State v. Dill

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/31/2018 09:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. DILL
Cite as 300 Neb. 344
State of Nebraska, appellee, v.
Jesse M. Dill, appellant.
___ N.W.2d ___
Filed June 22, 2018. No. S-17-991.
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. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Sentences: Probation and Parole. When a court sentences a defendant
to postrelease supervision, it may impose any conditions of postrelease
supervision authorized by statute.
4. Rules of the Supreme Court: Records: Appeal and Error. Neb. Ct. R.
App. P. § 2-109(D)(1)(f) and (g) (rev. 2014) requires that factual recita-
tions be annotated to the record, whether they appear in the statement of
facts or argument section of a brief. The failure to do so may result in
an appellate court’s overlooking a fact or otherwise treating the matter
under review as if the represented fact does not exist.
5. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
6. ____. An appellate court does not consider errors which are argued but
not assigned.
Appeal from the District Court for Lancaster County: Lori
A. M aret, Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, and
John C. Jorgensen for appellant.
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STATE v. DILL
Cite as 300 Neb. 344
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
Cassel, J.
INTRODUCTION
Jesse M. Dill appeals from a sentence imposing both impris-
onment and postrelease supervision in a criminal case. But she
assigns error only to the fees and payments required under the
postrelease supervision order. We have not previously consid-
ered the issue in this context. Because we find no abuse of
discretion, we affirm.
BACKGROUND
The district court accepted Dill’s no contest plea to a
Class IIIA felony. The court imposed a determinate sentence of
1 year’s imprisonment followed by 18 months of postrelease
supervision. The court ordered Dill to pay a number of fees
in connection with the postrelease supervision: a $30 admin-
istrative enrollment fee, a $25 monthly programming fee, and
a $5 monthly fee for chemical testing. The court also ordered
Dill to pay costs associated with any evaluations, counseling,
or treatment undertaken at the direction of her postrelease
supervision officer.
At the sentencing hearing, neither party offered any evi-
dence. Both parties disclaimed any additions or corrections to
the presentence report.
Dill’s counsel objected to a number of the postrelease
supervision conditions. With regard to the various fees Dill
was ordered to pay, counsel stated that Dill previously had
been determined to be indigent and without the financial
means to pay fees. Counsel also stated that there had “been
no further assessment in regards to her ability to pay.” The
court overruled the objections and entered a postrelease
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STATE v. DILL
Cite as 300 Neb. 344
s­ upervision order containing the same conditions as had been
orally announced.
Dill filed a timely appeal, and we granted her petition to
bypass review by the Nebraska Court of Appeals.
ASSIGNMENT OF ERROR
Dill assigns that the court abused its discretion by imposing
costs and fees of postrelease supervision upon her.
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.1 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence.2
ANALYSIS
Postrelease supervision is a relatively new concept in
Nebraska sentencing law.3 As such, our case law on the subject
is scant. Last year, a defendant sought to challenge the validity
of postrelease supervision conditions imposed upon him, but
we determined that because he did not challenge those condi-
tions at the sentencing hearing, he waived his challenge.4 Here,
Dill raised her objections at the time of sentencing. This appeal
presents our first opportunity to address a preserved chal-
lenge to the conditions imposed in connection with a sentence
of postrelease supervision. But before we reach Dill’s spe-
cific arguments, we examine the statutory structure concerning
postrelease supervision.
1
State v. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018).
2
Id.
3
State v. Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018). See, also, Neb.
Rev. Stat. §§ 28-105 (Supp. 2017) and 29-2204.02 (Reissue 2016).
4
See State v. Phillips, 297 Neb. 469, 900 N.W.2d 522 (2017).
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STATE v. DILL
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Statutory Framework
The Nebraska Probation Administration Act defines
terms pertinent to postrelease supervision.5 The definition of
postrelease supervision is “the portion of a split sentence fol-
lowing a period of incarceration under which a person found
guilty of a crime . . . is released by a court subject to conditions
imposed by the court and subject to supervision by the [Office
of Probation Administration].”6 “Probation,” which “includes
post-release supervision,” is “a sentence under which a person
found guilty of a crime upon verdict or plea or adjudicated
delinquent or in need of special supervision is released by a
court subject to conditions imposed by the court and subject to
supervision.”7 And a person sentenced to postrelease supervi-
sion is called a “[p]robationer.”8 The legislative intent is clear.
Postrelease supervision is to be treated as a form of probation,
and the usual rules of law governing probation will ordinarily
apply to postrelease supervision.
A sentence of postrelease supervision is statutorily man-
dated for certain lower-level felonies. Except when a term of
probation is required by law, statutes compel the imposition
of a determinate sentence along with a sentence of postrelease
supervision for an offender convicted of a Class III, IIIA, or IV
felony.9 But an offender convicted of one of those enumerated
felonies is not subject to postrelease supervision if he or she
is also sentenced to imprisonment for a felony with a higher
penalty classification.10 When a court sentences an offender to
postrelease supervision, the court shall specify the term of such
postrelease supervision.11
5
See Neb. Rev. Stat. §§ 29-2246 to 29-2269 (Reissue 2016 & Supp. 2017).
6
See § 29-2246(3) and (13).
7
§ 29-2246(4).
8
§ 29-2246(5).
9
See §§ 28-105(1) and 29-2204.02.
10
See 28-105(6).
11
§ 29-2263(2).
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Other statutes apply procedures of probation to postrelease
supervision. All sentences of postrelease supervision are
served under the jurisdiction of the Office of Probation
Administration and are subject to conditions imposed
under § 29-2262 and subject to sanctions authorized under
§ 29-2266.02.12 A court may revoke a probationer’s postrelease
supervision upon finding that the probationer violated one of
its conditions.13
Statute and Rule Implementing
Postrelease Supervision
The legislation that introduced postrelease supervision into
Nebraska’s statutes14 authorized the adoption of rules and
regulations governing probation, which, as we have observed,
includes postrelease supervision. The Nebraska Probation
Administration Act now defines “[r]ules and regulations”
to mean “policies and procedures written by the [Office of
Probation Administration] and approved by the Supreme
Court.”15
The act speaks broadly. It authorizes rules and regulations
• 
“as may be necessary or proper for the operation of the
[Office of Probation Administration] or [Nebraska Probation
System],”16
• “for transitioning individuals on probation across levels of
supervision and discharging them from supervision consistent
with evidence-based practices,”17
• to “ensure supervision resources are prioritized for individ­
uals who are high risk to reoffend,”18
12
§ 28-105(5).
13
§ 29-2268(2).
14
See 2015 Neb. Laws, L.B. 605.
15
§ 29-2246(14).
16
§ 29-2252(11).
17
Id.
18
Id.
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• for “transitioning individuals down levels of supervision
intensity,”19
• for “establish[ing] incentives for earning discharge from
supervision,”20
• “for the creation of individualized post-release supervision
plans,”21
• for governing supervision of probationers, advising courts of
situations requiring modification of conditions or warrant-
ing termination, and providing additional duties for district
probation officers,22 and
• for dealing with violations of probation imposed for misde-
meanors23 and felonies.24
In accordance with this broad authority, the probation admin-
istrator proposed—and this court adopted—a rule to address
orders of postrelease supervision.25 There is no challenge to the
constitutionality or validity of the rule in this appeal. Indeed,
Dill does not cite to or otherwise recognize the existence of the
rule. Nonetheless, we apply the rule to this appeal.
The rule dictates that the postrelease supervision be pro-
nounced at sentencing.26 The timing is logical, because
postrelease supervision is part of the sentence.27 Under the rule,
the court shall impose the term of postrelease supervision and
shall also enter a separate postrelease supervision order that
sets forth conditions under § 29-2262.28 Thus, the imposition
of conditions is not deferred to a later time.
19
Id.
20
Id.
21
§ 29-2252(19).
22
See § 29-2258.
23
See § 29-2266.01.
24
See § 29-2266.02.
25
Neb. Ct. R. § 6-1904 (rev. 2016).
26
See § 6-1904(A).
27
See, generally, State v. Phillips, supra note 4.
28
See § 6-1904(A).
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STATE v. DILL
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Statutes R egarding
Fees and Costs
[3] We have said that when a court sentences a defendant
to probation, it may impose any conditions of probation that
are authorized by statute.29 Because postrelease supervision
is a form of probation, the same rule necessarily follows for
postrelease supervision. We now hold that when a court sen-
tences a defendant to postrelease supervision, it may impose
any conditions of postrelease supervision authorized by statute.
Thus, the question turns to what the statutes authorize as to
such fees and payments.
As part of the governing structure, the Legislature delineated
certain fees that an adult probationer must pay. These include
(1) a one-time administrative enrollment fee of $30,30 (2) a
monthly probation programming fee of $25 for the duration of
the postrelease supervision,31 and (3) a larger monthly program-
ming fee where intensive supervision probation or participation
in non-probation-based programs or services is involved.32 The
fees imposed pursuant to § 29-2262.06 are specifically autho-
rized as a condition of probation under § 29-2262(2)(t).
As to these monthly programming fees, the statute requires
a court to waive payment in whole or in part “if after a hearing
a determination is made that such payment would constitute an
undue hardship on the offender due to limited income, employ-
ment or school status, or physical or mental handicap.”33 But
the waiver must be limited to “the period of time that the
probationer . . . is unable to pay his or her monthly probation
programming fee.”34 Thus, the statute contemplates that the
assessment of undue hardship may change during postrelease
29
State v. Rieger, 286 Neb. 788, 839 N.W.2d 282 (2013).
30
§ 29-2262.06(3)(a).
31
§ 29-2262.06(3)(b).
32
§ 29-2262.06(3)(c).
33
§ 29-2262.06(4).
34
Id.
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supervision. In other words, the monthly fee may go up
or down.
The monthly probation programming fee is separate and
apart from fees that may be imposed for tests to deter-
mine the presence of drugs or alcohol, psychological evalua-
tions, offender assessment screens, and rehabilitative services
required in the identification, evaluation, and treatment of
offenders.35 But as to such tests, evaluations, screens, and
services, the probationer shall be required to pay them only
if the “offender has the financial ability to pay.”36 There is
no suggestion in the statute that such “ability to pay” is a
static concept that cannot be reassessed during the period of
postrelease supervision.
At the time of sentencing, the court makes an initial deter-
mination regarding the existence of an undue hardship regard-
ing monthly programming fees and, if § 29-2262(2)(m) serv­
ices are ordered, the ability to pay for them. Its decision is
informed by factual information gathered in connection with
the preparation of a presentence report or by evidence adduced
at the time of sentencing.
This inquiry differs from that regarding indigency for the
purpose of the right to court-appointed counsel. At the time of
a felony defendant’s first appearance before a court, the court
advises him or her of the right to court-appointed counsel if he
or she is indigent.37 Indigent means the “inability to retain legal
counsel without prejudicing one’s financial ability to provide
economic necessities for one’s self or one’s family.”38 If the
defendant asserts indigency, “the court shall make a reasonable
inquiry to determine his or her financial condition and may
require him or her to execute an affidavit of indigency.”39
35
See §§ 29-2262(2)(m) and 29-2262.06(8).
36
§ 29-2262(2)(m).
37
Neb. Rev. Stat. § 29-3902 (Reissue 2016).
38
Neb. Rev. Stat. § 29-3901(3) (Reissue 2016).
39
§ 29-3902.
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STATE v. DILL
Cite as 300 Neb. 344
Modification
There are multiple points at which the conditions of
postrelease supervision may be modified. Prior to an indi-
vidual’s anticipated date of release from the Department of
Correctional Services or local county jail, the court shall
receive a postrelease supervision plan from the probation
office.40 Based upon the plan, “[t]he court shall consider modi-
fication to the post-release supervision order, upon applica-
tion and recommendation . . . .”41 If the court modifies the
postrelease supervision order, it must do so prior to the indi-
vidual’s anticipated date of release.42 Later, during the term of
postrelease supervision, the conditions of the court’s order may
be modified or eliminated under § 29-2263(3).43
Although the sentencing court can later modify the condi-
tions of postrelease supervision, it is important to raise any
objections to the conditions when they are first announced.
If a condition would be unlikely to promote rehabilitation or
reintegration or would be disproportionate, the alleged defi-
ciency should be brought to the sentencing court’s attention
for possible elimination or modification at the outset. With all
of this in mind, we now turn to Dill’s assigned error.
Dill’s A rguments
Dill challenges the imposition of fee-based conditions,
which she contends were excessive. She asserts that her chal-
lenge “essentially present[s] . . . a modified excessive sen-
tence case.”44 And she implicitly recognizes that our review
is for “an abuse of discretion.”45 She specifically challenges
four fees: the administrative enrollment fee of $30, program-
ming fees of $25 per month, chemical testing fees of $5 per
40
See § 6-1904(B) and (C).
41
Id.
42
§ 6-1904(D).
43
See § 6-1904(A).
44
Brief for appellant at 7.
45
Id.
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month, and unspecified fees associated with § 29-2262(2)(m)
services. The first two are governed by § 29-2262.06. The last
two fall under § 29-2262(2)(m). For the reasons that follow,
we find no abuse of discretion in the order establishing the
conditions of postrelease supervision.
Dill first complains that these fees amount to a de facto
fine for anyone on postrelease supervision. We disagree. As
discussed above, the fees are mandated by the Legislature.46
And Dill does not challenge the constitutionality of the statutes
or the validity of the rule adopted to implement postrelease
supervision. Instead, she submits a lengthy discussion of sen-
tencing philosophy.
[4] Dill fails to advance any specific argument, regarding
either undue hardship or inability to pay, tied to the record.
She refers to what might “typically” or “frequently” occur.47
But we are confined to the record before us. And her brief does
not cite to either the bill of exceptions or the presentence report
regarding facts that might support her argument. We have said
that Neb. Ct. R. App. P. § 2-109(D)(1)(f) and (g) (rev. 2014)
requires that factual recitations be annotated to the record,
whether they appear in the statement of facts or argument
section of a brief. The failure to do so may result in an appel-
late court’s overlooking a fact or otherwise treating the matter
under review as if the represented fact does not exist.48 We
decline to scour the record in search of facts that might support
a claim of undue hardship or inability to pay.
Dill also seems to argue that appointment of counsel and
waiver of appeal costs, ipso facto, dictate that postrelease
enrollment and programming fees would constitute an undue
hardship and that she lacks the ability to pay § 29-2262(2)(m)
rehabilitation expenses. But she cites no authority for this
proposition, and we are aware of none. Indeed, as we have
already outlined, separate statutes with differing standards
46
See §§ 29-2262 and § 29-2262.06.
47
Brief for appellant at 10.
48
State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).
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Cite as 300 Neb. 344
apply to each question. We reject the notion that application of
one statutory standard mandates the same result under a differ-
ent standard prescribed by a separate statute.
As we have already observed, the statute establishing the
monthly programming fee contemplates reevaluation during
the period of postrelease supervision. Should Dill later show
that the monthly programming fee constitutes an undue hard-
ship, she has a potential remedy. And, of course, based on the
postrelease supervision plan prepared by the probation office
prior to Dill’s release from prison, the court may modify its
postrelease supervision order.49
[5,6] Dill also argues that the district court improperly del-
egated authority with respect to one of the conditions. But this
argument addresses the propriety of the court’s allowing the
postrelease supervision officer to direct Dill to “satisfactorily
attend and successfully complete any alcohol, drug, and/or
mental health evaluation, counseling, or treatment.” And Dill
did not assign this as error; rather, she assigned only that the
court “abused its discretion by imposing costs and fees of post-
release supervision.” An alleged error must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the error to be considered by an appellate court.50 An
appellate court does not consider errors which are argued but
not assigned.51 We do not consider Dill’s improper-delegation
argument as fairly within the scope of her sole assignment of
error. Accordingly, we do not address this argument.
CONCLUSION
Because the district court did not abuse its discretion in its
imposition of conditions of postrelease supervision regarding
fees and payments, we affirm its sentence.
A ffirmed.
49
See § 6-1904(B).
50
State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).
51
State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017).