State v. Sack , 897 N.W.2d 317 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/15/2017 05:13 PM CDT
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STATE v. SACK
Cite as 24 Neb. App. 721State of Nebraska, appellee, v.
Judson L. Sack, appellant.
___ N.W.2d ___
Filed May 23, 2017. No. A-16-851.
1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the lower
court’s determination.
2. ____: ____. 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.
Appeal from the District Court for Madison County: M ark
A. Johnson, Judge. Affirmed.
Chelsey R. Hartner, Chief Deputy Madison County Public
Defender, for appellant.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi
for appellee.
Moore, Chief Judge, and Inbody and Bishop, Judges.
Moore, Chief Judge.
INTRODUCTION
Judson L. Sack appeals from his plea-based conviction in
the district court for Madison County for theft by shoplifting,
third offense. Sack challenges the district court’s use of two
prior convictions for enhancement purposes. Finding no error,
we affirm.
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STATE v. SACK
Cite as 24 Neb. App. 721BACKGROUND
In June 2016, Sack was charged by information with theft
by shoplifting ($500 or less), third offense, a Class IV felony.
The offense occurred on March 5, 2016, after the effective
date of 2015 Neb. Laws, L.B. 605, which changed the grad-
ing of theft. Sack filed a plea in abatement, arguing that his
two prior convictions occurred before L.B. 605 modified the
maximum value of theft from $200 to $500, see Neb. Rev.
Stat. § 28-518(4) (Cum. Supp. 2014 & Reissue 2016), and
therefore could not be used to enhance the current offense. The
district court overruled the plea in abatement, and thereafter,
Sack entered a plea of no contest to the charge pursuant to a
plea agreement in which the parties agreed that if the court
found that Sack had two prior convictions which were suitable
for enhancement, the State would recommend a sentence of
1 year.
On August 9, 2016, an enhancement and sentencing hearing
was held. The State offered into evidence two prior convic-
tions of theft by shoplifting of goods worth less than $200 in
2009 and 2013. Sack again challenged the use of these prior
convictions. The district court found the prior convictions to
be suitable for enhancement under § 28-518(6) (Reissue 2016)
and found Sack guilty of theft by shoplifting, third offense, a
Class IV felony. Sack was sentenced to imprisonment for a
determinate term of 1 year with the Nebraska Department of
Correctional Services.
ASSIGNMENT OF ERROR
Sack assigns that the district court erred in enhancing his
conviction to a third offense.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court’s
determination. State v. Chacon, 296 Neb. 203, ___ N.W.2d
___ (2017).
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STATE v. SACK
Cite as 24 Neb. App. 721ANALYSIS
Sack argues that his two prior convictions occurred before
the effective date of L.B. 605, which amended § 28-518(4),
and thus were not suitable for enhancement.
Prior to the amendments contained in L.B. 605, § 28-518(4)
(Cum. Supp. 2014) provided that theft constituted a Class II
misdemeanor when the value of the thing involved was $200
or less. Following the amendments, § 28-518(4) (Reissue
2016) now provides that theft constitutes a Class II misde-
meanor when the value is $500 or less. Section 28-518(6)
provides that for any third or subsequent conviction under
subsection (4), the person so offending shall be guilty of a
Class IV felony. Subsection (6) remained unchanged following
L.B. 605.
Sack does not contest that he was twice previously con-
victed under the prior version of § 28-518(4); rather, he argues
that the value range change enacted by L.B. 605 modified the
subsection so significantly that a conviction under subsection
(4) as it existed prior to the amendment cannot be considered
to be a conviction under subsection (4) of the present statute.
We disagree.
[2] 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. State v. Chacon, supra. The plain
language of § 28-518(6), which did not change, makes a third
theft conviction under § 28-518(4) a Class IV felony.
Sack relies upon the cases of State v. Suhr, 207 Neb. 553,
300 N.W.2d 25 (1980), and State v. Sundling, 248 Neb. 732,
538 N.W.2d 749 (1995), in support of his argument. In Suhr,
the defendant was convicted of issuing a bad check under Neb.
Rev. Stat. § 28-611 (Reissue 1979). On appeal, the defendant
assigned error to the trial court’s use of a prior conviction for
writing a no-account check, under the predecessor statute,
Neb. Rev. Stat. § 28-1212 (Reissue 1975), for purposes of
enhancing his sentence in the later charge. The Supreme Court
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STATE v. SACK
Cite as 24 Neb. App. 721agreed, finding that the language of the new statute was sub-
stantially different than its predecessor and essentially rede-
fined the offense of issuing a bad check. The court also noted
that § 28-611 affirmatively declared that for an offense to be
a second or subsequent offense, it must be a prior conviction
under § 28-611 (not § 28-1212).
This case is distinguishable from State v. Suhr, supra. First,
while the grade of the offense was amended in § 28-518(4) by
changing the maximum value for a Class II misdemeanor from
$200 to $500, there was not a substantial difference in the lan-
guage of the amended statute or a redefinition of the offense of
theft by shoplifting contained in Neb. Rev. Stat. § 28-511.01(Reissue 2016). Second, the language of § 28-518(6) was not
amended to affirmatively declare that for an offense to be a
third or subsequent conviction, it had to be under subsection
(4) as amended.
State v. Sundling, supra, supports the decision of the dis-
trict court in the present case. In Sundling, the court found
that the statutory amendments to the driving while intoxicated
statutes from chapter 39 to chapter 60 did not preclude use of
prior convictions under chapter 39 for sentence enhancement
of convictions under chapter 60. In reaching this conclusion,
the court noted that there was not a substantive departure
from Neb. Rev. Stat. § 39-669.07 (Cum. Supps. 1990 & 1992)
when the statute was renumbered to Neb. Rev. Stat. § 60-6,196
(Reissue 1993). The court further noted that the same standard
remained for enhancement as each statute provided that a per-
son is guilty of driving while intoxicated, third offense, if such
person “‘has had two or more convictions under this section.’
(Emphasis supplied.)” State v. Sundling, 248 Neb. at 735, 538
N.W.2d at 751. The same rationale is present in the instant case
as § 28-518(6) provides that a person is guilty of a Class IV
felony for “any third or subsequent conviction under subsec-
tion (4) of this section.” (Emphasis supplied.)
We conclude that the district court did not err in finding
that Sack’s two prior convictions under § 28-518(4) were
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STATE v. SACK
Cite as 24 Neb. App. 721suitable to use for enhancement to a third offense under
§ 28-518(6). And, as noted by the district court, the amend-
ment to § 28-518(4) was of no import as applied to this case,
because Sack’s prior convictions would have been classified
under this subsection under either the old or the new version of
the statute; the change in value made no difference.
CONCLUSION
The district court did not err in enhancing Sack’s convic-
tion of theft by shoplifting to a third offense as a result of his
two prior convictions under § 28-518(4), which convictions
occurred prior to the amendment to that section.
A ffirmed.