State v. Wells , 28 Neb. Ct. App. 118 ( 2020 )

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. WELLS
Cite as 28 Neb. Ct. App. 118
State of Nebraska, appellee, v.
Mason J. Wells, appellant.
___ N.W.2d ___
Filed March 10, 2020. No. A-19-257.
1. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
2. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime.
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. ____. An indeterminate sentence is a minimum term and maximum term
or range of time for which the defendant is to be incarcerated, even if
the minimum and maximum number are the same.
5. ____. When a sentence for a misdemeanor is imposed consecutively
or concurrently with sentences for felony convictions, the felony clas-
sifications will dictate whether the misdemeanor sentence should be a
determinate or indeterminate sentence.
Appeal from the District Court for Greeley County: Karin
L. Noakes, Judge. Affirmed in part, and in part vacated and
remanded for resentencing.
Mark Porto, of Porto Law Office, for appellant.
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STATE v. WELLS
Cite as 28 Neb. Ct. App. 118
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Riedmann, Bishop, and Arterburn, Judges.
Bishop, Judge.
Mason J. Wells was initially charged with 19 counts of vari-
ous felony and misdemeanor violations stemming from actions
he took in May 2018 in Greeley County, Nebraska. Pursuant to
a plea agreement, he pled no contest to seven counts related to
an incident involving a firearm, kidnapping, terroristic threats,
false imprisonment, third degree assault, and criminal mis-
chief. The Greeley County District Court sentenced Wells to
various consecutive and concurrent sentences on his felony
and misdemeanor convictions. Wells, who was 20 years old
at the time of sentencing, contends the district court imposed
excessive sentences. The State disagrees, but claims the district
court committed plain error by imposing determinate rather
than indeterminate sentences for some of the convictions. We
affirm in part, and in part vacate and remand for resentencing
on some of the sentences imposed.
BACKGROUND
On the evening of May 4, 2018, Wells was present at a
party taking place outside of Spalding, Nebraska. A number of
juveniles were also present, including the four male victims in
this case: C.H. and W.F., who were both 17 years old; B.K.,
who was 15 years old; and T.B., who was 16 years old. Wells
and another individual, Nicholas Vanderheiden, approached
the victims at the party location and physically assaulted C.H.
and W.F. The four victims got into a vehicle and left the party,
but were followed and overtaken by Wells and Vanderheiden.
C.H. and W.F. were forced out of their vehicle at gunpoint and
were subsequently further assaulted. The assault was disrupted
when a vehicle approached and another young man, B.B.,
intervened. He was also assaulted, but he got away and con-
tacted law enforcement.
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STATE v. WELLS
Cite as 28 Neb. Ct. App. 118
On July 18, 2018, the State filed an information charging
Wells with a total of 19 counts: 8 counts of use of a fire-
arm to commit a felony, each a Class IC felony, pursuant
to Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016); 4 counts
of “Kidnapping-Voluntarily Released Alive” (named victims
C.H., W.F., B.K., and T.B.), each a Class II felony, pursu-
ant to Neb. Rev. Stat. § 28-313(1)(c) and (3) (Reissue 2016);
4 counts of terroristic threats (named victims C.H., W.F.,
B.K., and T.B.), each a Class IIIA felony, pursuant to Neb.
Rev. Stat. § 28-311.01 (Reissue 2016); and 3 counts of third
degree assault (named victims C.H., W.F., and B.B.), each a
Class I misdemeanor, pursuant to Neb. Rev. Stat. § 28-310
(Reissue 2016).
Pursuant to a plea agreement, the State filed an amended
information on January 11, 2019, charging Wells with seven
counts: possession of a deadly weapon (firearm) during
the commission of a felony, a Class II felony, pursuant to
§ 28-1205(2)(c) (count I); “Kidnapping-Voluntarily Released
Alive” (named victim W.F.), a Class II felony, pursuant to
§ 28-313(1)(c) and (3) (count II); terroristic threats (named
victim C.H.), a Class IIIA felony, pursuant to § 28-311.01
(count III); second degree false imprisonment (named vic-
tims T.B. and B.K.), a Class I misdemeanor, pursuant to Neb.
Rev. Stat. § 28-315 (Reissue 2016) (counts IV and V); third
degree assault (named victim B.B.), a Class I misdemeanor,
pursuant to § 28-310 (count VI); and “Criminal Mischief $500-
$1,500,” a Class II misdemeanor, pursuant to Neb. Rev. Stat.
§ 28-519(1) and (4) (Reissue 2016) (count VII).
At a hearing on January 14, 2019, Wells pled no contest to
all seven counts in the amended information. According to the
factual basis provided by the State:
On the evening of May 4, 2018[,] a party was held at
[a named location] about seven miles outside Spalding,
Nebraska in Greeley County. The event was a going
away party for [a person] leaving for school out of state.
A number of juveniles were present at the event; [W.F.],
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[C.H.], [T.B.], B.K.], and . . . other witnesses . . . , as
were defendants . . . Wells and . . . Vanderheiden.
Throughout the evening [W.F.] was approached on
more than one occasion by another defendant who told
[W.F.] he was going to fight him. Wells made the same
statement to several others at the party. . . . Approximately
11:30 p.m. [W.F.], [C.H.], [T.B.], [B.K.], and [one other
person], all juveniles, got into [W.F.’s] pickup to leave the
party. Wells approached the pickup and repeatedly told
[W.F.] they were going to fight. . . .
[W.F.] repeatedly told Wells they were not going to
fight and asked to just let them leave. Wells repeated his
demands that [W.F.] and the passengers get out of his
pickup. Wells stated, “Get out of the pickup or it’s going
to be worse for all of you. Just get out.” [W.F.] and the
other passengers . . . exited the pickup.
[W.F.] repeatedly told Wells he did not want to fight
him and turned toward his pickup. Wells struck [W.F.]
in the face two times and in the back one time with
closed fists.
The four victims; [W.F.], [C.H.], [T.B.] and [B.K.], got
back into [W.F.’s] pickup. [W.F.] locked his door. Wells
went over to the front passenger side of the pickup where
[C.H.] was sitting with the door open. Wells demanded
[C.H.] get out. [C.H.] refused to do so, and Wells struck
[C.H.] in the face while [C.H.] was seated in the pickup.
Another person told Wells to get off [C.H.] and let
him go. At this point Vanderheiden . . . grabbed the bug
guard on [W.F.’s] pickup and broke off a piece, then came
around to the driver’s side and broke the driver’s side
mirror. . . .
One of Wells’ friends grabbed . . . Wells, restraining
him and yelled at [W.F.] to go. [W.F.] started the pickup
and left immediately with [C.H.], [T.B.], and [B.K.] in the
pickup with him.
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STATE v. WELLS
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[W.F.] was driving down WPA Road when a pickup
driven by Wells, with Vanderheiden as his passenger,
overtook [W.F.’s] pickup and swung the pickup sideways
on the road effectively blocking the road so [W.F.] could
not pass. [W.F.] put his vehicle in reverse and started to
back up to get away from Wells and Vanderheiden.
At that point Wells exited his pickup holding a shotgun,
which he pointed at [W.F.] Vanderheiden also exited the
pickup holding a rifle. Wells pointed his weapon at [C.H.]
and demanded he get the fuck out of the vehicle. Wells
pulled [C.H.] out of the passenger side of [W.F.’s] pickup.
During the same time, Vanderheiden stated, “We could
kill all of you and bury you and no one would know.” The
same statement, or similar words, were repeated several
times by Vanderheiden during this course of events, and
in the presence of Wells, as well as [W.F.], [C.H.], [T.B.],
and [B.K.], the victims.
Wells stated, “I’m going to get in [W.F.’s] truck and
you go get in with [Vanderheiden].” Vanderheiden pointed
his rifle at [C.H.] and walked [C.H.] over to Wells’
pickup. Vanderheiden then forced [C.H.] into Wells’
pickup. Wells got into [W.F.’s] pickup in the front pas-
senger seat. Vanderheiden proceeded to drive off in Wells’
pickup, and Wells told [W.F.] to follow [Vanderheiden].
[W.F.] complied. During the drive Wells stated to [W.F.],
[T.B.], and [B.K.], “You guys made this a lot worse
by leaving.”
After traveling approximately a half to three-quarters
of a mile, Vanderheiden stopped Wells’ pickup. [W.F.]
stopped as well. Vanderheiden told [C.H.] to get out with
your hands up or I’ll put a round in your dome. [C.H.]
exited Wells’ pickup. Vanderheiden pointed a rifle at
[C.H.] and they both walked towards [W.F.’s] pickup.
Vanderheiden told [C.H.], “I’ve been waiting to do this
for a long time”, and “I will kill you and bury you in
a hog confinement”. Wells yelled at [C.H.] and [W.F.]
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warning them that if they tried anything he wouldn’t
hesitate to shoot all of us. [T.B.] and [B.K.] were in this
presence [sic] when all of this occurred. They’re in the
backseat of the pickup.
Wells exited [W.F.’s] pickup and spoke briefly with
Vanderheiden. Vanderheiden then approached [W.F.’s]
door and opened it. After he yelled continually at [W.F.],
Vanderheiden punched [W.F.], pulled him out of the
pickup and continued to assault him. At that point Wells
. . . continued to assault [W.F.] At some point [W.F.] got
back into his pickup. Wells then told him again to exit
the pickup. [W.F.] did so, walked around to the passenger
side of the pickup.
At that point, Vanderheiden demanded that [W.F.] get
back into his vehicle. As [W.F.] was walking back towards
the driver’s side of the pickup, Vanderheiden jabbed the
butt of the rifle he was holding into [W.F.’s] back and
told him, “I will shoot you.” Right as [W.F.] was getting
back into his pickup, Vanderheiden pulled him out again
and started hitting [W.F.] [C.H.] and Wells were behind
[W.F.’s] pickup.
At this point, [B.B.], who was driving along WPA
Road, came upon this scene. He jumped out of his pickup
and began yelling at Wells. Wells put his weapon down
on the pickup, and [B.B.] then pushed Vanderheiden, who
still had a rifle. Wells ran toward [B.B.] and began hitting
and kicking [B.B.] Vanderheiden began assaulting [B.B.],
as well. The assault ended when [B.B.] got free, returned
to his pickup, and left. Wells and Vanderheiden told
[W.F.] and [C.H.] to leave. Wells stated, “[B.B.’s] dead
now.” [C.H.] and [W.F.] got back into [W.F.’s] pickup and
left. So, the four victims left in [W.F.’s] pickup.
[B.B.] contacted [law enforcement]. Wells and
Vanderheiden left the scene. Several contacts were made
to 911, and [law enforcement was] dispatched to the
scene. Law enforcement arrived at [the location of the
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STATE v. WELLS
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going away party] where Wells’ pickup was found parked.
On seeing weapons in plain sight in the vehicle, law
enforcement confiscated the weapons in the vehicle,
which included a .308 caliber rifle and a 12-gauge tacti-
cal shotgun described by victims, as well as high-capacity
magazines for the shotgun and three other weapons.
The juveniles, victims’ names and ages at the time of
the offense: [W.F.], 17 years old; [C.H.], 17 years old;
[T.B.], 16 years old; and [B.K.], 15 years old. These
events did take place in Greeley County, Nebraska.
Upon inquiry from the district court, the State said that B.B.
was 20 years old. When asked by the court why he wanted
to fight W.F., Wells stated, “Alcohol. There was some stuff
between a girlfriend and my kid.” And when asked why he
was driving around with guns in his vehicle, Wells responded,
“We were trap shooting earlier that day.” He further stated, “I
always have my .22 and my .308 with me. That’s just one gun
I always carried, and then the rest were shotguns that we had
there to use to trap shoot.” Defense counsel also informed the
court that the going away party was at a trapshooting facil-
ity. The district court accepted Wells’ no contest pleas to each
count and found him guilty of the same. The case was set
for sentencing.
After a hearing on February 25, 2019, the district court
sentenced Wells to 5 to 10 years’ imprisonment on count I, 5
to 10 years’ imprisonment on count II, 3 years’ imprisonment
on count III, 1 year’s imprisonment each on counts IV, V, and
VI, and 6 months’ imprisonment on count VII. The sentences
in counts II through VII were to be served concurrently with
each other, but consecutively to count I. Wells was given credit
for 4 days’ time served. Additionally, Wells was ordered to
pay restitution in the amount of $606.94 to W.F. and $343.86
to C.H.; restitution was to be paid “jointly and severally with
. . . Vanderheiden within 2 years of [Wells’] final release date
from imprisonment.”
Wells appeals.
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STATE v. WELLS
Cite as 28 Neb. Ct. App. 118
ASSIGNMENT OF ERROR
Wells assigns the district court erred by imposing exces-
sive sentences.
STANDARD OF REVIEW
[1] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Leahy, 301 Neb. 228, 917 N.W.2d
895 (2018).
ANALYSIS
Wells asserts that the district court imposed excessive sen-
tences and that upon consideration of all of the appropriate
sentencing factors, and considering mitigating circumstances,
an overall lesser sentence would have been more appropriate.
The State contends that Wells’ sentences were not excessive,
but that the sentences in counts III through VII did involve
plain error, as discussed below.
[2,3] In determining a sentence to be imposed, relevant fac-
tors customarily considered and applied are 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 amount of violence
involved in the commission of the crime. Id. The appropriate-
ness 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 sur-
rounding the defendant’s life. Id.
Wells was 20 years old at the time of sentencing. According
to the presentence report (PSR), his marital status was single,
but he was in a relationship with the mother of his child.
He graduated from high school in 2017. At the time of the
presentence investigation interview, he reported having been
employed as a welder for the past week and being previously
employed at a hog barn and as a farmhand.
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STATE v. WELLS
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Wells’ criminal history includes a conviction for “MIP-
Alcohol,” for which he was sentenced to 2 days’ jail time and
12 months’ probation; however, his probation was revoked,
and he was sentenced to 15 days’ jail time. He has also been
cited for numerous traffic offenses for which he received
fines. His current convictions were for the amended charges
of possession of a firearm during the commission of a felony,
kidnapping W.F., making terroristic threats against C.H., the
second degree false imprisonments of T.B. and B.K., the third
degree assault of B.B., and “Criminal Mischief $500-$1,500”
for damage caused to W.F.’s pickup.
The probation officer conducted a “Level of Service/Case
Management Inventory.” Wells was assessed as an overall
“[m]edium [h]igh” risk to reoffend. He scored “[h]igh” in
the criminogenic risk factor domains for leisure/recreation
and alcohol/drug problem. He scored “[m]edium” risk in the
domains for criminal history, companions, procriminal attitude/
orientation, and antisocial pattern. And he scored “[v]ery [l]ow”
risk in the domains for education/employment and family/
marital. He scored in the “problem-risk range” in the areas of
alcohol and violence on the “Substance Abuse Questionnaire.”
During the presentence investigation interview, Wells reported
that his father used to be an alcoholic and was addicted to
opiates, but has been clean for some unknown period of time.
Wells reported first trying alcohol around age 14, consuming
alcohol “‘a lot’” from ages 16 to 18, and consuming alcohol
almost every night by the age of 19. He reported that he last
used alcohol the night of the incident that led to his current
convictions. After his arrest, he attended treatment from May
to June 2018, where he was diagnosed with “Alcohol Use
Disorder Severe.” Wells reported that the day of the incident
leading to his convictions involved trapshooting and alcohol
consumption. According to the PSR, Wells “does feel he was
in the wrong in this incident as he stated, ‘this is completely
stupid and I was not thinking straight.’” “In regard to the vic-
tims, [Wells] stated this was a ‘stupid drunk incident.’” Wells
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Cite as 28 Neb. Ct. App. 118
“reported this is not the only time an incident like this has
happened,” but “he ‘just got caught this time.’” According to
the PSR, Wells was on probation when this incident occurred.
The probation officer stated, “Considering the nature of this
incident, this officer feels incarceration is appropriate. I would
consider [Wells] an appropriate candidate for probation/
post-release supervision with the class of crimes he is eligible
for.” However, the probation officer recommended certain
conditions if the court were to sentence Wells to probation or
post-release supervision.
At the sentencing hearing, Wells stipulated to a restitu-
tion payment (jointly and severally) of $606.94 to W.F. and
$343.86 to C.H. The State read victim impact statements by
C.H. and W.F. on the record; the statements noted emotional
and psychological damage from the incident.
The State argued that “probation won’t work at all” as Wells
had been “been given probation and he did not comply with
probation.” The State also claimed Wells’ “behavior of bul-
lying and physical violence has been escalating since he was
14 years old.” (We note the PSR notes “multiple disciplinary
issues” when Wells was in school to include having a rifle
on school property and suspensions due to bullying, violat-
ing off-campus lunch policies, and showing disrespect toward
teachers. Additionally, in C.H.’s victim impact statement, he
recounted being assaulted by Wells in the past, as well as
Wells’ assaulting another person in the past.) The State noted
Wells’ actions were not provoked by his victims and argued
that “insignificant imprisonment term[s] would depreciate the
seriousness of these crimes, [and] promote disrespect for
the law.”
Wells’ counsel provided some background as to Wells which
counsel believed was “critically important in explaining how
we arrive here.” Counsel noted that Wells comes from a fam-
ily with divorced parents (for which Wells blames himself)
and alcoholism. After his grandfather passed away, Wells had
a “downhill spiral” and drank more. Later, Wells was in a car
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accident with some friends; he was not the driver, but was
the first to discover one of his friends had been killed in the
accident. Rather than seek help through counseling, Wells con-
tinued to drink. Counsel stated:
[A]ll of these things are building up inside of [Wells] and
it culminated in what we are here for today; an incident
that was alcohol-fueled and . . . was the result of alcohol
and anger . . . and just a lot of problems that hadn’t been
addressed that should have been addressed earlier.
Counsel argued that Wells did not show up looking to use
his guns as weapons, but, rather, he was “shooting trap with
these kids.” Counsel stated, “I don’t think it would have hap-
pened but for the alcohol, and but for the fact that they were
at a shooting range with guns.” Counsel noted that Wells went
directly from jail to residential treatment and completed that
program. Further, Wells “stepped up to his obligations” to
his child. Counsel asked the district court to order a sentence
of probation.
Wells spoke in his own behalf and apologized to “all you
guys and families.” He also recounted his upbringing, his
grandfather’s passing, the car accident he was in, and how
he coped by drinking alcohol. He stated he was glad he
went to treatment following this incident because “[i]t needed
to happen.”
The district court stated that it had considered the relevant
sentencing factors. The court acknowledged that Wells was
present when his codefendant was sentenced. The court added:
These are the most difficult kind of cases for me as a
Judge. And, I understand that you had some difficulties
that maybe not every kid has to deal with, but there’s
something going on with you where your sorrow is
transferred to anger and violence . . . . That’s something
that . . . the public needs to be protected from. . . . Here
you’re at a party, you want to fight these people, I still
don’t have a real good reason as to why you wanted to
fight them. . . .
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[T]hey could not have done more to avoid any con-
frontation with you, yet you persisted while they were at
the party trying to fight them. You had to be held back.
They escape you once, you track them down again. . . .
[D]runk or not, that is not normal behavior . . . .
The court also questioned the reason Wells was carrying
around tactical weapons and high-capacity magazines, noting
that it was “one thing” to have a shotgun if they were trap-
shooting. Wells stated that the tactical rifle was a shotgun and
that he brought it for trapshooting. The court also noted that
Wells forced the victims into different vehicles at gunpoint and
threatened them and that if B.B. would not have shown up to
diffuse the situation “who knows what could have happened”;
but “instead of thanking [B.B.,] [Wells] and . . . Vanderheiden
assault[ed] him, too, at gunpoint.” The court found that Wells
was not a good candidate for probation and sentenced him to 5
to 10 years’ imprisonment on count I (possession of a firearm
during the commission of a felony), 5 to 10 years’ imprison-
ment on count II (kidnapping), 3 years’ imprisonment on count
III (terroristic threats), 1 year’s imprisonment on count IV
(second degree false imprisonment), 1 year’s imprisonment on
count V (second degree false imprisonment), 1 year’s impris-
onment on count VI (third degree assault), and 6 months’
imprisonment on count VII (criminal mischief). The sentences
in counts II through VII were to be served concurrently with
each other, but consecutively to count I. Wells was given credit
for 4 days’ time served. Additionally, Wells was ordered to
pay restitution in the amount of $606.94 to W.F. and $343.86
to C.H.; restitution was to be paid “jointly and severally with
. . . Vanderheiden within 2 years of [Wells’] final release date
from imprisonment.”
Counts I and II
Wells was convicted of possession of a firearm during the
commission of a felony (count I) and kidnapping (count II),
each a Class II felony. A Class II felony is punishable by
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1 to 50 years’ imprisonment. See Neb. Rev. Stat. § 28-105(1)
(Reissue 2016). The district court sentenced Wells to 5 to 10
years’ imprisonment for possessing a firearm during the com-
mission of a felony and 5 to 10 years’ imprisonment for the
kidnapping, with the sentences to be served consecutively. His
sentences were within the statutory range. However, Wells
argues the sentences constituted an abuse of discretion “when
considered in the context of Wells’ background; his relatively
minor and non-violent criminal record; the unique factual cir-
cumstances that led to the presence of the firearms; and the
significantly harsher punishment imposed upon Wells in rela-
tion to . . . Vanderheiden.” Brief for appellant at 10. We note
that Vanderheiden pled no contest to and was convicted of
the same charges as Wells and that Vanderheiden’s sentences
were the same as Wells’ sentences, except that Vanderheiden
was sentenced to 3 to 10 years’ imprisonment for kidnap-
ping rather than 5 to 10 years’ imprisonment. See State
v. Vanderheiden, No. A-19-279, 2019 WL 3934770 (Neb.
App. Aug. 20, 2019) (selected for posting to court website).
Having considered the relevant factors in this case, we find
that Wells’ sentences on counts I and II were not excessive
or an abuse of discretion and that his sentences are therefore
affirmed. See State v. Leahy, 301 Neb. 228, 917 N.W.2d 895
(2018) (sentence imposed within statutory limits will not be
disturbed on appeal absent abuse of discretion by trial court;
it is within trial court’s discretion to direct that sentences
imposed for separate crimes be served either concurrently
or consecutively).
Count III
[4] Wells was convicted of one count of terroristic threats
(Count III), a Class IIIA felony. He was sentenced to 3 years’
imprisonment. A Class IIIA felony is punishable by up to
3 years’ imprisonment and 18 months’ post-release super-
vision, a $10,000 fine, or both; there is no minimum sen-
tence of imprisonment, but there is a minimum of 9 months’
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post-release supervision if imprisonment is imposed. See
§ 28-105. However, a person sentenced to imprisonment for
a Class II felony and sentenced concurrently or consecutively
to imprisonment for a Class IIIA felony shall not be subject to
post-release supervision. See § 28-105(6). Additionally, Neb.
Rev. Stat. § 29-2204.02(4) (Reissue 2016) provides in relevant
part that for any sentence of imprisonment for a Class IIIA
felony for an offense committed on or after August 30, 2015,
imposed consecutively or concurrently with a sentence of
imprisonment for a Class II felony, the court shall impose an
indeterminate sentence within the applicable range in § 28-105
that does not include a period of post-release supervision. See,
also, State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018)
(indeterminate sentence is minimum term and maximum term
or range of time for which defendant is to be incarcerated, even
if minimum and maximum number are same).
The district court sentenced Wells to 3 years’ imprisonment
for making terroristic threats, with the sentence concurrent with
count II, but consecutive to count I (both Class II felonies).
Having considered the relevant factors in this case, we find
that Wells’ sentence on count III was not excessive. However,
as noted by the State, the sentence on count III needed to be an
indeterminate sentence pursuant to § 29-2204.02(4), because
Wells was also sentenced on the two Class II felonies; the
court’s imposition of a determinate sentence, rather than an
indeterminate sentence, on count III constitutes plain error.
Given this plain error, we vacate Wells’ sentence for his con-
viction on count III and remand that count for resentencing.
See State v. Thompson, 301 Neb. 472, 919 N.W.2d 122 (2018)
(finding plain error and vacating sentences and remanding
cause for resentencing where sentences did not comply with
§ 29-2204.02(4)). See, also, State v. Vanderheiden, supra.
Counts IV Through VII
A similar issue exists with respect to the sentences imposed
on the four misdemeanor counts. Wells was convicted of two
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counts of second degree false imprisonment, each a Class I
misdemeanor (counts IV and V); one count of third degree
assault, a Class I misdemeanor (count VI); and one count of
“Criminal Mischief $500-$1,500,” a Class II misdemeanor
(count VII). A Class I misdemeanor is punishable by up to 1
year’s imprisonment, a $1,000 fine, or both. See Neb. Rev.
Stat. § 28-106 (Reissue 2016). And a Class II misdemeanor is
punishable by up to 6 months’ imprisonment, a $1,000 fine, or
both. See § 28-106.
[5] Ordinarily, a sentence of imprisonment for a misde-
meanor is served in the county jail, but when the sentence is to
be served concurrently or consecutively with a felony convic-
tion and the combined sentences total more than 1 year, the
misdemeanor sentence may be served under the jurisdiction
of the Department of Correctional Services. See § 28-106(2).
When a sentence for a misdemeanor is imposed consecutively
or concurrently with sentences for felony convictions, the
felony classifications will dictate whether the misdemeanor
sentence should be a determinate or indeterminate sentence.
Section 29-2204.02(5) states:
For any sentence of imprisonment for a misdemeanor
imposed consecutively or concurrently with a sentence
of imprisonment for a Class III, IIIA, or IV felony for an
offense committed on or after August 30, 2015, the court
shall impose a determinate sentence within the applicable
range in section 28-106 unless the person is also commit-
ted to the Department of Correctional Services in accord­
ance with section 29-2204 for (a) a sentence of imprison-
ment for a Class III, IIIA, or IV felony committed prior to
August 30, 2015, or (b) a sentence of imprisonment for a
Class I, IA, IB, IC, ID, II, or IIA felony.
In this case, the misdemeanor sentences were imposed
concurrently with count III (terroristic threats, a Class IIIA
felony), which ordinarily would have called for determinate
sentences. However, as noted above, § 29-2204.02(5) pro-
vides an exception to the determinate sentences, because
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Wells was also committed to the Department of Correctional
Services for sentences of imprisonment on his convictions for
his Class II felonies.
The district court sentenced Wells to determinate sentences
of 1 year’s imprisonment for each count of second degree false
imprisonment and for the third degree assault, and it sentenced
Wells to 6 months’ imprisonment for the criminal mischief.
The misdemeanor sentences (counts IV, V, VI, and VII), along
with count II (Class II felony) and count III (Class IIIA fel-
ony), were to run concurrently with each other but consecutive
to count I (Class II felony). Having considered the relevant
factors in this case, we find that Wells’ sentences on counts
IV through VII were not excessive. However, the sentences on
counts IV through VII needed to be indeterminate sentences
pursuant to § 29-2204.02(5), because Wells was also sentenced
on a Class IIIA felony and two Class II felonies; the court’s
imposition of determinate, rather than indeterminate, sentences
on counts IV through VII constitutes plain error. Given this
plain error, we vacate Wells’ sentences for his convictions on
counts IV through VII and remand those counts for resentenc-
ing. See State v. Thompson, 301 Neb. 472, 919 N.W.2d 122
(2018). See, also, State v. Vanderheiden, No. A-19-279, 2019
WL 3934770 (Neb. App. Aug. 20, 2019) (selected for posting
to court website).
CONCLUSION
For the reasons stated above, we affirm the sentences
imposed on Wells as to counts I and II. However, we find
plain error as to the sentences on the remaining counts. Thus,
we vacate the sentences imposed on counts III through VII,
and we remand the matter to the district court for resentencing
on counts III through VII in accordance with § 29-2204.02(4)
and (5).
Affirmed in part, and in part vacated
and remanded for resentencing.