State v. Country ( 1975 )

Clinton, J.

The issue in this case is whether the doctrine enunciated in State v. Randolph, 186 Neb. 297, 183 N. W. 2d 225, that where a criminal statute is amended by mitigating the punishment, after the commission of a prohibited act but before final judgment, the punishment is that provided by the amendatory act unless the Legislature has specifically provided otherwise, applies to require reduction of a sentence imposed for conviction of the crime of rape under section 28-408, R. S. Supp., 1974. The question arises because of the enactment of L.B. 23, Laws 1975, p. 92, which redefined most nonconsensual sexual crimes and placed them in two categories of sexual assault.

The defendant entered a plea of nolo contendere to a charge of forcible rape and, as part of a bargain in connection with said plea, a second count charging him with being an habitual criminal was dismissed. The trial judge imposed a sentence of 10 to 30 years in the Nebraska Penal and Correctional Complex. After his conviction and sentence and while this appeal was pending, L.B. 23 was enacted. .The defendant appeals and asserts that the sentence is excessive and seeks the benefit of the doctrine announced in Randolph. If Randolph applies in this case, the maximum effective penalty which could be imposed would be 8% to 25 years.

The doctrine of Randolph is founded upon the premise that where the Legislature amends a statute to ameliorate the penalty for a crime, it is the legislative intent that the lesser penalties apply in all cases where the judgment is not final, including cases on appeal.

Accordingly, our inquiry here should be to determine whether we can garner from a review of the statutes a legislative intent to ameliorate the penalty for rape under L.B. 23, or whether a different intention seems to be indicated.

For the following reasons which we develop more fully later in this opinion we conclude that Randolph ought not to be applied in the case of L.B. 23. The first is that L.B. 23 is not merely an amendatory act changing the penalty for a particular offense. It defines new crimes. Secondly, the new statute contains requirements in connection with the determination of punishment which incline us to the view that the Legislature did not contemplate retroactive application to convictions under former statutes. Thirdly, the primary legislative purpose in the enactment of L.B. 23 was not the reduction of penalties. The reduction was simply a part of the general overhaul of the statutes on sexual crimes. Fourthly, where, as here, a charge of being an habitual criminal was dismissed as a part of a plea bargain, it would be unfair to the State to apply Randolph because both the State and the defendant made the bargain in light of the penalty for rape as it existed at the time the bargain was made.

L.B. 23 repealed sections 28-407, R. R. S. 1943, and 28-408, R. S. Supp., 1974, and amended section 28-409, R. R. S. 1943. Section 28-407, R. R. S. 1943, defined the crime of rape against a sister or daughter and provided for a term of life imprisonment. Section 28-408, R. S. Supp., 1974, defined common law and statutory rape and provided for a penalty of imprisonment for not more than 50 nor less than 3 years. L.B. 23 also eliminated from section 28-409, R. R. S. 1943, the crime of assault with intent to commit rape, the prescribed penalty for which was not more than 15 nor less than 2 years.

L.B. 23 defines two crimes: Sexual assault in the first degree and sexual assault in the second degree. Sexual assault in the first degree includes within the scope of its definition rape, forcible sodomy, and statutory rape, as well as other forms of sexual assault not heretofore defined by our statutes. § 28-408.03 (1), R. S. Supp., 1975. Sexual assault in the second degree includes within its definition assault with intent to commit rape and other sexual assaults, some of which could have been prosecuted formerly only as simple assault and battery. § 28-408.04(1), R. S. Supp., 1975.

The section of L.B. 23 defining the new crime of sexual assault in the first degree imposes a penalty of not less than 1 and not more than 25 years and requires that in determining the punishment for this crime the judge shall consider “whether the actor shall have caused serious personal injury to the victim.” § 28-408.03(2), R. S. Supp., 1975. The section of L.B. 23 defining sexual assault in the second degree limits punishment to 1 year unless “the actor shall have caused serious personal injury to the victim.” § 28-408.04(2), R. S. Supp., 1975. Under the provisions of the former statutes defining rape and assault with intent to commit rape, the punishment depended upon no such considerations.

The record before us discloses none of the details of the commission of the crime in question. It cannot be determined from the record before us whether or not serious personal injury, as that term is defined by L.B. 23, has occurred. This may in part, of course, be because of the nature of the plea entered.

It seems to us that the provisions relating to the determination of punishment make it necessary that before a judge can, on a plea of guilty or nolo contendere, determine a sentence he must in some manner determine the fact and extent of the serious personal injury inflicted on the victim by the actor. Probably, this determination can be made only by means of an evidentiary hearing unless serious personal injury is admitted. The Legislature, when it enacted L.B. 23, did not contemplate that cases pending on appeal would require evidentiary hearing to determine a new and reduced penalty. Yet as a practical matter this is the only way in which the Randolph doctrine could be made applicable in the present and similar cases.

In addition to the provisions of L.B. 23 already mentioned, section 28-408.01, R. S. Supp., 1975, contains recitals which indicate that a primary purpose of the statute is procedural and directed to protecting the dignity of the victim and also to insure effective due process for the person charged. These purposes are effectuated by section 28-408.05, R. S. Supp., 1975. This latter section provides for an in camera hearing to enable the judge to determine the relevance of the victim’s or the alleged offender’s past sexual conduct and authorizes the judge to determine the “extent” of admissibility of evidence on these points. It also provides that past sexual activity between the victim and. any person other than the defendant shall not be admitted into evidence unless the consent of the victim is at issue and unless it is finally established at an in camera hearing that “. . . such activity shows such a relation to the conduct involved in the case and tends to establish a pattern of conduct or behavior on the part of the victim as to be relevant to the issue of consent.” § 28-408.05(3), R. S. Supp., 1975.

L.B. 23, at least in some types of cases, makes the sex of the actor or the victim irrelevant. An analysis of the statute seems to make it clear that previous to the enactment of L.B. 23 a female could not be convicted, except as an accessory, of the crimes as previously defined.

For the reasons indicated we believe it is clear that the Legislature did not contemplate when it enacted L.B. 23 that it was simply changing a penalty and that Randolph would be applicable.

In addition to the factors already discussed, there is another consideration which bears weight under the facts of this case. The defendant, pursuant to plea bargain, secured the dismissal of an habitual criminal charge. Under the provisions of the habitual criminal statute the possible penalty is a maximum of 60 years imprisonment. § 29-2221, R. S. Supp., 1974. To apply Randolph under the circumstances would be unfair to the State by introducing after the fact an element which it had no opportunity to consider when it made the bargain. The defendant has had the complete benefit of that bargain. The State obviously cannot in this case refile the habitual criminal count.

For the reasons set forth we hold that the doctrine of State v. Randolph, supra, is not applicable to a sentence for rape imposed before L.B. 23 became effective.

Affirmed.

Bosiaugh, J., concurs in the result.