supreme Court Clerk by a separate writ-
ten notice or by notice in a Petition to Bypass at the time
of filing of such party’s brief. If the Attorney General is
not already a party to an action where the constitutional-
ity of the statute is in issue, a copy of the brief assign-
ing unconstitutionality must be served on the Attorney
General within 5 days of the filing of the brief with the
Supreme Court Clerk; proof of such service shall be filed
with the Supreme Court Clerk.
The § 2-109(E) requirement is driven by the mandates of
article V, § 2, of the Nebraska Constitution, which provides in
pertinent part:
A majority of the members [of the Supreme Court] sit-
ting shall have authority to pronounce a decision except
in cases involving the constitutionality of an act of the
Legislature. No legislative act shall be held unconstitu-
tional except by the concurrence of five judges. . . . The
judges of the Supreme Court, sitting without division,
shall hear and determine all cases involving the constitu-
tionality of a statute . . . .
The § 2-109(E) notice requirement was implemented because
it “assists the clerk and this court in ensuring that an appeal
involving the constitutionality of a statute is heard by the full
court.”4 The rule also ensures the Attorney General is promptly
advised of a constitutional challenge to a statute so the appeal
may be staffed and handled accordingly.
Here, Boche is not arguing that §§ 29-4001.01, 29-4003,
29-4005(1)(b), and 83-174.03 are unconstitutional on their
face and must be judicially invalidated. Instead, he contends
the registration and community supervision provisions of those
statutes, although valid and enforceable on their face, can-
not constitutionally be applied to him. The initial question
4
State v. Johnson, 269 Neb. 507, 513, 695 N.W.2d 165, 170-71 (2005).
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before us is whether a § 2-109(E) notice is required in such
a situation.
In Zawaideh v. Nebraska Dept. of Health & Human Services,5
we implied that a § 2-109(E) notice was not required unless a
litigant was presenting a facial challenge to the constitutional-
ity of a statute:
Although [appellant] is presenting a facial challenge to
the constitutionality of a statute, he did not file a notice
of constitutional question pursuant to Neb. Ct. R. App.
P. § 2-109(E) (rev. 2008), which requires that a party
challenging a statute’s constitutionality file and serve
notice with the Supreme Court Clerk at the time of fil-
ing the party’s brief. And we have repeatedly held that
strict compliance with § 2-109(E) is required for the
court to address a constitutional claim. Therefore, we do
not address [appellant’s] claims regarding the constitu-
tionality of various statutes. However, we do consider
his claims that the application of those statutes in this
instance violated his right to due process.
Our language in Zawaideh has caused confusion, and may
explain why no § 2-109(E) notice was filed in the pres-
ent appeal.
The distinction drawn in Zawaideh between facial and
as-applied challenges can be important when it comes to
determining whether a constitutional issue has been preserved
for appellate review. This is because challenges to the consti-
tutionality of a criminal statute as applied to a defendant are
preserved by a plea of not guilty,6 but to bring a constitutional
challenge to the facial validity of a statute, the proper proce-
dure is to file a motion to quash, and all defects not raised in
5
Zawaideh v. Nebraska Dept. of Health & Human Servs., 280 Neb. 997,
1004-05, 792 N.W.2d 484, 492 (2011) (emphasis supplied). See, also,
Parker v. State ex rel. Bruning, 276 Neb. 359, 753 N.W.2d 843 (2008)
(addressing due process claim but declining to address whether specific
statutes were unconstitutional in absence of § 2-109(E) filing).
6
State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011).
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a motion to quash are taken as waived by a defendant pleading
the general issue.7
But the distinction between facial and as-applied constitu-
tional challenges is immaterial when it comes to the § 2-109(E)
notice. Neither the constitutional provision which prompted
our court rule, nor the court rule itself, make any distinction
between facial and as-applied constitutional challenges. Nor,
in terms of the underpinnings of the court rule, is there any
rationale for distinguishing between facial and as-applied chal-
lenges; all challenges to the constitutionality of a statute should
be heard by a full court, and a supermajority is required to
declare any statute unconstitutional, without regard to whether
the challenge is facial or as-applied.
[3] In prior cases, we have insisted on “strict compliance”
with § 2-109(E).8 The importance of a constitutional challenge
demands our full attention and adherence to constitutional
mandates. We take this opportunity to clarify that strict com-
pliance with § 2-109(E) is necessary whenever a litigant chal-
lenges the constitutionality of a statute, regardless of how that
constitutional challenge may be characterized. To the extent
we suggested otherwise in Zawaideh, we expressly disapprove
of such language. But because the absence of a § 2-109(E)
notice in this appeal may have been prompted by our language
in Zawaideh, we conclude it is appropriate to consider the
as-applied constitutional challenges Boche presents.
(b) Entry of Plea as Waiver
of Constitutional Claim
[4,5] Once a plea of guilty has been accepted, the defendant
waives every defense to the charge. All defects not raised in a
motion to quash are taken as waived by a defendant pleading
7
State v. Harris, 284 Neb. 214, 817 N.W.2d 258 (2012).
8
Cain v. Custer Cty. Bd. of Equal., 291 Neb. 730, 868 N.W.2d 334 (2015);
Parker v. State ex rel. Bruning, supra note 5; Ptak v. Swanson, 271 Neb.
57, 709 N.W.2d 337 (2006); Zoucha v. Henn, 258 Neb. 611, 604 N.W.2d
828 (2000); State v. Feiling, 255 Neb. 427, 585 N.W.2d 456 (1998).
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the general issue.9 The voluntary entry of a guilty plea or a plea
of no contest waives every defense to a charge, whether the
defense is procedural, statutory, or constitutional.10
Here, Boche entered a plea of no contest to the charge of
first degree sexual assault, and in doing so, he waived every
defense to that charge, including any as-applied challenge
to the constitutionality of Neb. Rev. Stat. § 28-319 (Reissue
2008), the charging statute. But the constitutional challenge
Boche presents here is not directed to the statute under which
he was convicted and sentenced. Rather, he argues that because
he was a juvenile when he committed the offense to which
he pled, it would be cruel and unusual punishment under
the Eighth Amendment to impose upon him the requirements
of lifetime registration and lifetime community supervision
mandated by §§ 29-4001.01, 29-4003, 29-4005(1)(b), and
83-174.03. We conclude Boche did not waive an as-applied
Eighth Amendment challenge to the constitutionality of these
statutes by entering a no contest plea to the charge of first
degree sexual assault.11
(c) Ex Post Facto Challenge
In his second assignment of error, Boche contends that
imposing lifetime community supervision on him amounted
to ex post facto punishment. Both U.S. Const. art. I, § 10,
and Neb. Const. art. I, § 16, provide that no ex post facto law
may be passed. A law which purports to apply to events that
occurred before the law’s enactment, and which disadvantages
a defendant by creating or enhancing penalties that did not
exist when the offense was committed, is an ex post facto law
and will not be endorsed by the courts.12
9
See State v. Burkhardt, 258 Neb. 1050, 607 N.W.2d 512 (2000).
10
Id.; State v. Trackwell, 250 Neb. 46, 547 N.W.2d 471 (1996).
11
See, State v. Brand, 219 Neb. 402, 363 N.W.2d 516 (1985); State v.
Newcomer, 23 Neb. Ct. App. 761, 875 N.W.2d 914 (2016).
12
State v. Harris, supra note 7; State v. Vela, 279 Neb. 94, 777 N.W.2d 266
(2010).
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Lifetime community supervision can only be imposed for
offenses committed after July 14, 2006.13 The information
charged a timeframe for the offense which included time
both before and after this date. Boche argues the factual basis
presented by the State failed to specifically demonstrate his
offense occurred after July 14, 2006.
[6] The State argues this assignment of error is not prop-
erly before us because Boche did not raise the ex post facto
issue to the district court. A constitutional issue not presented
to or passed upon by the trial court is not appropriate for
consideration on appeal.14 The record demonstrates Boche
never argued to the district court that applying the lifetime
community supervision requirement to him would amount to
an ex post facto application of the statute because the State
failed to show his offense was committed after the punish-
ment was enacted. We therefore agree with the State that the
ex post facto challenge is not properly before us, and we do
not address it.
2. Cruel and Unusual Punishment
Boche argues that both the mandatory lifetime registra-
tion requirement and the mandatory lifetime community
supervision requirement imposed on him result in cruel and
unusual punishment because he was a juvenile at the time
the aggravated offense was committed. In doing so, he artic-
ulates thoughtful policy arguments against imposing these
requirements on juveniles convicted of aggravated sexual
offenses. We emphasize here that the question before us is
not the wisdom or efficacy of imposing the lifetime regis-
tration and lifetime community supervision requirements on
Boche. Rather, our inquiry is limited to whether imposing the
requirements violates the Eighth Amendment. In reviewing
the constitutionality of a statute, we do not pass judgment
13
State v. Simnick, 279 Neb. 499, 779 N.W.2d 335 (2010).
14
State v. Reinhart, 283 Neb. 710, 811 N.W.2d 258 (2012); State v. Ford,
279 Neb. 453, 778 N.W.2d 473 (2010).
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on the wisdom or the necessity of the legislation or whether
the statute is based upon assumptions which are scientifi-
cally substantiated; even misguided laws may nevertheless
be constitutional.15
The principles applicable to a constitutional challenge to
a statute are well known. A statute is presumed to be consti-
tutional and all reasonable doubts are resolved in favor of its
constitutionality.16 The burden of establishing the unconstitu-
tionality of a statute is on the one attacking its validity.17 The
unconstitutionality of a statute must be clearly established
before it will be declared void.18
(a) Lifetime Registration
Under § 29-4005, any sex offender convicted of a regis-
trable offense under § 29-4003 punishable by imprisonment
for more than 1 year and convicted of an aggravated offense
shall register for life. Registration involves providing author­
ities with information about the offender’s name, address,
place of employment, vehicles, travel documents, telephone
numbers, criminal history, fingerprints, and DNA.19 In State
v. Worm,20 we held these registration requirements were not
punishment.
Worm concluded the Legislature imposed lifetime registra-
tion requirements with the intent to create a civil regulatory
scheme to protect the public from the danger posed by sex
offenders. We applied the seven-factor test set out by the
U.S. Supreme Court in Kennedy v. Mendoza-Martinez21 and
15
See Le v. Lautrup, 271 Neb. 931, 716 N.W.2d 713 (2006).
16
Adams v. State, supra note 3.
17
Id.
18
Id.
19
See Neb. Rev. Stat. § 29-4006 (Supp. 2015).
20
State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004).
21
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d
644 (1963).
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repeated in Smith v. Doe22 to determine whether the effect of
the registration requirement was nevertheless so punitive that
it should be regarded as punishment. We concluded it was not
punishment, in part because registration is rationally connected
to a nonpunitive purpose of protecting the public in that “sex
offenders present a high risk to commit repeat offenses.”23
Worm concluded the purpose and effect of the lifetime reg-
istration requirements were not so punitive as to negate the
Legislature’s intent to create a civil scheme.
Boche urges us not to apply our holding in Worm to him
because he was a juvenile at the time his aggravated offense
was committed. He argues that lifetime registration should
be considered punishment as to juveniles, because a primary
justification for registration is to prevent recidivism, and that
justification does not apply to juveniles. To support this argu-
ment, his brief cites general studies examining the risk of juve-
nile sex offender recidivism and notes that the Supreme Court
of Pennsylvania recently recognized these studies.24 However,
Boche did not present these studies to the district court, so that
court had no evidence before it related to his argument. Nor
does this court. On the record before us, we see no principled
reason to depart from our holding in Worm that lifetime reg-
istration requirements are not punishment. Other jurisdictions
which have considered the issue as applied to juveniles have
reached the same conclusion.25
22
Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003).
23
Neb. Rev. Stat. § 29-4002 (Reissue 2008). See State v. Worm, supra note
20. See, also, Smith v. Doe, supra note 22.
24
See In re J.B., 630 Pa. 408, 107 A.3d 1 (2014).
25
See, e.g., U.S. v. Under Seal, 709 F.3d 257 (4th Cir. 2013); In re A.C.,
2016 IL App (1st) 153047, 54 N.E.3d 952, 403 Ill. Dec. 811 (2016);
People in Interest of J.O., No. 14CA0622, 2015 WL 5042709 (Colo. App.
Aug. 27, 2015); State ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 909
N.E.2d 783, 330 Ill. Dec. 761 (2009). Accord U.S. v. Juvenile Male, 670
F.3d 999 (9th Cir. 2012).
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[7] Because we conclude the lifetime registration require-
ments imposed on Boche are not punishment, his argument that
these registration requirements amount to cruel and unusual
punishment must necessarily fail.
For the sake of completeness, we note that even if the
lifetime registration requirements could be characterized as
punishment as to Boche, they would not amount to cruel
and unusual punishment for largely the same reasons we
articulate next with respect to the lifetime community supervi-
sion requirements.
(b) Lifetime Community Supervision
[8] In State v. Payan,26 we concluded that unlike life-
time registration, lifetime community supervision in Nebraska
is akin to parole and thus is punishment. Although Payan
involved an adult sex offender, we see no reason why life-
time community supervision would not also be punishment
for juvenile sex offenders. As such, we proceed to examine
Boche’s argument that imposing lifetime community super-
vision on him amounts to cruel and unusual punishment,
because he was a juvenile when he committed the aggra-
vated offense.
Some additional background aids our analysis. According
to § 83-174.03(1)(c), any individual who, on or after July
14, 2006, is convicted of an aggravated offense as defined in
§ 29-4001.01 shall be subject to lifetime community supervi-
sion by the Office of Parole Administration. An aggravated
offense under § 29-4001.01 is any registrable offense under
§ 29-4003 which involves the penetration of, direct genital
touching of, oral-to-anal contact with, or oral-to-genital contact
with a victim under the age of 13 years.27 Boche committed a
registrable offense under § 29-4003 because he meets the defi-
nition of “any person who on or after January 1, 1997” is found
26
State v. Payan, 277 Neb. 663, 765 N.W.2d 192 (2009).
27
§ 29-4001.01(1)(b).
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guilty of sexual assault pursuant to § 28-319.28 The trial court
found the sexual assault was an aggravated offense, because
the victim was under the age of 13.
Individuals subject to lifetime community supervision
undergo a risk assessment and evaluation by the Office of
Parole Administration to determine the conditions of the super-
vision to be imposed “to best protect the public from the risk
that the individual will reoffend.”29 Conditions may include
drug and alcohol testing; restrictions on employment and lei-
sure activities necessary to minimize interaction with potential
victims; regularly reporting to a community supervision offi-
cer; providing notice of changes to address or employment;
providing access to medical records; agreeing to available
medical and psychological treatment, including submission to
polygraph examinations; and any other conditions designed
to minimize the risk of recidivism, including electronic moni-
toring.30 The conditions imposed “shall be the least restrictive
conditions available, in terms of the effect on the individual’s
personal freedom, which minimize the risk of recidivism and
are compatible with public safety.”31
Information considered when determining the requisite con-
ditions to be imposed on an individual includes: a caseworker
report detailing the individual’s personality, social history, and
ability to adjust to authority; the individual’s prior criminal
record, including reports of probation and parole experiences;
the presentence investigation report; reports of any physical,
mental, or psychiatric examinations of the individual; relevant
information submitted by the individual, his or her attorney, the
victim of the crime, or other persons; and such other relevant
information concerning the individual as may reasonable be
28
§ 29-4003(1)(a)(i)(c).
29
§ 83-174.03(3).
30
§ 83-174.03(4).
31
Neb. Rev. Stat. § 83-1,103.02(1)(d) (Reissue 2014).
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available.32 The individual has a right to appeal a determination
or revision of the conditions of supervision.33 Relevant con-
siderations in any such appeal include whether the conditions
reduce the risk of the individual’s reoffending and whether
less restrictive conditions are available which would equally or
more effectively reduce the risk of reoffense.34
Boche contends that imposition of lifetime supervision
requirements on him results in cruel and unusual punishment
because he was a juvenile when he committed the aggravated
offense. To support his argument, he relies on two recent deci-
sions from the U.S. Supreme Court: Graham v. Florida35 and
Miller v. Alabama.36
In Graham, the Court considered whether the Eighth
Amendment prohibited the imposition of a life without parole
sentence on a juvenile who committed a nonhomicide offense.
In doing so, it recognized that the Eighth Amendment states:
“‘Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishment inflicted.’”37 The
Court recognized that to determine whether a punishment is
cruel and unusual, it must look to the evolving standards of
decency that mark the progress of a maturing society. This
is necessary because the standard of extreme cruelty is not
merely descriptive, but necessarily embodies a moral judg-
ment. The Graham Court observed that the standard itself
remains the same, but its applicability must change as the basic
mores of society change.38
32
§ 83-1,103.02(1)(e).
33
Neb. Rev. Stat. § 83-1,103.04 (Reissue 2014).
34
Id.
35
Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010).
36
Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407
(2012).
37
Graham v. Florida, supra note 35, 560 U.S. at 58.
38
Id.
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Graham recognized that the concept of proportionality is
central to the Eighth Amendment. It recognized that the Court’s
prior cases addressing the proportionality of sentences fell
within two general categories: challenges to the length of a
term-of-years sentence given all the circumstances and chal-
lenges in cases involving categorical restrictions on implemen-
tation of the death penalty. It determined that the issue before
it was a categorical challenge to a term-of-years sentence and
concluded that because it was a sentencing practice itself that
was in question, the proper approach was the categorical one.
According to Graham, the analysis begins with objective
indicia of national consensus, because the clearest and most
reliable objective evidence of contemporary values is the
legislation enacted by the states’ legislatures. Graham thus
addressed how the various states sentenced juveniles convicted
of nonhomicide offenses. The Court ultimately concluded it
was quite rare for a state to impose a life sentence without
parole on juveniles convicted of a nonhomicide crime and that
a national consensus had developed against it.
The Court in Graham then noted that community consensus,
while entitled to great weight, was not itself determinative of
whether a punishment is cruel and unusual. It reasoned that the
judicial exercise of independent judgment requires consider-
ation of the culpability of the offenders at issue in light of their
crimes and characteristics, along with the severity of the pun-
ishment in question. In this inquiry, the Court also considers
whether the challenged sentencing practice serves legitimate
penological goals.
As to the culpability of juveniles, the Graham Court recog-
nized its prior holding39 that because juveniles have lessened
mental culpability, they are less deserving of the most severe
punishments than adults. Graham emphasized that juveniles
39
Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)
(holding Eighth Amendment prohibits execution of juvenile convicted of
homicide).
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have a “‘lack of maturity and an underdeveloped sense
of responsibility’”; they “are more vulnerable or suscep-
tible to negative influences and outside pressures, includ-
ing peer pressure”; and their characters are “not as well
formed.” . . . “[I]t is difficult even for expert psycholo-
gists to differentiate between the juvenile offender whose
crime reflects unfortunate yet transient immaturity, and
the rare juvenile offender whose crime reflects irrepa-
rable corruption.”40
As to the nature of the offense at issue, Graham recog-
nized a distinction between homicide and other serious violent
offenses against the individual. Serious nonhomicide offenses
may be “‘devastating in their harm . . . but “in terms of moral
depravity and of the injury to the person and to the public,”
. . . they cannot be compared to murder in their “severity and
irrevocability.”’”41 Graham recognized that the punishment
of life without parole is the second most severe punishment
permitted by law and that such sentences share some char-
acteristics with death sentences that are shared by no other
sentences. It noted that a life without parole sentence for a
juvenile means a denial of hope, that good behavior and char-
acter improvement are immaterial, and that whatever the future
might hold in store for the mind and spirit, the juvenile will
remain in prison for the rest of his days. It also noted that the
penological justifications for a life without parole sentence
for a juvenile were lacking, largely because such a sentence
denied the juvenile an opportunity to demonstrate growth and
maturity. Ultimately, the Court in Graham concluded that due
to the limited culpability of juvenile offenders and the severity
of the punishment of life without parole, sentencing a juvenile
to life imprisonment without parole for a nonhomicide offense
was cruel and unusual.
40
Graham v. Florida, supra note 35, 560 U.S. at 68.
41
Id., 560 U.S. at 69.
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Two years later, in Miller, the Court held the Eighth
Amendment forbids a sentencing scheme that mandates life in
prison without the possibility of parole for a juvenile who has
committed a homicide.42 In doing so, it noted that the Eighth
Amendment’s prohibition against cruel and unusual punish-
ment guarantees individuals the right not to be subjected to
excessive sanctions. It explained that right flows from the
basic precept of justice that punishment for crime should
be graduated and proportioned to both the offender and the
offense. It again noted the concept of proportionality is central
to the Eighth Amendment and is viewed according to evolv-
ing standards of decency that mark the progress of a matur-
ing society.
The Miller Court recognized that in the past, it had adopted
categorical bans on sentencing practices based on mismatches
between the culpability of a class of offenders and the severity
of a penalty.43 It thus reiterated many of the principles enun-
ciated in Graham. It further noted that Graham likened life
without parole for juveniles to the death penalty for adults,
thus evoking as to juveniles facing such a sentence addi-
tional precedent requiring sentencing authorities to consider
the individual characteristics of the defendant before sentenc-
ing. It reasoned that based on Graham and prior precedent,
“in imposing a State’s harshest penalties, a sentencer misses
too much if he treats every child as an adult.”44 But the Court
in Miller specifically noted that a sentence which is not other-
wise cruel and unusual does not become so simply because it
is mandatory.
42
Miller v. Alabama, supra note 36.
43
See, Graham v Florida, supra note 35; Roper v. Simmons, supra note
39; Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335
(2002).
44
Miller v. Alabama, supra note 36, 132 S. Ct. at 2468.
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(i) National Consensus
[9] Both Graham and Miller recognize that the first step
in a categorical cruel and unusual punishment analysis is
examination of the national consensus on the issue. That is,
we must look at how common or rare it is for jurisdictions
to impose mandatory lifetime community supervision on
juvenile sex offenders convicted of aggravated offenses in
criminal court.
Boche, however, did not present any evidence, or even argu-
ment, to the district court on this prong of the test. Nor does
he attempt to undertake any type of analysis of the national
consensus in his brief. It is incumbent upon an appellant to
supply a record which supports his or her appeal.45 Absent such
a record, as a general rule, the decision of the lower court as
to those errors is to be affirmed.46 On this record, our ability to
thoroughly review this step is thus somewhat restricted.47
We note, however, that the Kansas Supreme Court recently
attempted to undertake a similar analysis and generally con-
cluded there is no national consensus either for or against
imposing mandatory lifetime community supervision on juve-
nile sex offenders sentenced in criminal court.48
(ii) Independent Judgment
[10] The second step in the analysis requires this court
to exercise its own independent judgment as to whether the
punishment in question violates the Eighth Amendment.49
The judicial exercise of independent judgment requires
45
State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015); State v. Robinson,
287 Neb. 799, 844 N.W.2d 312 (2014).
46
State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
47
Graham v. Florida, supra note 35, 560 U.S. at 63 (holding that “it is for
the litigants to provide data to aid the Court” on national consensus prong
of categorical cruel and unusual punishment analysis).
48
State v. Dull, 302 Kan. 32, 351 P.3d 641 (2015).
49
See, Miller v. Alabama, supra note 36; Graham v. Florida, supra note 35.
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consideration of the culpability of the offenders at issue in
light of their crimes and characteristics, along with the sever-
ity of the punishment in question.50 In this inquiry, the court
also considers whether the challenged sentencing practice
serves legitimate penological goals.51
a. Culpability of Offenders
There is no disputing that Boche’s crime was serious. First
degree sexual assault is a Class II felony, and sexual assaults
against children often have devastating physical and psycho-
logical consequences for victims. Boche relies heavily on what
Graham and Miller said generally about the diminished capac-
ity and reduced culpability of juvenile offenders. We agree
that the Court’s observations in Graham and Miller and about
the reduced culpability and diminished capacity of juvenile
offenders as a class generally applies to juvenile sex offenders.
As the Court noted in Graham: “‘[F]rom a moral standpoint
it would be misguided to equate the failings of a minor with
those of an adult, for a greater possibility exists that a minor’s
character deficiencies will be reformed.’”52
But acknowledging the diminished capacity and reduced
culpability of juvenile sex offenders does not lead to the con-
clusion that all punishment that is constitutionally permissible
for adult sex offenders is automatically cruel and unusual pun-
ishment as to juveniles. Rather, the additional factors articu-
lated by the Court in Graham and Miller have to be analyzed
in light of the particular punishment at issue.
b. Severity of Punishment
The severity of the punishment at issue is a key factor in
the constitutional analysis. Graham and Miller emphasized
that life without parole and death are the two most severe
punishments permitted by law in that they deprive the one
50
Graham v. Florida, supra note 35.
51
Id.
52
Id., 560 U.S. at 68.
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convicted of the most basic liberties without any hope those
liberties can be restored. According to Graham, a life without
parole sentence “‘means denial of hope; it means that good
behavior and character improvement are immaterial; it means
that whatever the future might hold in store for the mind and
spirit of [the convict], he will remain in prison for the rest of
his days.’”53
A punishment of lifetime community supervision is nowhere
near as severe as the punishment of life in prison without
parole or death. While lifetime community supervision is
severe in duration, it does not so restrict a juvenile’s basic lib-
erties that he or she has no opportunity, incentive, or means to
take steps to improve his or her behavior and character. Simply
stated, there is no denial of hope for a juvenile sex offender
sentenced to lifetime community supervision. To the contrary,
he or she can enjoy many of life’s basic liberties and has every
opportunity and incentive to demonstrate growth and maturity.
As we recognized in Payan, lifetime community supervision
is akin to parole,54 and the unavailability of parole to the juve-
niles in Graham and Miller was a key factor in the Court’s
finding that the punishment was cruel and unusual. Here,
we think it would be illogical to conclude that a punishment
which is very comparable to parole runs afoul of the principles
articulated in Graham and Miller.
Further, as detailed earlier in this opinion, in Nebraska,
the actual conditions of community supervision are narrowly
tailored to each individual and subject to annual review. Our
statutes specify that the conditions imposed are to be the
“least restrictive conditions available, in terms of the effect
on an individual’s personal freedom, which minimize the
risk of recidivism and are compatible with public safety.”55
Under our statutes, an individual’s good behavior and character
53
Id., 560 U.S. at 70.
54
State v. Payan, supra note 26.
55
§ 83-1,103.02(1)(d).
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improvement can directly affect the terms and conditions of
the supervision, so he or she has additional and direct incentive
to improve character, behavior, mind, and spirit. Especially in
light of Nebraska’s statutory scheme, the punishment of life-
time community supervision is not particularly severe, even
though it is imposed for life.
c. Penological Goals
According to Graham, there are four legitimate goals of
penal sanctions: retribution, deterrence, incapacitation, and
rehabilitation. Graham reasoned that none of these goals pro-
vides an adequate justification for imposing a sentence of life
without parole on a juvenile who did not commit homicide,
largely because the punishment denies the offender an opportu-
nity to demonstrate growth and maturity.
We do not think the same conclusion is warranted with
respect to lifetime community supervision. This is true largely
because, as we previously determined, lifetime community
supervision differs greatly in severity from lifetime impris-
onment or death. A juvenile subject to lifetime community
supervision is not denied all hope, and the penological goals
of rehabilitation and deterrence justify imposition of lifetime
community supervision on sex offenders.
(c) Individualized Sentencing
Boche also relies on Miller’s emphasis on individualized
sentencing to argue lifetime community supervision is cruel
and unusual when applied to juveniles convicted of aggravated
sex offenses. Miller reasoned that because life without parole
was the most severe punishment that could legally be imposed
on a juvenile, it was logical to equate that punishment with
the most severe punishment that could legally be imposed on
an adult—death. Miller thus reasoned that the individualized
sentencing required in capital cases as to adults equally applied
to juveniles sentenced to life without parole. Boche urges us
to apply the concept of individualized sentencing in Miller to
juvenile sex offenders.
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We are not convinced that the requirement of individual-
ized sentencing applies to juveniles in cases other than homi-
cides involving a possible sentence of life without parole.56
But we need not resolve the issue here, because Nebraska’s
lifetime community supervision statutes already require sig-
nificant individualized consideration of each person subject
to supervision.57 Such consideration is mandated so that those
sex offenders who present a lower risk to the community are
supervised accordingly.
As such, the flexibility that was absent in the statutory
sentencing scheme considered in Miller is mandatory under
Nebraska’s statutory scheme. Specifically, individuals subject
to lifetime community supervision “undergo a risk assessment
and evaluation by the Office of Parole Administration to deter-
mine the conditions of community supervision to be imposed
to best protect the public from the risk that the individual will
reoffend.”58 The conditions of supervision imposed must be
those which “most effectively minimize the risk of the indi-
vidual committing another sex offense. The conditions shall be
the least restrictive conditions available, in terms of the effect
on the individual’s personal freedom, which minimize the risk
of recidivism and are compatible with public safety.”59 The
individual can appeal the supervision conditions imposed.60 In
addition, the conditions of community supervision are reviewed
by the Office of Parole Administration on an annual basis and
can be revised so that the individual’s freedom is not unnec-
essarily restricted.61 Nebraska’s statutory scheme for lifetime
community supervision is individualized, adaptive, and incen-
tivizes rehabilitation.
56
See, generally, State v. Cardeilhac, 293 Neb. 200, 876 N.W.2d 876 (2016).
57
Id.
58
§ 83-174.03(3).
59
§ 83-1,103.02(1)(d).
60
§ 83-1,103.04.
61
Neb. Rev. Stat. § 83-1,103.03 (Reissue 2014).
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(d) Summary
[11] The U.S. Supreme Court has recognized that juvenile
offenders have diminished culpability and in general should
be given an opportunity and an incentive to demonstrate posi-
tive changes in character, behavior, mind, and spirit. But we
conclude a sentence of lifetime community supervision is not a
severe restriction on a juvenile sex offender’s personal liberties
and ability to demonstrate such changes, particularly because
that sentence is imposed in Nebraska, and thus is not a sen-
tence that can compare in severity to a sentence of life impris-
onment without parole or death. And it is only with respect to
those two extremely severe sentences that the U.S. Supreme
Court has found a punishment applicable to adults becomes
cruel and unusual when applied to juveniles. As such, we hold
that sentencing Boche to lifetime community supervision did
not amount to cruel and unusual punishment.
We recognize that the Kansas Supreme Court recently held
that mandatory lifetime postrelease supervision is cruel and
unusual punishment when applied to a juvenile sex offender.62
In doing so, that court explicitly found the provisions of
Kansas’ supervision were “‘more severe than most other juris­
dictions’”63 and recognized that the provisions resulted in
a “sentence that restricts the juvenile’s liberty for life with-
out any chance, hope, or legal mechanism of having those
restrictions lifted or even reduced.”64 Because the substance
of Nebraska’s lifetime community supervision requirements
differ significantly and materially from that considered by the
Kansas Supreme Court, we do not find the Kansas opinion
helpful in answering the question presented here.
V. CONCLUSION
For the foregoing reasons, we conclude neither the require-
ment of lifetime registration nor the requirement of lifetime
62
See State v. Dull, supra note 48.
63
Id. at 53, 351 P.3d at 655.
64
Id. at 55, 351 P.3d at 657.
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community supervision is cruel and unusual punishment as to
Boche. We therefore affirm his conviction and sentence.
A ffirmed.
Connolly, J., not participating in the decision.
Heavican, C.J., not participating.
Bishop, Judge, concurring.
Based upon the errors assigned and the current state of the
law, I concur with the majority’s analysis. I write separately
to point out a void in our criminal and juvenile statutes to
address a situation such as the one presented here where
unlawful acts committed by Boche between the ages of 11
and 16 were not charged until he was an adult. Disposition
under the juvenile code was no longer an option. See State
v. Parks, 282 Neb. 454, 803 N.W.2d 761 (2011) (juvenile
court’s jurisdiction ends once juvenile reaches age of majority;
whether sex offender registration laws should apply to juve-
niles not decided). The majority opinion acknowledges that
juvenile offenders have diminished culpability and should be
given an “opportunity and an incentive to demonstrate positive
changes in character, behavior, mind, and spirit”; however,
the lifetime sanctions imposed upon Boche provide no such
opportunity and incentive. The majority aptly quotes from
Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011, 176 L.
Ed. 2d 825 (2010), wherein the U.S. Supreme Court states that
“‘[f]rom a moral standpoint it would be misguided to equate
the failings of a minor with those of an adult, for a greater
possibility exists that a minor’s character deficiencies will be
reformed.’” For many reasons, Boche should demonstrate that
his past childhood character deficiencies have been or can be
reformed; nevertheless, he must live his lifetime knowing that
such reformation will not impact the duration of his registra-
tion and supervision obligations. It concerns me that delays
in prosecuting juveniles, whatever the reason for the delay,
can result in unnecessarily harsh outcomes not consistent with
the goals of the juvenile code—a code that recognizes the
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diminished culpability of children and seeks to be more reha-
bilitative than punitive.
That said, I agree with the majority that the Eighth
Amendment’s prohibition against cruel and unusual punish-
ment is not the source for relief in this case. And our statutes
likewise provide no relief in these circumstances. Neb. Rev.
Stat. § 29-2204(5) (Supp. 2015) states that when
the defendant was under eighteen years of age at the
time he or she committed the crime for which he or she
was convicted, the court may, in its discretion, instead of
imposing the penalty provided for the crime, make such
disposition of the defendant as the court deems proper
under the Nebraska Juvenile Code.
As previously noted, however, disposition under the juvenile
code was no longer an option for Boche because he had passed
the age of majority by the time he was charged. Unfortunately
for Boche, there is no statutory authority giving a sentencing
court any discretion with regard to lifetime registration and
supervision in a situation such as this. However, whether or
not the criminal and juvenile statutes should address these
circumstances is a policy decision for the Legislature, not
the courts.