State v. Russell , 299 Neb. 483 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/26/2018 09:10 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. RUSSELL
Cite as 299 Neb. 483
State of Nebraska, appellee, v.
Patrick R. Russell, appellant.
___ N.W.2d ___
Filed March 30, 2018. No. S-17-197.
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: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable
legal principles in determining the sentence to be imposed.
4. 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.
5. ____. Where a defendant was under the age of 18 when he or she com-
mitted a Class IA felony, Neb. Rev. Stat. § 28-105.02 (Reissue 2016)
dictates that the sentencing judge must also consider mitigating factors,
such as the defendant’s (1) age at the time of the offense, (2) impetuos-
ity, (3) family and community environment, and (4) ability to appreciate
risks and consequences of the conduct, as well as (5) the outcome of a
comprehensive mental health evaluation of the defendant conducted by
an adolescent mental health professional licensed in Nebraska.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
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STATE v. RUSSELL
Cite as 299 Neb. 483
Thomas C. Riley, Douglas County Public Defender, and
Annie O. Hayden for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and Pirtle and Bishop, Judges.
Cassel, J.
INTRODUCTION
In 1974, a court sentenced Patrick R. Russell to life impris-
onment for a murder he committed at age 17. Following deci-
sions in Miller v. Alabama1 and State v. Mantich,2 Russell
sought postconviction relief in the form of a new sentencing
hearing. The court granted relief and resentenced Russell to
110 to 126 years’ imprisonment, making him eligible for
parole at age 72. Because the sentence does not constitute an
abuse of discretion, we affirm.
BACKGROUND
Crime and Direct A ppeal
The facts and circumstances surrounding Russell’s crime
are set out in greater detail in our decision resolving his direct
appeal.3 On November 10, 1973, when Russell was 17 years
old, he engaged in sexual activities with 8-year-old Joseph
Edmonds. After Edmonds allegedly called Russell’s grand-
mother derogatory names, Russell used a pocketknife to cut a
length of telephone cord. He told Edmonds to close his eyes,
slipped the cord around Edmonds’ neck, and pulled it tight.
Edmonds died due to the strangulation.
1
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407
(2012).
2
State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 (2014).
3
State v. Russell, 194 Neb. 64, 230 N.W.2d 196 (1975).
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STATE v. RUSSELL
Cite as 299 Neb. 483
Our prior opinion also discussed Russell’s mental condi-
tion. At age 14, he was hospitalized for psychiatric treatment
for approximately 1 month. Russell then resided at the Omaha
Home for Boys for approximately 2 years. He returned to live
with his mother in July 1973, and he was soon charged with
three counts of assault and battery related to sexual attacks on
young boys ranging from 4 to 8 years of age.
The district court convicted Russell of murder in the first
degree and imposed a sentence of life imprisonment. We
affirmed the court’s judgment.4
Postconviction and R esentencing
Following decisions in Miller 5 and Mantich,6 Russell sought
postconviction relief. He asked the district court to vacate and
set aside his sentence and to hold a new sentencing hearing.
The district court granted the requested relief.
The district court received evidence at a mitigation hearing.
It received the deposition of an adolescent neuropsychologist
who discussed newer revelations in science concerning the
development of the adolescent brain. It also received docu-
ments regarding Russell’s misconduct reports, achievements
while incarcerated, and reclassification forms used by the peni-
tentiary to determine placement.
The district court heard live testimony from a witness.
Kirk A.B. Newring, Ph.D., a psychologist, testified that stud-
ies show the brains of adolescents are not fully formed. He
explained that the prefrontal cortex—which allows for delib-
eration, anticipation of future outcomes, assessment of risk,
and impact—seems to be more fully developed around age
25. The lack of prefrontal cortex development is most demon-
stratively impaired in “hot logic situations where there’s emo-
tional arousal.” Newring testified that Russell reported a strong
4
Id.
5
Miller v. Alabama, supra note 1.
6
State v. Mantich, supra note 2.
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attachment to his grandmother as the only relative who had
a parenting-type relationship toward him. Newring gathered
from his talks with Russell that Russell admitted to the crime
to appease the parole board but was now saying that he did
not do it. Russell explained that his attorney performed inad-
equately and that Russell was innocent.
Newring testified that with regard to classification, since
2011, Russell had scores that would allow him to be at a com-
munity corrections center if he were not serving a life sentence.
In other words, Russell “has the institutional behavior and his-
tory that would allow him to be placed at work release,” but
instead, Russell is kept in total confinement due to the nature
of his sentence. The presentence report (PSR) shows that dur-
ing many annual custody reviews from at least 1989 to 2000,
no change was recommended in Russell’s classification due
to his refusal to take part in a psychological evaluation. He
submitted to a psychological evaluation in 2002. That evalu-
ation recommended that Russell complete all three levels of
both “GOLF” (for mental health) and “SATOP” (for substance
abuse) programming prior to being considered for a cus-
tody promotion. In 2002 through 2005, his classification was
not changed, because the mental health recommendation was
not favorable.
Newring assessed Russell at a low risk for future acts of
violence. The risk factors were that Russell had a convic-
tion of violence and a personality disorder. Newring assigned
Russell a diagnosis of “Other Personality Disorder with Mixed
Schizoid and Schizotypal Personality features” to “encapsulate
that he’s a little bit asocial” and that “his presentation and
perceptions are a little bit odd or eccentric.” Newring testi-
fied that Russell described a feasible and achievable release
plan and recognized that he would need to work through the
transition process of the Department of Correctional Services.
Newring did not believe that Russell had any meaningful fam-
ily support in the community. Newring explained that Russell
was employable, did not have a major mental illness, had a
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STATE v. RUSSELL
Cite as 299 Neb. 483
good work history, handled stress fairly well within the insti-
tution, and was cognizant of a need for supportive transition,
all of which suggested a low risk for future acts of violence.
Russell obtained a low score on a test that is a predictor of
future violence.
The record showed steps taken by Russell to improve him-
self while incarcerated. In 1981, Russell obtained a diploma
through the GED program and earned credentials of minis-
try in the “Church of the God Within.” The next year, the
church awarded him an honorary doctor of divinity. The record
shows that Russell completed other Bible studies. In 1988, he
obtained a certificate in welding. Performance reviews show
that Russell had an “exceptional” work history in prison.
Between 1991 and 2016, Russell had 26 misconduct reports,
with the most recent occurring in 2010.
According to the PSR, “Russell remains in a Pre-
Contemplative Stage of Change with regard to addressing
his criminogenic needs.” Testing tools found Russell to be
at a very high risk to reoffend. The report stated that Russell
appeared to be unwilling to accept he has mental health prob-
lems and that his personality disorder would likely impact
efforts to address his criminogenic needs.
Although Russell does not see himself as having a mental
illness, his history suggests otherwise. On two occasions in
1969, Russell was hospitalized at a psychiatric center after
exhibiting violence toward family members. Russell was hos-
pitalized in 1970 with an admission diagnosis of adolescent
schizophrenia. After an evaluation, a doctor felt that Russell
“represented borderline retardation and adolescent adjust-
ment reaction.” Russell acknowledged that as a juvenile, he
was seen by a psychiatrist, and that he was diagnosed with
schizophrenia in 1972. In a Nebraska Penal and Correctional
Complex progress report from March 1975, the author strongly
recommended that Russell be placed in a mental institution. In
a report the following year, the counselor stated that Russell
should be under psychiatric care.
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STATE v. RUSSELL
Cite as 299 Neb. 483
Upon admission to a psychiatric hospital in 1978, Russell
indicated that he had no mental disorders. However, staff per-
ceived him as “having a severe mental disorder, and the main
feature of which is paranoia.” An admission note and mental
status examination report from that year stated that Russell, as
an adolescent, carried a knife or a section of pipe on his per-
son “for his own protection or in case someone bumped into
him or in case he didn’t like someone’s face.” Russell reported
that he had “attacked people from behind and struck them
with the pipe because he didn’t like their looks or because
they had accident[al]ly bumped into him on the street.” In this
report, Russell offered strong racial opinions and indicated
that he could get along with African Americans, “provided
that they do not talk to him or look at him the wrong way.”
The report showed a diagnostic impression of “Schizophrenia,
Paranoid Type.”
The PSR shed light on crimes committed by Russell prior
to the murder. In December 1972, a 7-year-old boy reported
that Russell inserted a pencil in the victim’s rectum, made the
victim perform oral sex on Russell, and pulled on the victim’s
penis and testicles. When interviewed by the police, Russell
stated that among other actions against the victim, he “tied
a cord around [the victim’s] neck, and threatened to hang
him over the side of the porch railing from the third floor for
messing with the TV.” Russell told the officer that the victim
harassed him, which made Russell angry, and that Russell
was unable to control his temper. When an officer spoke with
Russell’s mother, she informed him that Russell had been stay-
ing at the Omaha Home for Boys because he was “hard to han-
dle,” but that he was home on holiday leave. She also said that
prior to his admittance to the Omaha Home for Boys, Russell
was receiving care from a doctor for “a [m]ental problem.”
Russell told an officer that if he had been “taking medicine for
his condition,” he “possibly would not have done what he did”
to the victim. In November 1973, Russell was charged with
stealing a vehicle.
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STATE v. RUSSELL
Cite as 299 Neb. 483
The PSR stated that Russell appeared to have a deep-seated
need for power and control and that interpersonal relationships
were problematic for Russell. It further stated that Russell’s
level of suspicion toward authority figures “does not bode well
for his prospects of succeeding in community-based supervi-
sion.” Russell showed “very little motivation to participate
actively and meaningfully in a correctional plan.” According
to the report, Russell “appears to be dreaming of living under
a bridge in a warm climate.”
In February 2017, the court resentenced Russell. The court
stated that it had spent days “going through everything” in
preparation for the sentencing. The court recounted that it had
reviewed the entirety of the PSR and opinions from this court
as well as Miller.7 The court further stated that it considered
Russell’s age, mentality, education and experience, social and
cultural background, past record of criminal or law-abiding
conduct, motivation for the offense, nature of the offense, and
amount of violence involved in the commission of the crime.
In addition, the court weighed mitigating factors under Neb.
Rev. Stat. § 28-105.02(2) (Reissue 2016). The court reviewed
this court’s opinion in Russell’s direct appeal8 and considered
the evidence at the mitigation hearing.
The district court disagreed with Newring that Russell
was impulsive. The court observed that on the same page of
Newring’s report that Newring said Russell was impulsive,
Newring wrote that Russell was now contending he did not
commit the murder. The court noted that on a number of occa-
sions in the PSR, it was reported that Russell denied and mini-
mized responsibility for his actions and felt he had the right
to defend his grandmother’s name. The court recalled reading
that Russell had also blamed his attorney for not properly rep-
resenting him.
7
Miller v. Alabama, supra note 1.
8
State v. Russell, supra note 3.
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STATE v. RUSSELL
Cite as 299 Neb. 483
The district court recognized the importance of consider-
ing mitigating factors before sentencing a juvenile offender.
It stated:
[T]he State doesn’t challenge the vast body of neurosci-
entific and developmental science in adolescents that have
implications for the treatment of juveniles in the justice
system, and ultimately led to Miller [v.] Alabama. Before
Miller [v.] Alabama, in 2012, a murder conviction meant
a life sentence, regardless of the age of the actor. Since
Miller, if the actor was under 18, the Court must con-
sider mitigating factors before imposing a life sentence
for murder.
. . . We are here today because of a change in the law
that applies to cases like this across the country. Miller
[v.] Alabama requires the courts to — across the country
at the state level to consider mitigating factors before
sentencing a person who was under 18 at the time of
the murder.
And I’ve mentioned the change in the law that
our legislature made because of Miller [v.] Alabama,
[§] 28-105.02, and all of the nonexhaustive list of mitigat-
ing factors, which the Court considered.
In attempting to fashion a fair and appropriate sentence
— resentence, excuse me, based on the law and the evi-
dence, the Court does so within the context of the facts of
this case. All sentences are driven in part by the particu-
lar facts unique to them, and I mentioned this earlier. So
it’s this case, these facts, that the Court considers.
The legislature has set the minimum sentence in these
kinds of cases at 40 years. And it has set the maximum
sentence at life. And where this case falls in that spectrum
is ultimately left to the Court to determine.
The district court recognized that it must “also consider a
sentence that will not depreciate the seriousness of the crime
and serve to protect society.” The court resentenced Russell to
110 to 126 years in prison, with credit for 15,789 days served.
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STATE v. RUSSELL
Cite as 299 Neb. 483
Thus, the court stated that Russell would be eligible for parole
after serving 55 years and, if he did not lose any good time,
would be discharged after serving 63 years.
Russell timely appeals.
ASSIGNMENT OF ERROR
Russell assigns that the district court abused its discretion by
imposing an excessive sentence.
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.9 A judicial abuse of discretion exists when the rea-
sons 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.10
ANALYSIS
We have recently decided a number of appeals involving
juvenile offenders convicted of first degree murder who were
sentenced to life imprisonment, who were subsequently resen-
tenced in response to Miller, and who then appealed that sen-
tence.11 This is another such appeal. Our prior cases set forth
the legal background leading to the resentencing of juvenile
offenders, and we do not repeat it here.
Russell argues that his sentence of 110 to 126 years’ impris-
onment is excessive. He does not suggest that the court imposed
9
State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017), cert. denied ___
U.S. ___, 138 S. Ct. 656, 199 L. Ed. 2d 549 (2018).
10
Id.
11
See, State v. Jones, supra note 9; State v. Jackson, 297 Neb. 22, 899
N.W.2d 215 (2017); State v. Nollen, 296 Neb. 94, 892 N.W.2d 81 (2017),
cert. denied ___ U.S. ___, 138 S. Ct. 165, 199 L. Ed. 2d 98; State v.
Garza, 295 Neb. 434, 888 N.W.2d 526 (2016), cert. denied ___ U.S. ___,
138 S. Ct. 83, 199 L. Ed. 2d 54 (2017); State v. Mantich, 295 Neb. 407,
888 N.W.2d 376 (2016), cert. denied ___ U.S. ___, 138 S. Ct. 128, 199 L.
Ed. 2d 78 (2017).
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a sentence outside the statutory limits; instead, he contends
that the court abused its discretion in imposing the sentence.
We disagree.
[3-5] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion
in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence
to be imposed.12 Relevant factors 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) 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.13 Because Russell was under the age of 18 when
he committed a Class IA felony, § 28-105.02 dictates that the
sentencing judge must also consider mitigating factors, such as
the defendant’s (1) age at the time of the offense, (2) impetuos-
ity, (3) family and community environment, and (4) ability to
appreciate risks and consequences of the conduct, as well as
(5) the outcome of a comprehensive mental health evaluation
of the defendant conducted by an adolescent mental health pro-
fessional licensed in Nebraska.14
Russell asserts that his sentence should be modified because
it was tailored to fit the crime rather than the offender. He
emphasizes decisions from the U.S. Supreme Court recogniz-
ing the reduced culpability of juveniles and developments in
the field of neuropsychology.15 We, like the district court, are
12
State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017), cert. denied ___ U.S.
___, 138 S. Ct. 315, 199 L. Ed. 2d 208.
13
Id.
14
See id.
15
See, Miller v. Alabama, supra note 1; Graham v. Florida, 560 U.S. 48, 130
S. Ct. 2011, 176 L. Ed. 2d 825 (2010); Roper v. Simmons, 543 U.S. 551,
125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
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mindful of evidence showing that the brain of an adolescent is
not fully developed. But that does not necessarily mean that an
offender no longer poses a risk after age 25.
Under Miller, a juvenile offender convicted of a homicide
offense may be sentenced to life imprisonment without parole
so long as the sentencer considered specific, individualized
factors before handing down that sentence.16 Rather than life
imprisonment, the court sentenced Russell to a term of years
that allows for parole eligibility. And it is clear from the court’s
statements during the resentencing hearing that it considered
the relevant sentencing factors set forth above.
Russell also argues that the sentence imposed was a de facto
life sentence. He will be eligible for parole at age 72, and he
will be 80 years old on his projected release date. Russell high-
lights cases from other states where courts have found shorter
terms of imprisonment to be de facto life sentences.17 But we
have declined to follow that line of cases.
In State v. Smith,18 we considered a claim that a lengthy
term-of-years sentence was a de facto life imprisonment.
In doing so, we discussed in some detail the U.S. Supreme
Court’s decision in Graham v. Florida.19 The Graham Court
found it unconstitutional to sentence a nonhomicide juvenile
offender to a “sentence [that] guarantees he [or she] will
die in prison without any meaningful opportunity to obtain
release.”20 But we noted that the Court had not decided
whether a lengthy term-of-years sentence was, for constitu-
tional purposes, the same as a sentence of life imprisonment
16
State v. Nollen, supra note 11.
17
See, Casiano v. Commissioner of Correction, 317 Conn. 52, 115 A.3d
1031 (2015), cert. denied ___ U.S. ___, 136 S. Ct. 1364, 194 L. Ed. 2d
376 (2016) (50-year sentence); State v. Ronquillo, 190 Wash. App. 765,
361 P.3d 779 (2015) (mandatory release at age 68).
18
State v. Smith, supra note 12.
19
Graham v. Florida, supra note 15.
20
Id., 560 U.S. at 79.
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without the possibility of parole. We observed that “a number
of courts have held that sentences that allow the juvenile
offender to be released in his or her late sixties or early seven-
ties satisfy the ‘meaningful opportunity’ requirement.”21 We
also recognized that “other courts have interpreted Graham
to mean that the juvenile offender must be released a certain
number of years before his life expectancy.”22 Ultimately, we
concluded in Smith that a sentence for kidnapping in which
the juvenile offender would be eligible for parole at age 62
comported with the principles set forth in Graham.
Although this case involves a homicide, our analysis in
Smith provides guidance. The Miller Court highlighted that the
reasoning from Graham still applied to homicide offenses:
Graham’s flat ban on life without parole applied only to
nonhomicide crimes, [but] none of what it said about chil-
dren—about their distinctive (and transitory) mental traits
and environmental vulnerabilities—is crime-­ specific. .
. . So, Graham’s reasoning implicates any life-without-
parole sentence imposed on a juvenile, even as its cat-
egorical bar relates only to nonhomicide offenses.23
And, in a homicide case,24 we adhered to our conclusions
in Smith. There, we found no merit to the juvenile offend-
er’s contention that his parole eligibility at age 56 was
unconstitutional.
We digress at this point to recognize the reversal of State
v. Zuber,25 a New Jersey case that we have discussed26 and
cited27 approvingly. In that case, the sentences imposed on a
21
State v. Smith, supra note 12, 295 Neb. at 977, 892 N.W.2d at 65.
22
Id. (emphasis in original).
23
Miller v. Alabama, supra note 1, 567 U.S. at 473.
24
See State v. Jones, supra note 9.
25
State v. Zuber, 442 N.J. Super. 611, 126 A.3d 335 (2015), reversed 227
N.J. 422, 152 A.3d 197 (2017).
26
See State v. Cardeilhac, 293 Neb. 200, 876 N.W.2d 876 (2016).
27
See State v. Smith, supra note 12.
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juvenile offender for nonhomicide crimes totaled 110 years
but the offender would be eligible for parole in 55 years at
approximately age 72. The Superior Court of New Jersey
assumed, but did not decide, that Graham could apply. As
part of its analysis, it used life expectancy tables, which pre-
dicted that the offender would outlive his parole ineligibil-
ity period. The court concluded that the aggregate sentence
was not a de facto life sentence, because the offender had
a meaningful and realistic opportunity to obtain release. We
thus included this case as one in which a court found that a
lengthy term of years was not the equivalent of a life sen-
tence.28 Slightly over 1 year ago, the New Jersey Supreme
Court reversed, and remanded for resentencing.29 It found that
lengthy term-of-years sentences imposed on juveniles impli-
cated the principles of Graham and Miller. It directed that at
the new sentencing hearing, the trial court should consider the
offender’s “‘immaturity, impetuosity, and failure to appreci-
ate risks and consequences’; ‘family and home environment’;
family and peer pressures; ‘inability to deal with police offi-
cers or prosecutors’ or his own attorney; and ‘the possibility
of rehabilitation.’”30
The theme emerging from all the jurisprudence discussed
above is that a sentencing court must consider a juvenile
offender’s “youth and attendant characteristics”31 in fashion-
ing a punishment. The district court has done that here. And
we are mindful that the U.S. Supreme Court has not precluded
a court from imposing a sentence of life imprisonment with-
out possibility of parole for a juvenile convicted of homicide.
The Miller Court stated: “Although we do not foreclose a
sentencer’s ability to make that judgment in homicide cases,
we require it to take into account how children are different,
28
See, id.; State v. Cardeilhac, supra note 26.
29
State v. Zuber, 227 N.J. 422, 152 A.3d 197 (2017).
30
Id. at 453, 152 A.3d at 215.
31
Miller v. Alabama, supra note 1, 567 U.S. at 483.
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and how those differences counsel against irrevocably sentenc-
ing them to a lifetime in prison.”32 While Russell will not be
eligible for parole until age 72, the sentence imposed affords a
“meaningful and realistic opportunity to obtain release”33 from
prison. We cannot say that the court abused its discretion in
resentencing Russell.
CONCLUSION
The record shows that the district court considered prin-
ciples from Miller and the relevant sentencing factors. Because
the district court did not abuse its discretion in resentencing
Russell to 110 to 126 years in prison, we affirm.
A ffirmed.
Wright and K elch, JJ., not participating.
32
Id., 567 U.S. at 480.
33
State v. Smith, supra note 12, 295 Neb. at 979, 892 N.W.2d at 66.