State v. Clemens , 300 Neb. 601 ( 2018 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. CLEMENS
Cite as 300 Neb. 601
State of Nebraska, appellee, v.
Nathan W. Clemens, appellant.
___ N.W.2d ___
Filed July 27, 2018. No. S-17-872.
1. Pleas: Appeal and Error. A trial court is given discretion as to whether
to accept a guilty plea, and an appellate court will overturn that decision
only where there is an abuse of discretion.
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. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, which an appellate court reviews independently.
4. Pleas. To support a plea of guilty or no contest, the record must establish
that (1) there is a factual basis for the plea and (2) the defendant knew
the range of penalties for the crime with which he or she is charged.
5. Pleas: Effectiveness of Counsel. When a court accepts a defendant’s
plea of guilty or no contest, the defendant is limited to challenging
whether the plea was understandingly and voluntarily made and whether
it was the result of ineffective assistance of counsel.
6. Pleas. A sufficient factual basis is a requirement for finding that a plea
was entered into understandingly and voluntarily.
7. Statutes. Statutory language is to be given its plain and ordinary
meaning.
8. Statutes: Legislature: Intent: Appeal and Error. An appellate court
will not look beyond a statute to determine the legislative intent when
the words are plain, direct, or unambiguous.
9. Statutes: Intent: Appeal and Error. When interpreting a statute,
effect must be given, if possible, to all the several parts of a statute; no
sentence, clause, or word should be rejected as meaningless or super-
fluous if it can be avoided. An appellate court must look to the stat-
ute’s purpose and give to the statute a reasonable construction which
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best achieves that purpose, rather than a construction which would
defeat it.
10. Convicted Sex Offender: Jurisdiction: States. Under Neb. Rev. Stat.
§ 29-4003(1)(a)(iv) (Reissue 2016), whether one is “required to regis-
ter as a sex offender” in another jurisdiction is determined under the
laws of the other jurisdiction rather than under Nebraska law. Section
29-4003(1)(a)(iv) adds no additional requirement that registration in the
other jurisdiction must be based on a “conviction” or an offense that
would have required the person to register in Nebraska if the offense had
been committed in Nebraska.
11. ____: ____: ____. A sex offender registrant’s actual registration
under another jurisdiction’s law is conclusive evidence that the reg-
istrant was required to register within the meaning of Neb. Rev. Stat.
§ 29-4003(1)(a)(iv) (Reissue 2016).
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, Todd
Molvar, and Sarah L. Burghaus, Senior Certified Law Student,
for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and H all, District Judge.
Miller-Lerman, J.
NATURE OF CASE
Nathan W. Clemens appeals his plea-based conviction and
sentence in the district court for Lancaster County for attempted
violation of Nebraska’s Sex Offender Registration Act (SORA).
He claims that the district court committed plain error when it
accepted the factual basis for the plea and sentenced him. We
affirm Clemens’ conviction and sentence.
STATEMENT OF FACTS
In August 2016, Clemens was taken into custody by a
Lancaster County sheriff’s deputy following a disturbance
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in a bar. As a result of conducting a background check on
Clemens, the deputy determined that Clemens was registered
as a sex offender in Colorado; that he was still required to
be registered in Colorado; and that he had last registered in
Colorado on January 14, 2016, with an Aurora, Colorado,
address. Further investigation indicated that Clemens had been
living and working in Nebraska since June 2016, but that he
had never registered as a sex offender in Nebraska. The State
charged Clemens with a violation of SORA under Neb. Rev.
Stat. § 29-4011(1) (Reissue 2016) based on his failure to regis-
ter within 3 working days after entering Nebraska, as required
by Neb. Rev. Stat. §§ 29-4003(1)(a)(iv) and 29-4004(1)
(Reissue 2016).
As part of a plea agreement, the State amended the charge
to attempted violation of SORA, and on June 5, 2017, Clemens
pled guilty to the amended charge. At the plea hearing, the
State set forth a factual basis which included, inter alia, the
following: that Clemens “was a registered sex offender in
Colorado”; that “on February 18th of 1999, [he] was found
to have committed the offense of sexual assault of a child”
in Colorado; that “[a]s a result of his conviction, [he] was
required to register as a sex offender” in Colorado; that a
law enforcement officer in Colorado confirmed that Clemens
“was still required to registered as a sex offender, and his last
registration in Colorado was on January 14th, 2016, when he
listed his address at that time as being in Aurora, Colorado”;
that Clemens had posted on social media in June 2016 that he
was leaving Colorado and “was going to Nebraska for a new
start”; that his employer provided timecards showing that he
“had been working in Nebraska since June 20th of 2016”; that
Clemens had “acknowledge[d] that he knew he was required to
register as a sex offender, but said he did not know the rules
in Nebraska”; and that a “review of the Nebraska State Patrol
Registry and the records of the Lancaster County Sheriff’s
Office show that . . . Clemens had never registered as a sex
offender in Nebraska or in Lancaster County.” After the State
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finished giving its factual basis, the court asked Clemens, “Sir,
did you commit this offense?” and Clemens replied, “Yes, sir.”
After further colloquy, the court accepted Clemens’ plea and
found him guilty of attempted violation of SORA.
On July 28, 2017, the court sentenced Clemens to imprison-
ment for 270 days and to postrelease supervision for 9 months.
On August 15, Clemens filed a notice of appeal. At an appeal
bond hearing held on August 16, the district court received into
evidence two exhibits offered by Clemens: an August 4, 2017,
letter from the Nebraska State Patrol stating that Clemens did
not need to register under SORA and a copy of the decision of
the U.S. Court of Appeals for the Eighth Circuit in A.W. by and
through Doe v. State, 865 F.3d 1014 (8th Cir. 2017). Clemens
stated that he was offering the exhibits “just for the purpose of
setting the appeal bond.”
In the August 4, 2017, letter, legal counsel for the Nebraska
State Patrol advised Clemens that his “registration is being
terminated due to a decision of the 8th Circuit Court of Appeals
relating to out-of-state juvenile adjudications.” The Eighth
Circuit opinion to which the letter referred was A.W. by and
through Doe, supra, filed on July 31, 2017. In that opin-
ion, the Eighth Circuit interpreted SORA and, in particular
§ 29-4003(1)(a), which provides: “[SORA] applies to any per-
son who on or after January 1, 1997: . . . (iv) [e]nters the state
and is required to register as a sex offender under the laws of
another village, town, city, state, territory, commonwealth, or
other jurisdiction of the United States.” In its opinion in A.W.
by and through Doe, based on its interpretation of the term “sex
offender,” the Eighth Circuit concluded that § 29-4003(1)(a)(iv)
of SORA did not apply to persons who move to Nebraska from
another state and were required to register in that other state
if the registration required in the other state was a result of a
juvenile adjudication rather than a criminal conviction.
At the appeal bond hearing, Clemens stated that the letter
from the Nebraska State Patrol and the Eighth Circuit deci-
sion were “why [he] filed the appeal” and that they indicated
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“a mitigating circumstance [such that he should be] released
on an appeal bond.” Clemens did not ask to withdraw his
plea, nor did he request any relief other than the setting of an
appeal bond.
The State responded that it did not have any objection to the
court’s setting a bond in this case, but it stated that it had sent
an email to the court and to Clemens’ counsel “with a deter-
mination by the Patrol, subsequent to the letter that [Clemens
had] offered [to the court] that says, oh, wait a minute, we
didn’t know some other things.” The State continued by say-
ing that the “issue is not cut and dry, as it would appear from
just those two exhibits.” The State concluded that it “just
want[ed] the Court to be aware of that” and repeated that it
did not object to setting a bond. The court then set a bond
for Clemens.
Clemens appeals his conviction and sentence.
ASSIGNMENT OF ERROR
Clemens claims that the district court “committed plain error
by accepting the factual basis at the plea, and by sentencing
[him].” Clemens argues that there was no factual basis for
the district court to accept his plea, because under the Eighth
Circuit’s interpretation of SORA, he was not required to regis-
ter in Nebraska and therefore he could not have violated SORA
by failing to register in Nebraska.
We note that while Clemens claimed that the court com-
mitted plain error “by sentencing” him, he does not make a
separate argument regarding sentencing per se. Instead, his
argument appears to be that because the court should not have
accepted his plea, the court should not have sentenced him at
all. Therefore, our resolution of the sentencing claim is based
entirely on our resolution of the claim relating to acceptance
of the plea.
STANDARDS OF REVIEW
[1,2] A trial court is given discretion as to whether to accept
a guilty plea, and an appellate court will overturn that decision
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only where there is an abuse of discretion. State v. Russell, 291
Neb. 33, 863 N.W.2d 813 (2015). 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 matters submitted for disposition.
State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017).
[3] Statutory interpretation presents a question of law, which
an appellate court reviews independently. See State v. Kennedy,
299 Neb. 362, 908 N.W.2d 69 (2018).
ANALYSIS
This Court Treats Clemens’ Claim of Plain Error
as Challenge to Court’s Finding That His Plea
Was Entered Understandingly and Voluntarily.
We first address the procedural posture of this case and the
manner in which Clemens claims error on appeal. Clemens
asserts on appeal that the district court committed plain error
when it accepted the factual basis of his plea and sentenced
him. In particular, he contends that he was not required to reg-
ister as a sex offender in Nebraska and that therefore, he could
not have been found guilty of a violation or attempted violation
of SORA based on a failure to register.
Clemens phrases his assignment of error as an assertion
that the court committed “plain error.” He apparently raises
the issue as plain error because he did not object to the factual
basis at the plea hearing and he did not move to withdraw his
plea after he received the letter from the Nebraska State Patrol.
Thus, Clemens could not assign error based on the court’s
“overruling” an objection he did not raise or a motion he did
not make.
Instead of seeking a ruling directly challenging the neces-
sity to register, the only point at which Clemens brought to the
district court’s attention the issue of whether he was required
to register was in the context of the appeal bond hearing. At
that hearing, he stated that he was offering evidence regard-
ing the issue of whether he was required to register “just for
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the purpose of setting the appeal bond” and, as noted above,
that the evidence he presented indicated “a mitigating circum-
stance [such that he should be] released on an appeal bond.”
Although the State took issue with the import of the evidence
offered by Clemens, it stated that it did not object to the
court’s setting a bond for Clemens. The court then set a bond
for Clemens, and thus, Clemens could not assign error to the
denial of a bond.
Regarding the substance of the assertion of plain error in
this appeal, we note that in State v. Wilkinson, 293 Neb. 876,
881 N.W.2d 850 (2016), we concluded that a defendant did
not waive a challenge to the factual basis for a plea when he
entered a plea. We stated that a sufficient factual basis is a
requirement for finding that a plea is entered into understand-
ingly and voluntarily. Therefore, on appeal, one of the limited
challenges a defendant may raise to a plea that was accepted
by the trial court is the claim that the plea was not understand-
ingly and voluntarily made. In view of the foregoing, we read
Clemens’ assertion of plain error in this appeal as a challenge
to the court’s acceptance of his plea on the limited basis that
the plea was not understandingly and voluntarily made because
there was not a sufficient factual basis for the plea.
Based on Plain Reading of SORA Registration
Requirements, Clemens Was Required to Register
Under SORA: The Factual Basis for
Clemens’ Plea Was Sufficient.
We note at this point that the parties indicate on appeal, and
it is reflected in the presentence report prepared after the plea
was accepted, that Clemens was a juvenile at the time of the
events leading to his adjudication in Colorado. We accept that
understanding for the purpose of our analysis.
Relying on the Nebraska State Patrol’s letter and the Eighth
Circuit’s interpretation of § 29-4003(1)(a)(iv) in A.W. by and
through Doe v. State, 865 F.3d 1014 (8th Cir. 2017), Clemens
contends that the factual basis in this case was not sufficient
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because, inter alia, his Colorado registration from a juvenile
adjudication and the factual basis recited by the State did
not include an allegation that he was required to register in
Colorado based on an actual “conviction.” Brief for appel-
lant at 5. He contends there was not a sufficient factual basis
because he was not in fact required to register in Nebraska and
therefore could not have violated or attempted to violate SORA
by failing to register. Clemens basically argues that he could
not have understandingly and voluntarily pled guilty to an
offense he did not commit. We conclude that there was a suf-
ficient factual basis to support Clemens’ plea to an attempted
violation of SORA and that the court did not err when it
accepted the plea.
[4-6] To support a plea of guilty or no contest, the record
must establish that (1) there is a factual basis for the plea and
(2) the defendant knew the range of penalties for the crime
with which he or she is charged. State v. Wilkinson, supra.
“When a court accepts a defendant’s plea of guilty or no con-
test, the defendant is limited to challenging whether the plea
was understandingly and voluntarily made and whether it was
the result of ineffective assistance of counsel.” Id. at 881, 881
N.W.2d at 855. A sufficient factual basis is a requirement for
finding that a plea was entered into understandingly and vol-
untarily. Id.
Clemens pled guilty to an attempted violation of
§ 29-4011(1), which provides that “[a]ny person required
to register under [SORA] who violates the act is guilty of a
Class IIIA felony.” The offense as charged by the State was
that Clemens violated SORA when he failed to timely register
as required by §§ 29-4003(1)(a)(iv) and 29-4004(1). Section
29-4003(1)(a) provides that SORA “applies to any person who
on or after January 1, 1997,” meets one of the listed criteria,
including the criterion listed in subsection (1)(a)(iv), referring
to a person who “[e]nters the state and is required to register
as a sex offender under the laws of another village, town,
city, state, territory, commonwealth, or other jurisdiction of
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the United States.” Section 29-4004(1) provides that “[a]ny
person subject to [SORA] shall register within three working
days after becoming subject to the act at a location desig-
nated by the Nebraska State Patrol for purposes of accepting
such registration.”
As noted above, the factual basis provided by the State at
the plea hearing held on June 5, 2017, included allegations
to the effect that prior to June 2016, Clemens had lived in
Colorado; that he moved to Nebraska in June 2016; that at
the time he moved to Nebraska, he was required to register
as a sex offender in Colorado; and that he had never regis-
tered as a sex offender in Nebraska or in Lancaster County.
The foregoing factual basis would appear to support a con-
viction under § 29-4011(1) based on the plain language of
§§ 29-4003(1)(a)(iv) and 29-4004(1).
Notwithstanding the facts recited by the State, Clemens
argues that the factual basis was not sufficient, because the
language in § 29-4003(1)(a)(iv) that one is “required to register
as a sex offender” should be made by reference to Nebraska
law concerning who is required to register in Nebraska—
not Colorado law concerning who is required to register in
Colorado. In this regard, Clemens points out that juveniles
adjudicated delinquent in Nebraska do not have to register
under SORA, whereas in Colorado, they are required to do so.
As a consequence of his interpretation of subsection (1)(a)(iv),
Clemens maintains that the plea did not satisfy his reading of
§ 29-4003(1)(a)(iv).
Clemens’ interpretation is based on the Eighth Circuit’s
decision in A.W. by and through Doe v. State, 865 F.3d 1014
(8th Cir. 2017). As we noted above, that case held that the
term “sex offender” as used in § 29-4003(1)(a)(iv) refers
only to a person who has been criminally convicted of a sex
offense, but does not include one who is required to register in
another state based on a juvenile adjudication which is gener-
ally not considered a criminal “conviction” under Nebraska
law. Clemens argues that because he was required to register
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in Colorado based on a juvenile adjudication but not a criminal
conviction, he was not a “sex offender” within the meaning of
§ 29-4003(1)(a)(iv).
In A.W. by and through Doe, supra, the Eighth Circuit
rejected the State’s argument that under § 29-4003(1)(a)(iv),
the determination of whether one is required to register as
a sex offender in another jurisdiction is to be determined
based on that other jurisdiction’s definition of the term “sex
offender.” The Eighth Circuit reasoned instead that whether one
is required to register as a sex offender in the other jurisdiction
depends on whether the registration requirement in that other
jurisdiction is based on the person’s being a “sex offender” as
that term is defined by Nebraska law. Because SORA does not
include a definition of the term “sex offender,” and given its
approach to subsection (1)(a)(iv), the Eighth Circuit looked to
ascertain who would be required to register as a “sex offender”
under Nebraska law. The Eighth Circuit then determined a
criminal “conviction” is necessary to being considered a “sex
offender” under Nebraska law, and it reasoned that because a
juvenile adjudication is not considered a “conviction” under
Nebraska law, one who is required to register in another state
because of a juvenile adjudication is not a “sex offender” under
Nebraska law and therefore not “required to register as a sex
offender under the laws of another” jurisdiction for purposes of
§ 29-4003(1)(a)(iv).
[7-9] Resolution of the issue of whether Clemens was
required to register under SORA requires us to interpret
§ 29-4003(1)(a)(iv), and we therefore review standards relevant
to statutory interpretation. Statutory language is to be given its
plain and ordinary meaning. State v. Jasa, 297 Neb. 822, 901
N.W.2d 315 (2017). An appellate court will not look beyond a
statute to determine the legislative intent when the words are
plain, direct, or unambiguous. Id. When interpreting a stat-
ute, effect must be given, if possible, to all the several parts
of a statute; no sentence, clause, or word should be rejected
as meaningless or superfluous if it can be avoided. State v.
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Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018). An appellate
court must look to the statute’s purpose and give to the statute
a reasonable construction which best achieves that purpose,
rather than a construction which would defeat it. Id.
[10] We respectfully disagree with the Eighth Circuit’s inter-
pretation of § 29-4003(1)(a)(iv) and reject Clemens’ argument
based thereon. We think that the Eighth Circuit’s decision to
focus on the meaning of “sex offender” under Nebraska law
and the posited requirement of a “conviction” deviates from a
plain reading of § 29-4003(1)(a)(iv). To repeat, § 29-4003(1)(a)
provides that SORA “applies to any person who on or after
January 1, 1997: . . . (iv) [e]nters the state and is required to
register as a sex offender under the laws of another village,
town, city, state, territory, commonwealth, or other jurisdiction
of the United States.” Our plain reading of the statute leads us
to conclude that “required to register as a sex offender” is mod-
ified by “under the laws of another . . . jurisdiction.” Reading
the section as a whole, whether one is “required to register
as a sex offender” in another jurisdiction is determined under
the laws of the other jurisdiction rather than under Nebraska
law. Section 29-4003(1)(a)(iv) adds no additional requirement
that registration in the other jurisdiction must be based on a
“conviction” or an offense that would have required the per-
son to register in Nebraska if the offense had been committed
in Nebraska.
In this regard and in contrast to SORA’s § 29-4003(1)(a)(iv),
we are aware of other states’ sex offender statutes and note
that elsewhere there is deliberate language, such as requiring
registration if the individual was “convicted” in the other state;
such statutes would be compatible with the Eighth Circuit’s
approach to § 29-4003(1)(a)(iv). E.g., State v. Frederick, 292
Kan. 169, 174, 251 P.3d 48, 51 (2011) (determining person
required to register in other state based on juvenile adjudica-
tion not required to register in Kansas, because Kansas statute
refers to person convicted in other state and under Kansas law,
“convictions” do not include “adjudications”).
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Our reading of § 29-4003(1)(a)(iv) is bolstered by read-
ing other provisions of § 29-4003(1)(a) as well as the stat-
ute as a whole. Section 29-4003(1)(a) describes persons to
whom SORA applies. Section 29-4003(1)(a)(i)(A) through (N)
lists the sexual predatory conduct to which SORA applies.
Subsection 29-4003(1)(a)(ii) in particular requires persons to
register in Nebraska who have “ever pled guilty to, pled nolo
contendere to, or been found guilty of any offense that is sub-
stantially equivalent to a registrable offense under subdivision
(1)(a)(i) of this section by” another jurisdiction.
Section 29-4003(1)(a)(ii) uses the language of criminal law
and essentially requires a person with a “conviction” for a
sex offense in another jurisdiction to register in Nebraska. By
imposing a “conviction” requirement onto § 29-4003(1)(a)(iv),
in A.W. by and through Doe v. State, 865 F.3d 1014 (8th Cir.
2017), the Eighth Circuit’s reading of subsection (1)(a)(iv)
tends to make it superfluous to subsection (1)(a)(ii). We rec-
ognize there is some overlap between subsections (1)(a)(ii)
and (1)(a)(iv), for example, where one was convicted of an
offense and required to register in another jurisdiction and
also would have been required to register in Nebraska if the
offense had been committed in Nebraska. However, as we read
§ 29-4003(1)(a), each subsection covers some circumstances
that the other does not. Subsection (1)(a)(ii) covers persons
convicted of an offense in another state that would have
required registration in Nebraska, whether or not that person
is required to register under the laws of the other jurisdiction,
whereas subsection (1)(a)(iv) covers persons who are required
to register as a sex offender in another jurisdiction whether
or not they would otherwise have been required to register in
Nebraska. Thus, in contrast to the Eighth Circuit’s approach
to § 29-4003(1)(a)(iv), our reading tends to make subsections
(1)(a)(ii) and (1)(a)(iv) harmonious.
We have reviewed the jurisprudence relative to registrable
offenses and believe our reading of § 29-4003(1)(a)(iv) is con-
sistent with the approaches taken by other states addressing
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when to require registration of a person coming into the
state from another state. The literature recognizes differing
approaches in imposing registration requirements for one
who moves from another state to the forum state. Wayne A.
Logan, Horizontal Federalism in an Age of Criminal Justice
Interconnectedness, 154 U. Pa. L. Rev. 257 (2005). Alternative
approaches have been described as being either “internal” or
“external.” Id. at 261. Under an internal approach, the forum
state “requires that out-of-state convictions, and any punish-
ment resulting from those convictions, satisfy the eligibility
requirements of the forum state’s registration . . . law.” Id.
Under an external approach, the forum state “allows such
decisions to be based on the legal determinations of the forum
state’s fellow sovereigns.” Id. Some state courts have noted
that their statutes take both approaches. See Crabtree v. State,
389 S.W.3d 820 (Tex. Crim. App. 2012) (Alcala, J., dissenting;
Johnson and Cochran, JJ., join).
Nebraska’s statute uses both approaches. Section
29-4003(1)(a)(ii) uses the internal approach. And, although
the Eighth Circuit applied an internal approach analysis to
§ 29-4003(1)(a)(iv), we believe § 29-4003(1)(a)(iv) is an exter-
nal approach statute. See Com. v. Bell, 83 Mass. App. 82, 981
N.E.2d 220 (2013) (Grainger, J., dissenting in part) (identifying
§ 29-4003(1)(a)(iv) as being among statutes from other states
that require registration in forum state based on registration
requirement in another state whether or not offense would have
required registration if committed in forum state).
We note that in Murphy v. Commonwealth, 500 S.W.3d
827 (Ky. 2016), the Supreme Court of Kentucky considered
a statute that used an external approach similar to that used
in § 29-4003(1)(a)(iv). Referring to the Kentucky statute, the
court in Murphy stated that the law at issue required registra-
tion in Kentucky for “‘a person . . . required to register under
. . . the laws of another state . . . .’” 500 S.W.3d at 829. The
court in Murphy concluded that the “plain language of the
statute” required the defendant, who was required to register
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in another state based on that other state’s law, to register
in Kentucky. 500 S.W.3d at 831. In so concluding, the court
rejected an argument—similar to that urged by Clemens—that
a defendant is not required to register in Kentucky, because his
registration in the other state arose from a juvenile adjudication
and Kentucky did not require registration for persons found
to have committed a sex offense in a juvenile adjudication
in Kentucky.
When it rejected the defendant’s argument, the court in
Murphy reasoned that public policy regarding whether and
which juveniles should register was to be determined by the
Kentucky General Assembly rather than the court and that
“if the General Assembly has required registration of some
juveniles from other states, then that is the law.” 500 S.W.3d
at 832. For completeness, we note that after the decision in
Murphy, the Kentucky General Assembly amended the statute
to exclude registration based on juvenile adjudications in other
states. See Ky. Rev. Stat. Ann. § 17.510(6)(b) (LexisNexis
Cum. Supp. 2017) (providing in part that “[n]o person shall be
required to register under this subsection for a juvenile adjudi-
cation if such an adjudication in this Commonwealth would not
create a duty to register”).
As we discussed above, the external approach of the plain
language of § 29-4003(1)(a)(iv) requires registration in this
state when the person was required to register as a sex offender
in the other jurisdiction. This statute’s registration requirement
does not explicitly require a “conviction” in the other state, nor
does it explicitly exclude from registration a juvenile adjudica-
tion in the other state. If the policy of Nebraska is to exclude
registration when a person moves to Nebraska with a registra-
tion requirement in another state based on a juvenile adjudica-
tion, then our Legislature would need to make that decision
and amend our statutes. As our statute now reads, we conclude
§ 29-4003(1)(a)(iv) requires registration based on a registration
requirement from another state even if the requirement in the
other state is based on a juvenile adjudication.
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STATE v. CLEMENS
Cite as 300 Neb. 601
[11] In Skaggs v. Nebraska State Patrol, 282 Neb. 154, 804
N.W.2d 611 (2011), we held that a sex offender registrant’s
actual registration under another jurisdiction’s law is con-
clusive evidence that the registrant was required to register
within the meaning of § 29-4003(1)(a)(iv). Given Skaggs and
our current holding, there was a sufficient factual basis in
the instant case to accept the plea, because the basis set forth
at the plea hearing showed that at the time Clemens entered
Nebraska, he was required to register and actually was regis-
tered as a sex offender in Colorado. Under § 29-4003(1)(a)(iv),
that registration requirement under Colorado law was all that
was needed to establish that he was required to register in
Nebraska under SORA. When the facts showed that Clemens
failed to register in Nebraska within 3 working days as
required by § 29-4004(1), a factual basis was established to
find him guilty under § 29-4011(1) of an attempted violation
of SORA.
For completeness, we note that there are issues we need not
and do not address in this opinion. We are aware that there is
some argument by Clemens that it would violate certain con-
stitutional rights to require registration in Nebraska based on
his Colorado juvenile adjudication. In this case, Clemens did
not raise a constitutional challenge to § 29-4003(1)(a)(iv) in
the district court and therefore did not preserve any such chal-
lenge for our review on appeal. In this regard, we also note that
certain constitutional issues were raised in A.W. by and through
Doe v. State, 865 F.3d 1014 (8th Cir. 2017), but not resolved,
because of the Eighth Circuit’s interpretation of SORA as not
requiring registration in that case.
We also are aware that issues were raised in A.W. by and
through Doe, supra, regarding whether it would be appropriate
for Nebraska to make registration information public when the
person is required to register in Nebraska based on a juvenile
adjudication in another state and the person would not have
been subject to public disclosure in the other state. For pur-
poses of the present case, our decision is limited to whether
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there was a factual basis to support Clemens’ plea to attempted
violation of SORA. We determined that Clemens was required
to register under SORA; however, whether the State may
make certain information public after a person has registered
is a separate issue from whether the person is required to
register, and the public disclosure question is not at issue in
this case. Similarly, issues regarding the length of time one
may be required to register in Nebraska based on a registra-
tion requirement from another state are outside the scope of
this decision.
CONCLUSION
We read SORA’s § 29-4003(1)(a)(iv) to require registra-
tion in Nebraska where an individual is required to regis-
ter in another village, town, city, state, territory, common-
wealth, or other jurisdiction of the United States, regardless
of whether the registration in the other jurisdiction is based
on a juvenile adjudication. Based on our interpretation of
§ 29-4003(1)(a)(iv), we determine that there was a sufficient
factual basis for Clemens’ plea to attempted violation of
SORA, and we reject his claim that the plea was not made
understandingly and voluntarily. We therefore find no error in
the district court’s acceptance of Clemens’ plea or the sentence
imposed upon him. Accordingly, we affirm Clemens’ convic-
tion and sentence.
A ffirmed.