State v. Howard ( 2018 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. HOWARD
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
ERNEST L. HOWARD, APPELLANT.
Filed May 22, 2018. No. A-17-1013.
Appeal from the District Court for Seward County: JAMES C. STECKER, Judge. Affirmed.
Tina M. Marroquin, Seward County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
MOORE, Chief Judge.
INTRODUCTION
Ernest L. Howard was convicted in the district court for Seward County of possession of a
controlled substance. The district court orally imposed a sentence, but imposed a different sentence
in its written order. Since the orally pronounced sentence was invalid and of no effect, the court
had the authority to impose any sentence which could have been validly imposed in the first place.
Because the sentence subsequently imposed in the court’s written order was valid, we affirm.
BACKGROUND
On April 10, 2017, Howard was charged by information with possession of a controlled
substance, a Class IV felony. He thereafter pled guilty to the charge. At the sentencing hearing
held September 1, the district court orally pronounced a sentence of 6 months’ imprisonment
followed by 6 months’ postrelease supervision. However, in its written order entered the same day,
the court sentenced Howard to 6 months’ imprisonment followed by 12 months’ postrelease
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supervision. Howard was granted 170 days’ credit for time previously served. On September 8,
Howard filed a motion for order nunc pro tunc, pointing out the discrepancy and asking for an
order correcting the sentence to impose a term of 6 months’ postrelease supervision. The motion
recited that the Deputy Seward County Attorney indicated no objection to an order correcting the
sentence as requested. However, the motion was not scheduled to be heard by the court until
October 2 and Howard filed his notice of appeal on September 21.
ASSIGNMENTS OF ERROR
As restated, Howard assigns that the district court erred by changing the postrelease
supervision portion of his sentence from its oral pronouncement of 6 months’ postrelease
supervision to its written order of 12 months’ postrelease supervision.
STANDARD OF REVIEW
This appeal presents a question of law. 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. State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017); State v.
Minnick, 22 Neb. Ct. App. 907, 865 N.W.2d 117 (2015).
ANALYSIS
Howard argues that the court erred in changing the period of postrelease supervision in its
written order and that the oral pronouncement should control. When a sentence orally pronounced
at the sentencing hearing differs from a later written sentence, the former prevails. State v.
Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016); State v. Sims, 277 Neb. 192, 761 N.W.2d 527
(2009). Howard asks that we set aside the written sentencing order and impose the sentence as first
pronounced at the sentencing hearing.
The State, in its brief on appeal, argues that the oral pronouncement was invalid and that
consequently, the written sentencing order is valid. Howard was convicted of a Class IV felony
which occurred on March 16, 2017. Therefore, the sentencing provisions of Neb. Rev. Stat.
§ 28-105 (Supp. 2017) apply to his conviction. For a Class IV felony, the statute provides for a
maximum sentence of 2 years’ imprisonment and 12 months’ postrelease supervision or $10,000
fine, or both. There is no minimum sentence for imprisonment, however if imprisonment is
imposed there is a minimum of 9 months’ postrelease supervision.
Here, the district court did impose a sentence of imprisonment and therefore the minimum
period of postrelease supervision allowed by law is 9 months. The State argues that the district
court’s oral pronouncement of 6 months’ postrelease supervision rendered the sentence invalid.
The State contends that because the written order was not modifying a validly pronounced oral
sentence, the proposition set forth above from State v. Olbricht, supra, is inapplicable. Rather, the
State suggests that since the oral sentence was invalid, it is of no effect and the district court could
impose any sentence which could have been validly imposed in the first place, citing State v.
Minnick, supra. See, also, State v. Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995) (ambiguous
oral pronouncement of whether sentences were imposed consecutively or concurrently was invalid
but validity was cured by court’s written journal notation correctly setting forth consecutive
sentences as required by relevant statute); State v. Brauer, 16 Neb. Ct. App. 257, 743 N.W.2d 655
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(2007) (if oral pronouncement of sentence invalid but written judgment imposing sentence valid,
written judgment considered controlling). We agree. The district court’s oral pronouncement of
sentence was not valid under § 28-105. The district court’s written order of sentence is a valid
sentence and is controlling.
Accordingly, we affirm the written order of sentence, imposing 6 months’ imprisonment,
followed by 12 months’ postrelease supervision.
CONCLUSION
Because the original oral sentence was invalid, the district court did not err in imposing a
new valid sentence in its written order. Accordingly, we affirm Howard’s conviction and sentence.
AFFIRMED.
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