State v. Castaneda , 295 Neb. 547 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/13/2017 09:09 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. CASTANEDA
Cite as 295 Neb. 547
State of Nebraska, appellee, v.
Juan E. Castaneda, appellant.
___ N.W.2d ___
Filed January 13, 2017. No. S-16-273.
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. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
3. Sentences: Due Process: Appeal and Error. Whether the district
court’s resentencing of a defendant following a successful appeal vio-
lates the defendant’s due process rights presents a question of law.
4. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the conclusion
reached by the lower court.
5. Sentences. When imposing a sentence, a sentencing judge should con-
sider the following factors related to the defendant: (1) age, (2) mental-
ity, (3) education and experience, (4) social and cultural background, (5)
past criminal record or record of law-abiding conduct, (6) motivation
for the offense, (7) nature of the offense, and (8) amount of violence
involved in the commission of the crime.
6. Criminal Law: Sentences: Minors: Aggravating and Mitigating
Circumstances. Neb. Rev. Stat. § 28-105.02(2) (Reissue 2016) includes
a nonexhaustive list of mitigating factors that a sentencing court must
take into consideration when sentencing a juvenile for a Class IA
felony.
7. Sentences. In considering a sentence, a court is not limited in its discre-
tion to any mathematically applied set of factors.
8. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
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STATE v. CASTANEDA
Cite as 295 Neb. 547
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
9. ____. It is within a trial court’s discretion to direct that sentences imposed
for separate crimes be served either concurrently or consecutively.
10. Constitutional Law: Minors: Sentences. Life imprisonment without
the possibility of parole for juveniles convicted of nonhomicide offenses
is unconstitutional; such juvenile offenders must be given some mean-
ingful opportunity to obtain release based on demonstrated maturity and
rehabilitation.
11. Constitutional Law: Homicide: Minors: Sentences. There is no cat-
egorical bar against life sentences without parole for juveniles con-
victed of homicide offenses; instead, the sentencing court must consider
specific, individualized factors before handing down a sentence of life
imprisonment without parole for a juvenile.
12. Due Process: New Trial: Convictions: Sentences. Due process of law
requires that vindictiveness against a defendant for having success-
fully attacked his first conviction must play no part in the sentence he
receives after a new trial.
13. Sentences: Presumptions: Appeal and Error. There is no presumption
of vindictiveness when a sentence is increased after a successful appeal
of the prior conviction if a different judge or jury handed down the sec-
ond, harsher sentence.
14. Sentences: Presumptions: Proof. When the presumption of vindictive-
ness is not applied, the burden remains with the defendant to prove
actual vindictiveness.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Annie O. Hayden for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Funke, J.
INTRODUCTION
In October 2010, the appellant, Juan E. Castaneda, was
convicted by a jury of two counts of first degree felony
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STATE v. CASTANEDA
Cite as 295 Neb. 547
murder, one count of attempted second degree murder, one
count of attempted robbery, one count of criminal conspiracy,
and three counts of use of a deadly weapon to commit a
felony. He was sentenced as follows: life imprisonment for
each first degree murder; 10 to 20 years’ imprisonment for
attempted second degree murder, to be served concurrently
with all; 10 to 15 years’ imprisonment for attempted rob-
bery, to be served concurrently with all but its respective
weapon conviction; 10 to 15 years’ imprisonment for criminal
conspiracy, to be served concurrently with all; and 10 to 15
years’ imprisonment for each weapon conviction, to be served
consecutively only with each respective first degree murder or
attempted robbery conviction.
On direct appeal, we affirmed Castaneda’s convictions,
vacated all his sentences, and remanded the cause for resen-
tencing.1 We vacated Castaneda’s life sentences under the
U.S. Supreme Court’s decision in Miller v. Alabama.2 We also
vacated his other sentences because the sentencing court com-
mitted plain error by ordering Castaneda’s weapon sentences
to run concurrently with other sentences, instead of consecu-
tively with all other sentences as required by law.3
Following a full evidentiary hearing and arguments,
Castaneda was resentenced in accordance with Nebraska stat-
utes. Castaneda appeals his resentencing. We affirm.
BACKGROUND
The events underlying Castaneda’s eight convictions and
sentences involve three shootings that occurred in three sepa-
rate locations in Omaha, Nebraska, within an hour. In our
opinion on Castaneda’s direct appeal, we set forth the facts of
the case in detail.4
1
See State v. Castaneda, 287 Neb. 289, 842 N.W.2d 740 (2014).
2
Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407
(2012).
3
See Neb. Rev. Stat. § 28-1205(3) (Reissue 2016).
4
See Castaneda, supra note 1.
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STATE v. CASTANEDA
Cite as 295 Neb. 547
The individuals responsible for the crimes were Edgar
Cervantes, Eric Ramirez, and Castaneda. The State entered into
a plea agreement with Cervantes to dismiss the murder charges
against him in exchange for his testimony.
According to Cervantes, in November 2008, he asked
Ramirez if he wanted “to go rob some people.” That same
evening, Castaneda accompanied Cervantes and Ramirez when
they left a party to give Jacob Shantz a ride home. While
Cervantes was driving to Shantz’ residence, he removed a gun
from under his seat and gave it to Ramirez.
After dropping Shantz off at his home, the three men drove
to 13th and Dorcas Streets in Omaha. While at that location,
Cervantes stayed in the vehicle and Ramirez and Castaneda
exited the vehicle. Ramirez and Castaneda approached two
males, later identified as Mark and Charles McCormick.
According to the McCormicks, the two men, one of them
armed, came up to them as they were leaving their cous-
in’s residence. The men demanded money but retreated
after Charles threatened them with a “piece of wood” or
“tree stump.”
Shortly thereafter, at about 10:45 p.m., all three men drove
to 16th and Dorcas Streets where they encountered Luis Silva
inside his vehicle outside of his home. Ramirez and Castaneda
approached Silva to rob him. Castaneda pulled Silva from his
vehicle, and Ramirez fatally shot him.
Then, at about 11 p.m., Cervantes, Ramirez, and Castaneda
drove to 50th Street and Underwood Avenue where they
observed a man, later identified as Charles Denton, walk
up to an automatic teller machine. When Denton saw two
men approaching, he returned to his vehicle and started to
drive away with his passenger. The two men, Ramirez and
Castaneda, ran toward Denton’s vehicle, and one reached the
driver’s side window and demanded money. The man also
fired his gun at the vehicle, striking Denton. Denton survived
his injuries.
The three men then drove south until they reached 52d and
Leavenworth Streets. At that location, they saw Tari Glinsmann
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leaving a gas station. Cervantes stopped the vehicle, and
Ramirez and Castaneda got out. According to Cervantes,
Castaneda pulled Glinsmann from her vehicle and Ramirez
fatally shot her. The statement about Glinsmann’s murder was
supported by video evidence and Castaneda’s handprint on the
hood of her car. While Cervantes said that Ramirez told him
Glinsmann had no money, she was found with cash, jewelry,
and the keys to the gas station, where she had worked and had
just finished her shift.
At the time of the shootings, Castaneda was 15 years 11
months old. As previously mentioned, Castaneda was con-
victed of two counts of first degree felony murder, one count
of attempted second degree murder, one count of attempted
robbery, one count of criminal conspiracy, and three counts
of use of a deadly weapon to commit a felony. Castaneda was
sentenced to life imprisonment for each first degree murder
and 10 to 20 years’ imprisonment for attempted murder, with
each sentence to run concurrently with the other. He was fur-
ther sentenced to 10 to 15 years’ imprisonment for attempted
robbery, to be served concurrently with all but its respective
weapon conviction; 10 to 15 years’ imprisonment for criminal
conspiracy, to be served concurrently with all; and 10 to 15
years’ imprisonment for each weapon conviction, to be served
consecutively only with each respective first degree murder or
attempted robbery conviction.
On direct appeal, we affirmed Castaneda’s convictions.5
While the appeal was pending, however, the U.S. Supreme
Court decided Miller.6 We rejected the State’s argument that
Miller should not apply to Castaneda’s life in prison sen-
tences, because Nebraska’s penalty statute did not contain
the qualifier “without parole.” We held that a sentence of
life in prison in Nebraska essentially contains no possibility
of parole, because parole is available only upon a sentence’s
5
See Castaneda, supra note 1.
6
See Miller, supra note 2.
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being commutated, which—as “‘an ad hoc exercise of execu-
tive clemency’”7—is a distinctly different concept than parole
as a matter of law. Accordingly, we vacated Castaneda’s life
sentences for first degree felony murder. We also vacated
his other sentences, because the sentencing court committed
plain error by ordering Castaneda’s use of a deadly weapon
to commit a felony sentences to run concurrently with his
other sentences, instead of consecutively with all other sen-
tences as required by § 28-1205(3). We remanded the cause
for resentencing.
Upon remand, the cause was assigned to a different district
judge, as the original judge had retired. Before resentencing,
a full evidentiary resentencing hearing was held. At that hear-
ing, Castaneda called three witnesses: Beverly Shields, a juve-
nile detention specialist at the Douglas County Youth Center
at the time Castaneda was housed there prior to trial; Dr. Kirk
Newring, a psychologist who interviewed Castaneda shortly
before resentencing; and Dr. Colleen Conoley, an adolescent
neuropsychologist who completed an evaluation on Castaneda
in 2014.
Shields testified that Castaneda was a model prisoner and
“was the best kid [she] ever worked with” during her employ-
ment at the youth center. Newring testified as to the prison
culture and the effects of segregation on a person. Conoley
testified about Castaneda’s current mental status, having been
diagnosed as schizophrenic; the maturation process of the ado-
lescent brain; and her belief that Castaneda is not a high risk to
reoffend “at this point of his development.”
Additionally, a presentence report was ordered for sentenc-
ing. The presentence report included, in part, the following
information: Conoley’s evaluation of Castaneda; the police
reports of the crimes; letters from the victims’ friends and
families; Castaneda’s age at the time of his crimes; Castaneda’s
prior criminal history of graffiti, theft by unlawful taking,
7
See Castaneda, supra note 1, 287 Neb. at 313, 842 N.W.2d at 758.
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shoplifting, and disorderly conduct; Castaneda’s overall grade
point average from seventh to ninth grades of 3.58, high
school diploma, and paralegal studies certificate; Castaneda’s
involvement in the “Must Be Criminal security threat group”;
Castaneda’s score as a high risk to reoffend on the “LS/CMI,”
a risk/needs assessment tool; a summary of Castaneda’s 56
misconduct reports from his incarceration: 45 reports between
February 4, 2011, and January 21, 2012, and 11 reports between
September 14, 2012, and March 24, 2015; and Castaneda’s
probation officer’s recommendation that Castaneda be incar-
cerated “for a very long time to come.”
At the resentencing hearing, the court heard arguments by
counsel for Castaneda and the State. The court pronounced
the following prison sentences: 40 to 50 years for each first
degree murder conviction, 10 to 10 years for attempted second
degree murder, 5 to 5 years for the attempted robbery, 5 to 5
years for criminal conspiracy, and 5 to 5 years for each weapon
conviction. The criminal conspiracy and attempted robbery
sentences were ordered to run concurrently with each other and
with the attempted murder sentence. All other sentences were
ordered to run consecutively to each other. The total combined
sentence was 105 to 125 years’ imprisonment. Castaneda was
given credit for 2,652 days served. Castaneda appeals.
ASSIGNMENTS OF ERROR
Castaneda assigns, restated, that the district court erred in
imposing (1) excessive sentences, (2) an aggregate de facto
life sentence prohibited under due process and the Eighth
Amendment, and (3) more severe sentences than Castaneda
originally received.
STANDARD OF REVIEW
[1,2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court.8 A judicial abuse of discretion exists when
8
State v. Mantich, ante p. 407, ___ N.W.2d ___ (2016).
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STATE v. CASTANEDA
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the ­reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying
just results in matters submitted for disposition.9
[3,4] Whether the district court’s resentencing of a defend­
ant following a successful appeal violates the defendant’s due
process rights presents a question of law.10 When reviewing
questions of law, an appellate court resolves the questions inde-
pendently of the conclusion reached by the lower court.11
ANALYSIS
Excessive Sentences
Castaneda argues that his aggregate sentence of 105 to
125 years’ imprisonment is excessive because the court
failed to adequately consider the required sentencing factors.
Specifically, he alleges that the court did not give adequate
consideration to his age. Castaneda also argues the sentencing
was tailored only to his crimes rather than to him as an individ-
ual, as required by State v. Harrison.12 Finally, he contends that
the court did not give sufficient consideration to the aggregate
length of the sentences; this argument is essentially the same as
Castaneda’s second assignment of error that the court imposed
an aggregrate de facto life sentence.
[5,6] There is no contention that Castaneda’s sentences
were outside the permissible statutory ranges. Accordingly,
the question is whether the court abused its discretion in
the sentences it imposed upon Castaneda. We have stated
that when imposing a sentence, a sentencing judge should
consider the following factors related to the defendant: (1)
age, (2) mentality, (3) education and experience, (4) social
and cultural background, (5) past criminal record or record
9
Id.
10
State v. Miller, 284 Neb. 498, 822 N.W.2d 360 (2012).
11
See State v. Rothenberger, 294 Neb. 810, 885 N.W.2d 23 (2016).
12
See State v. Harrison, 255 Neb. 990, 1005, 588 N.W.2d 556, 565 (1999)
(“a sentence should fit the offender and not merely the crime”).
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of law-abiding conduct, (6) motivation for the offense, (7)
nature of the offense, and (8) amount of violence involved in
the commission of the crime.13 Additionally, Neb. Rev. Stat.
§ 28-105.02(2) (Reissue 2016), which was amended by the
Legislature after Miller, includes the following nonexhaustive
list of mitigating factors that a sentencing court must also take
into consideration when sentencing a juvenile for first degree
murder, a Class IA felony:
(a) The convicted person’s age at the time of the
offense;
(b) The impetuosity of the convicted person;
(c) The convicted person’s family and community
environment;
(d) The convicted person’s ability to appreciate the
risks and consequences of the conduct;
(e) The convicted person’s intellectual capacity; and
(f) The outcome of a comprehensive mental health
evaluation of the convicted person conducted by an
adolescent mental health professional licensed in this
state. The evaluation shall include, but not be limited to,
interviews with the convicted person’s family in order
to learn about the convicted person’s prenatal history,
developmental history, medical history, substance abuse
treatment history, if any, social history, and psychologi-
cal history.14
[7,8] In considering a sentence, a court is not limited in
its discretion to any mathematically applied set of factors.15
The appropriateness 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 surrounding the defendant’s life.16
13
See State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016).
14
See Castaneda, supra note 1.
15
See State v. Raatz, 294 Neb. 852, 885 N.W.2d 38 (2016).
16
Id.
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We note in the present case that the sentencing judge, in
fact, considered each of these factors and discussed them at
the sentencing hearing. The sentencing judge acknowledged
that he was not the original trial or sentencing judge and,
instead, relied on the presentence report, evidentiary hearing,
and arguments of counsel in sentencing Castaneda. The court
stated that it considered two main factors: the nature of the
crimes committed and Castaneda’s age when he committed
the crimes.
The court specifically identified numerous mitigating fac-
tors that it considered—including the fact that Castaneda was
not the shooter, his minimal criminal history, his studiousness,
and his reasonable behavior as a prisoner. Most significantly,
the court gave great weight to Castaneda’s age at the time of
the offense, the impulsivity of the crimes, and the fact that as
a result of his age, he could not fully appreciate the conse-
quences of his actions.
Conversely, the court also gave significant weight to the
nature of the offenses Castaneda was convicted of and the
impact it had on the victims’ friends and families. The court
specifically discussed that because of Castaneda’s age, it
wanted to assume that he was naive to the violence that would
occur that night; however, the court could not make such
an assumption because of Castaneda’s continued participation
after being presented with opportunities to remove himself
from the crime spree as the violence escalated. Ultimately,
the court concluded that the several and disconnected crimes
warranted individual punishment by running his sentences con-
secutively. The court’s reasoning reflects sentences tailored to
both Castaneda and his crimes.
The sentencing range for Castaneda’s first degree murder
convictions, Class IA felonies, is 40 years to life in prison.17
17
§ 28-105.02(1). See Castaneda, supra note 1 (holding that sentencing
changes to penalty provisions for Class IA felonies committed by persons
under 18 years of age, enacted by 2013 Neb. Laws, L.B. 44, § 2, codified
as § 28-105.02, should apply to Castaneda’s resentencing).
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Castaneda’s convictions for attempted murder in the second
degree, criminal conspiracy, and use of a deadly weapon to
commit a felony are each Class II felonies subject to a sen-
tence of 1 to 50 years’ imprisonment,18 and attempted robbery
is a Class III felony that, when committed, was subject to a
sentence of 1 to 20 years’ imprisonment, a $25,000 fine, or
both.19 Castaneda was resentenced as set forth above. Each of
his sentences were on the low end of their respective statutory
sentencing ranges. Further, the attempted robbery and criminal
conspiracy sentences were made concurrent with the attempted
second degree murder sentence.
[9] The court gave sufficient consideration to each of the
relevant factors, determining that leniency was warranted in
Castaneda’s sentences, evidenced by each being on the low
end of the potential range. But, the court determined that both
murders and the attempted murder were each distinct and sepa-
rate incidents, offering Castaneda the choice to participate or
flee at each scene. Under our prior holdings, it is within a trial
court’s discretion to direct that sentences imposed for sepa-
rate crimes be served either concurrently or consecut­ively.20
Therefore, Castaneda’s separate decision to commit each crime
warranted a distinct punishment for each. In light of these
facts, we cannot conclude that the district court abused its dis-
cretion in sentencing Castaneda.
De Facto Life Sentence
In Castaneda’s second assignment of error, he argues that the
aggregate of his sentences constitutes a de facto life sentence.
Further, he contends that this aggregate sentence does not pro-
vide a “meaningful opportunity for release,” under Miller,21
18
See Neb. Rev. Stat. § 28-105 (Supp. 2015).
19
See § 28-105 (Reissue 2008).
20
State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
21
Miller, supra note 2.
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and that the court failed to make a finding he was “[i]rrepara-
bly [c]orrupt.”22
In Miller, the U.S. Supreme Court held that a mandatory
life sentence without parole for those under the age of 18 at
the time of their crimes violated the Eighth Amendment’s pro-
hibition on cruel and unusual punishment.23 Miller went on to
hold that although a sentencer could still institute a sentence of
life imprisonment in homicide cases, the sentencing court was
required to take into account how children are different, and
how those differences counsel against irrevocably sentencing
them to a lifetime in prison.24
In State v. Mantich,25 the defendant, Douglas M. Mantich, a
juvenile at the time of his crimes, was convicted of first degree
felony murder and use of a firearm to commit a felony. When
Mantich was sentenced, Nebraska’s statutes provided that a
juvenile convicted of first degree murder was subject to man-
datory life imprisonment. Accordingly, Mantich was initially
sentenced to life imprisonment for the first degree murder
conviction and 5 to 20 years’ imprisonment for the firearm
conviction, to be served consecutively.26 Mantich appealed,
and we affirmed Mantich’s convictions and life imprison-
ment sentence and vacated and remanded his firearm sentence
for resentencing.27
At the same time we decided Castaneda’s direct appeal,28
we also considered Mantich’s appeal of his motion for post-
conviction relief.29 In Castaneda’s direct appeal, we held that
22
Brief for appellant at 26, 28.
23
Miller, supra note 2.
24
Id.
25
State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996).
26
Id.
27
Id.
28
See Castaneda, supra note 1.
29
State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 (2014), cert. denied ___
U.S. ___, 135 S. Ct. 67, 190 L. Ed. 2d 229.
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“Nebraska’s sentence of life imprisonment is effectively life
imprisonment without parole under the rationale of Miller
. . . because it provides no meaningful opportunity to obtain
release.”30 Accordingly, we vacated Mantich’s life sentence and
remanded the cause for resentencing.31 After a full evidentiary
hearing, Mantich was resentenced to 90 to 90 years’ imprison-
ment for his first degree murder conviction. Mantich appealed.
[10,11] In Mantich’s most recent appeal,32 we addressed
the issue of Miller and its application, and we determined that
felony murder is a homicide offense. We also explained that
in Graham v. Florida,33 the U.S. Supreme Court held that “life
imprisonment without the possibility of parole for juveniles
convicted of nonhomicide offenses was unconstitutional.”34
We noted the Court further held that “such juvenile offend-
ers must be given ‘some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.’”35
However, we reasoned that in Miller, “the Court declined to
extend the categorical bar of no life sentences without parole
to juveniles convicted of homicide.”36 Instead, Miller’s require-
ment that a juvenile have a meaningful opportunity for release
required that “‘a sentencer must consider specific, individual-
ized factors before handing down a sentence of life impris-
onment without parole for a juvenile.’”37 Accordingly, we
rejected Mantich’s de facto life sentence argument, “[b]ecause
under Miller a juvenile defendant may be sentenced to life
30
Castaneda, supra note 1, 287 Neb. at 313-14, 842 N.W.2d at 758. See,
also, Mantich, supra note 8.
31
Mantich, supra note 29.
32
Mantich, supra note 8.
33
Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010).
34
Mantich, supra note 8, ante at 413, ___ N.W.2d at ___.
35
Id., quoting Graham, supra note 33.
36
Id.
37
Id., quoting Mantich, supra note 29.
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imprisonment without parole, [therefore,] it is immaterial
whether the sentence imposed upon Mantich was a de facto
life sentence.”38
Here, the court held a full evidentiary hearing concerning
Castaneda’s resentencing. Before issuing the sentences, the
court discussed the individualized factors it was required to
consider and how they impacted its decision. Even assuming,
without deciding, that a court was required to find a juvenile
“irreparably corrupt” before issuing him or her a life imprison-
ment without parole sentence, the court here gave Castaneda
no such sentence; instead, it sentenced Castaneda on the low
end of the statutory range for each of his eight convictions.
Accordingly, Castaneda received the protections required by
Miller for a juvenile convicted of a homicide offense.
Vindictive Sentences
In his third assignment of error, Castaneda argues that
his new sentences are more severe than his original sen-
tences. While he concedes that the length of his sentences has
decreased, he contends that changing his murder and attempted
murder sentences from concurrent39 to consecutive made them
inherently more severe. Accordingly, he argues that his resen-
tencing was presumptively vindictive under North Carolina
v. Pearce.40
The State argues that Castaneda’s aggregate sentence is not
more severe upon resentencing, because he is now eligible for
parole after 521⁄2 years, when he was originally sentenced to
life in prison without parole. Further, it contends Castaneda
38
Id. at 415-16, ___ N.W.2d at ___.
39
See State v. Berney, 288 Neb. 377, 383, 847 N.W.2d 732, 737 (2014)
(stating that “[u]nless prohibited by statute or unless the sentencing court
states otherwise when it pronounces the sentences, multiple sentences
imposed at the same time run concurrently with each other”).
40
North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656
(1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109
S. Ct. 2201, 104 L. Ed. 2d 865 (1989).
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is not entitled to a presumption of vindictiveness, because the
resentencing judge was not the same judge that sentenced him
originally. Lastly, the State contends that because Castaneda
had the burden to prove actual vindictiveness and failed to
argue actual vindictiveness, his assignment of error is with-
out merit.
[12] We discussed vindictive resentencing most recently in
State v. Miller.41 We explained:
“Due process of law . . . requires that vindictiveness
against a defendant for having successfully attacked his
first conviction must play no part in the sentence he
receives after a new trial. And since the fear of such
vindictiveness may unconstitutionally deter a defendant’s
exercise of the right to appeal or collaterally attack his
first conviction, due process also requires that a defendant
be freed of apprehension of such a retaliatory motivation
on the part of the sentencing judge.”42
Accordingly, we recognized that to relieve a defendant of the
apprehension of vindictiveness, Pearce required that courts
apply a presumption of vindictiveness whenever a sentence is
increased after a successful appeal of the prior conviction.
[13,14] However, we also recognized that the U.S. Supreme
Court has limited this presumption since Pearce to “cases
which pose a reasonable likelihood that the increased sentence
is the product of actual vindictiveness.”43 Accordingly, we
stated: “[The] Court has limited the presumption of vindic-
tiveness to cases that involve the same judge or jury handing
down both the initial sentence and the second, harsher sen-
tence. . . . [Alternatively, w]hen the presumption of vindictive-
ness is not applied, the burden remains with the defendant to
prove actual vindictiveness.”44
41
Miller, supra note 10.
42
Id. at 501, 822 N.W.2d 364, quoting Pearce, supra note 40.
43
Id. at 502, 822 N.W.2d 364, citing Smith, supra note 40.
44
Id. at 502, 504, 822 N.W.2d 364, 366, citing Smith, supra note 40.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. CASTANEDA
Cite as 295 Neb. 547
Here, Castaneda was sentenced by two different judges.
Therefore, we agree with the State that Castaneda is not enti-
tled to a presumption of vindictiveness.
Further, Castaneda made no argument of actual vindictive-
ness, and our review of the record does not reveal any imper-
missible considerations or vindictiveness by the court. Instead,
the court weighed the required factors under the relevant case
law and § 28-105.02. The court also took into consideration
the fact that Castaneda was not the shooter and that he had
decreased cognitive ability due to his age and immaturity.
However, the court could not overlook the fact that Castaneda
was involved in three distinct incidents of gun violence that
resulted in the deaths of two people and the wounding of a
third. Ultimately, the court believed that Castaneda’s youth
entitled him to sentences on the low end of the statutory range,
but that his actions required he serve the sentences consecu-
tively. Consequently, we conclude Castaneda’s assignment of
error is without merit.
CONCLUSION
The sentences of the district court are affirmed.
A ffirmed.