State v. Aguallo

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/15/2016 09:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
STATE v. AGUALLO
Cite as 294 Neb. 177State of Nebraska, appellee, v.
M anuel A. Aguallo, appellant.
___ N.W.2d ___
Filed July 15, 2016. No. S-15-849.
1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the lower
court’s determination.
2. Criminal Law: Statutes: Legislature: Sentences. Generally, if the
Legislature amends a criminal statute by mitigating the punishment after
the commission of a prohibited act but before final judgment, the pun-
ishment is that provided by the amendatory act unless the Legislature
specifically provided otherwise.
3. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
4. Statutes. It is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it within the
province of a court to read anything plain, direct, or unambiguous out of
a statute.
5. Statutes: Legislature: Intent. In reading a statute, a court must deter-
mine and give effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
6. ____: ____: ____. Components of a series or collection of statutes
pertaining to a certain subject matter are in pari materia and should
be conjunctively considered and construed to determine the intent of
the Legislature, so that different provisions are consistent, harmonious,
and sensible.
7. Sentences: Legislature: Intent: Time. The Legislature did not intend
penalty reductions made in 2015 to Class IIIA felonies to apply retroac-
tively to offenses committed prior to August 30, 2015.
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STATE v. AGUALLO
Cite as 294 Neb. 1778. Appeal and Error: Words and Phrases. Plain error exists where there
is error, plainly evident from the record but not complained of at trial,
which prejudicially affects a substantial right of a litigant and is of such
a nature that to leave it uncorrected would cause a miscarriage of justice
or result in damage to the integrity, reputation, and fairness of the judi-
cial process.
Appeal from the District Court for Box Butte County: Travis
P. O’Gorman, Judge. Affirmed.
Bell Island, of Island & Huff, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
Stacy, J.
Manuel A. Aguallo appeals his sentence for sexual assault
of a child, third degree. He contends the district court erred
in failing to retroactively apply recent statutory amendments
which reduced the penalty for Class IIIA felonies. We find the
reduced penalty provisions do not apply to Aguallo, and we
affirm his conviction and sentence.
FACTS
On March 4, 2015, the State filed an information charging
Aguallo with sexual assault of a child, third degree, in viola-
tion of Neb. Rev. Stat. § 28-320.01 (Reissue 2008). The offense
was alleged to have occurred on or about January 25, 2015. He
entered a plea of no contest on July 17. On September 9, he
was sentenced to a prison term of 59 to 60 months.
At sentencing, the district court considered the effect of
certain amendments made to Nebraska’s sentencing laws by
2015 Neb. Laws, L.B. 605. We describe some of L.B. 605’s
changes while reciting the facts of the sentencing hearing, and
we analyze the applicability of those legislative changes later
in the opinion.
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STATE v. AGUALLO
Cite as 294 Neb. 177L.B. 605 amended Nebraska law to, among other things,
reduce the penalties for a variety of felonies. Before L.B. 605,
Class IIIA felonies were punishable by a maximum of 5
years’ imprisonment, a $10,000 fine, or both, with no mini-
mum term of imprisonment.1 L.B. 605 reduced the maximum
term of imprisonment for Class IIIA felonies from 5 to 3
years and added maximum and minimum terms of postrelease
supervision.2
L.B. 605 also amended the indeterminate sentencing scheme
for Nebraska felonies. Prior to L.B. 605, Neb. Rev. Stat.
§ 29-2204 (Reissue 2008) required the court to
fix the minimum and maximum limits of the sentence to
be served within the limits provided by law for any class
of felony other than a Class IV felony . . . . If the crimi-
nal offense is a Class IV felony, the court shall fix the
minimum and maximum limits of the sentence, but the
minimum limit fixed by the court shall not be . . . more
than one-third of the maximum term . . . .3
Thus, as it existed before L.B. 605, § 29-2204 authorized inde-
terminate sentencing for all felonies and, except for Class IV
felonies, courts could impose an indeterminate sentence with
identical minimum and maximum terms, i.e., a sentence of 60
to 60 months’ imprisonment.4
L.B. 605 amended § 29-2204 to restrict indeterminate sen-
tencing to the more serious felonies and ushered in determi-
nate sentencing with postrelease supervision for Classes III,
IIIA, and IV felonies.5 As it regards indeterminate sentencing,
L.B. 605 amended § 29-2204 to provide:
Except when the defendant is found guilty of a Class IA
felony, in imposing a sentence upon an offender for any
1
See Neb. Rev. Stat. § 28-105 (Reissue 2008).
2
See § 28-105 (Supp. 2015).
3
§ 29-2204(1)(a)(ii)(A).
4
State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006).
5
See § 29-2204 (Supp. 2015) and Neb. Rev. Stat. § 29-2260 (Supp. 2015).
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STATE v. AGUALLO
Cite as 294 Neb. 177class of felony other than a Class III, IIIA, or IV felony,
the court shall fix the minimum and the maximum terms
of the sentence to be served within the limits provided by
law. . . . The minimum term fixed by the court shall be
any term of years less than the maximum term imposed
by the court.6
And L.B. 605 amended § 29-2260 to address determinate
sentencing:
For all sentences of imprisonment for Class III, IIIA,
or IV felonies, other than those imposed consecutively
or concurrently with a sentence to imprisonment for a
Class I, IA, IB, IC, ID, II, or IIA felony, the court shall
impose a determinate sentence within the applicable range
in section 28-105, including a period of post-release
supervision.7
In 2016, the Legislature amended § 29-2260 again and
moved the primary provisions governing determinate sentenc-
ing for Classes III, IIIA, and IV felonies from § 29-2260 to
§ 29-2204.02.8
In summary, L.B. 605 requires that—for those classes of fel-
onies where indeterminate sentencing is still required—courts
cannot impose a sentence with identical minimum and maxi-
mum terms. And except for circumstances not relevant here,
L.B. 605 and L.B. 1094 require imposition of a determinate
sentence and a term of postrelease supervision for Classes III,
IIIA, and IV felonies.
At Aguallo’s sentencing, the district court referenced the
sentencing changes imposed by L.B. 605. The court made
an express finding that the reduced penalty for Class IIIA
felonies did not apply to Aguallo, reasoning that the statutory
language of L.B. 605—codified at § 28-105 (Supp. 2015)
and Neb. Rev. Stat. § 28-116 (Supp. 2015)—clearly states
6
§ 29-2204(1) and (1)(a).
7
§ 29-2260(5).
8
See 2016 Neb. Laws, L.B. 1094, §§ 11 and 16.
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STATE v. AGUALLO
Cite as 294 Neb. 177the reduced penalties are not to be applied retroactively to
“any offense committed prior to August 30, 2015.” The court
also commented that because of the L.B. 605 amendments, it
could no longer impose an indeterminate sentence with identi-
cal minimum and maximum terms. The court then sentenced
Aguallo to an indeterminate sentence of 59 to 60 months’
imprisonment.
Aguallo filed this timely appeal, which we moved to our
docket pursuant to our statutory authority to regulate the case-
loads of the appellate courts of this state.9
ASSIGNMENT OF ERROR
Aguallo assigns that the district court erred in finding he
was not entitled to the reduction in penalties for Class IIIA
felonies implemented by L.B. 605.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court’s
determination.10
ANALYSIS
[2] Generally, if the Legislature amends a criminal statute
by mitigating the punishment after the commission of a pro-
hibited act but before final judgment, the punishment is that
provided by the amendatory act unless the Legislature specifi-
cally provided otherwise.11 We sometimes refer to this rule as
the “Randolph doctrine,” after its progenitor.12
Here, Aguallo was convicted of a sexual assault which
occurred in January 2015, prior to the effective date of
L.B. 605. The question presented is whether the sentencing
9
Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2014).
10
State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015); State v. Smith, 286
Neb. 77, 834 N.W.2d 799 (2013).
11
State v. Duncan, 291 Neb. 1003, 870 N.W.2d 422 (2015).
12
See, id.; State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971).
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STATE v. AGUALLO
Cite as 294 Neb. 177changes implemented by L.B. 605 should have been applied
retroactively to Aguallo.
[3-6] Our analysis is guided by familiar rules of statutory
construction. Statutory language is to be given its plain and
ordinary meaning, and an appellate court will not resort to
interpretation to ascertain the meaning of statutory words
which are plain, direct, and unambiguous.13 It is not within
the province of a court to read a meaning into a statute that
is not warranted by the language; neither is it within the
province of a court to read anything plain, direct, or unam-
biguous out of a statute.14 In reading a statute, a court must
determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the
statute considered in its plain, ordinary, and popular sense.15
Components of a series or collection of statutes pertaining to
a certain subject matter are in pari materia and should be con-
junctively considered and construed to determine the intent
of the Legislature, so that different provisions are consistent,
harmonious, and sensible.16
When the Legislature amended the penalty provisions in
§ 28-105 to, among other things, reduce the penalties for
Class IIIA felonies, it included the following language regard-
ing retroactive application: “The changes made to the penal-
ties for Class III, IIIA, and IV felonies by laws 2015, LB605,
do not apply to any offense committed prior to August 30,
2015, as provided in section 28-116.”17 As such, the plain
language of § 28-105(7) provides that L.B. 605’s penalty
13
State v. Sikes, 286 Neb. 38, 834 N.W.2d 609 (2013); State v. Parks, 282
Neb. 454, 803 N.W.2d 761 (2011).
14
State v. Warriner, 267 Neb. 424, 675 N.W.2d 112 (2004); State v. Gartner,
263 Neb. 153, 638 N.W.2d 849 (2002).
15
State v. Mucia, 292 Neb. 1, 871 N.W.2d 221 (2015); State v. Huff, 282
Neb. 78, 802 N.W.2d 77 (2011).
16
State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012).
17
§ 28-105(7).
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STATE v. AGUALLO
Cite as 294 Neb. 177changes do not apply to “any offense” committed prior to
August 30, 2015.
Section 28-116 provides in part:
The changes made to the sections listed in this section
by Laws 2015, LB605, shall not apply to any offense
committed prior to August 30, 2015. Any such offense
shall be construed and punished according to the provi-
sions of law existing at the time the offense was com-
mitted. For purposes of this section, an offense shall be
deemed to have been committed prior to August 30, 2015,
if any element of the offense occurred prior to such date.
Section 28-116 then goes on to list more than 60 statutes that
were amended in some respect by the many provisions of
L.B. 605. The list of amended statutes in § 28-116 includes
§ 28-105 (statute imposing penalties for Class IIIA felonies),
§ 29-2204 (statute governing determinate and indeterminate
sentences for felonies other than Classes IA, III, IIIA, and IV),
and § 29-2260 (statute governing determinate sentences for
Classes III, IIIA, and IV felonies).
On appeal, Aguallo observes that the list of statutes in
§ 28-116 does not include the statute under which he was con-
victed, § 28-320.01, and he argues this omission suggests the
Legislature intended to permit retroactive application of the
reduced penalties to his offense. We disagree.
[7] It is clear from reviewing L.B. 605 that § 28-320.01
is not among the statutory sections listed in § 28-116 for the
simple reason that L.B. 605 did not make any changes to the
classification or the elements of that crime. L.B. 605 did, how-
ever, make changes to the penalties for all Class IIIA felonies,
and § 28-320.01 is a Class IIIA felony. It is clear from the plain
language of §§ 28-105(7) and 28-116 that the Legislature did
not intend the penalty reductions to Class IIIA felonies to apply
retroactively to offenses committed prior to the effective date
of L.B. 605. It is thus immaterial that the offense Aguallo com-
mitted is not among those listed in § 28-116, and his argument
to the contrary is without merit.
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Cite as 294 Neb. 177Finally, although the State did not file a cross-appeal con-
tending the sentence imposed was excessively lenient, it urges
us to recognize plain error. The State argues the district court
committed plain error in imposing an indeterminate sentence of
59 to 60 months’ imprisonment when it could have, consistent
with Nebraska law in effect at the time the offense was com-
mitted and L.B. 605, imposed a sentence of 60 months to 60
months’ imprisonment.
[8] Plain error exists where there is error, plainly evident
from the record but not complained of at trial, which prejudi-
cially affects a substantial right of a litigant and is of such a
nature that to leave it uncorrected would cause a miscarriage
of justice or result in damage to the integrity, reputation, and
fairness of the judicial process.18 Aguallo’s sentence of 59 to
60 months’ imprisonment was within the statutory limits for
a Class IIIA felony,19 and the slight difference in punishment
about which the State complains does not rise to the level of
plain error under the circumstances of this case.
CONCLUSION
The reduced penalties for Class IIIA felonies do not apply
retroactively to Aguallo, because his offense was committed
before the effective date of L.B. 605. Aguallo’s sentence of 59
to 60 months’ imprisonment was within statutory limits and
was not plain error. His conviction and sentence are affirmed.
A ffirmed.
18
State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012).
19
See § 28-105 (Reissue 2008).