State v. Duncan

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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. DUNCAN
Cite as 291 Neb. 1003
State of Nebraska, appellee, v.
Larry F. Duncan, appellant.
___ N.W.2d ___
Filed October 23, 2015. No. S-15-083.
1. Statutes: Appeal and Error. The meaning of a statute is a question
of law which an appellate court resolves independently of the lower
court’s conclusion.
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. Sentences: Final Orders: Appeal and Error. If a defendant appeals his
or her sentence, then the sentence is not a final judgment until the entry
of a final mandate.
4. Criminal Law: Statutes: Evidence: Sentences. A mitigatory amend-
ment to a criminal statute does not apply to a pending case if the
amendment changed the substantive elements of the crime such that a
new evidentiary hearing would be needed to determine the defendant’s
punishment under the law as amended.
5. Sentences: Appeal and Error. An appellate court will not disturb a
sentence imposed within the statutory limits unless the trial court abused
its discretion.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Joe Nigro, Lancaster County Public Defender, and Shawn
Elliott for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
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STATE v. DUNCAN
Cite as 291 Neb. 1003
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
Connolly, J.
SUMMARY
Larry F. Duncan pleaded no contest to one count of operat-
ing a motor vehicle without an ignition interlock device. When
the criminal act occurred, driving without an ignition interlock
device was a Class IV felony.1 The Legislature amended the
statute while Duncan’s case was pending to make the crime a
Class I misdemeanor unless the offender had a breath alcohol
concentration of .02 of 1 gram per 210 liters or a blood alcohol
concentration of .02 of 1 gram per 100 milliliters, in which
case the crime remained a Class IV felony.2 Duncan argues that
the amendment retroactively applies to pending cases because
it mitigates the punishment. We conclude that the amendment
does not apply to Duncan’s case because it substantively rede-
fined the crime of driving without an ignition interlock device.
We therefore affirm.
BACKGROUND
In March 2014, the State charged Duncan with one count of
operating a vehicle without an ignition interlock device under
§ 60-6,211.11 (Cum. Supp. 2012) and one count of driving
during revocation under Neb. Rev. Stat. § 60-6,197.06 (Reissue
2010), both Class IV felonies.
In October 2014, the parties advised the court that they had
reached a plea agreement. Duncan pleaded no contest to driv-
ing without an ignition interlock device and to one count of
driving during revocation charged in another case. In exchange,
the State dismissed the driving during revocation charge in
this case.
According to the State’s factual basis, on August 30, 2013,
a police officer saw Duncan driving a motor vehicle. The
1
See Neb. Rev. Stat. § 60-6,211.11(1) (Cum. Supp. 2012).
2
See § 60-6,211.11 (Cum. Supp. 2014).
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STATE v. DUNCAN
Cite as 291 Neb. 1003
officer recognized Duncan because he had cited Duncan for
driving during revocation earlier in the month. He pursued the
vehicle and verified that Duncan’s operator’s license was still
revoked. After the vehicle stopped, the officer searched it and
did not find an ignition interlock device.
The court received evidence of Duncan’s third driving under
the influence conviction. As part of the sentence, the trial court
forbade Duncan from operating a motor vehicle without an
ignition interlock device.
In January 2015, the court sentenced Duncan to 1 to 2 years’
imprisonment.
Duncan appeals.
ASSIGNMENTS OF ERROR
Duncan assigns that the court erred by (1) not sentenc-
ing him under a mitigatory amendment that became effective
during the pendency of his case and (2) imposing an exces-
sive sentence.
STANDARD OF REVIEW
[1] The meaning of a statute is a question of law which
an appellate court resolves independently of the lower
court’s conclusion.3
ANALYSIS
Mitigatory A mendment
Duncan claims that a statutory amendment during the pend­
ency of his case made his crime a misdemeanor, rather than
a felony. At the time of his criminal act, § 60-6,211.11(1)
provided:
Any person who tampers with or circumvents an igni-
tion interlock device installed under a court order or
Department of Motor Vehicles order while the order is
in effect or who operates a motor vehicle which is not
equipped with an ignition interlock device in violation of
3
See State v. Frederick, ante p. 243, 864 N.W.2d 681 (2015).
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STATE v. DUNCAN
Cite as 291 Neb. 1003
a court order or Department of Motor Vehicles order shall
be guilty of a Class IV felony.
In 2014, the Legislature passed L.B. 998, which amended
§ 60-6,211.11.4 Section 60-6,211.11, in relevant part, now
provides:
(1) Except as provided in subsection (2) of this sec-
tion, any person ordered by a court or the Department of
Motor Vehicles to operate only motor vehicles equipped
with an ignition interlock device is guilty of a Class I
misdemeanor if he or she . . . operates a motor vehicle
which is not equipped with an ignition interlock device
in violation of the court order or Department of Motor
Vehicles order.
(2) Any person ordered by a court or the Department
of Motor Vehicles to operate only motor vehicles
equipped with an ignition interlock device is guilty of a
Class IV felony if he or she . . . operates a motor vehicle
which is not equipped with an ignition interlock device
in violation of the court order or Department of Motor
Vehicles order . . . when he or she has a concentration
of two-hundredths of one gram or more by weight of
alcohol per one hundred milliliters of his or her blood or
a concentration of two-hundredths of one gram or more
by weight of alcohol per two hundred ten liters of his or
her breath.
L.B. 998 became effective after Duncan committed the
criminal act but before he pleaded no contest. The bill had
an emergency clause,5 and the Governor signed it into law in
April 2014.6 The State filed the information in March, Duncan
pleaded no contest in October, and the court sentenced Duncan
in January 2015. L.B. 998 does not have a saving clause or
any other express statement concerning retroactivity.
4
2014 Neb. Laws, L.B. 998, § 13.
5
Id., § 20.
 6
Legislative Journal, 103d Leg., 2d Sess. 1490 (Apr. 9, 2014).
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[2,3] 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.7 We sometimes refer to this rule as
the “Randolph doctrine,” after its progenitor.8 If a defendant
appeals his or her sentence, then the sentence is not a final
judgment until the entry of a final mandate.9
The starting point of the Randolph doctrine is our decision
in State v. Randolph.10 There, a jury convicted the defendants
of kidnapping and the court sentenced them to life imprison-
ment. When the criminal acts occurred, a life sentence was
mandatory.11 But an amendment took effect during the pend­
ency of the case which reduced the maximum penalty to 50
years’ imprisonment.12 The defendants argued that the amend-
ment made their life sentences excessive.
In the absence of an express statement of intent, we pre-
sumed that the Legislature wanted the new punishment, which
it now believed to fit the crime, to apply wherever possible:
“It is an inevitable inference that the Legislature must
have intended that the new statute imposing the new
lighter penalty now deemed to be sufficient should apply
to every case to which it constitutionally could apply.
The amendatory act imposing the lighter punishment can
be applied constitutionally to acts committed before its
passage provided the judgment convicting the defend­
ant of the act is not final. This intent seems obvious,
because to hold otherwise would be to conclude that the
7
E.g., State v. Castaneda, 287 Neb. 289, 842 N.W.2d 740 (2014).
8
See State v. Urbano, 256 Neb. 194, 205, 589 N.W.2d 144, 153 (1999),
citing State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971).
9
See Jones v. Clarke, 253 Neb. 161, 568 N.W.2d 897 (1997).
10
State v. Randolph, supra note 8.
11
See Neb. Rev. Stat. § 28-417 (Reissue 1964).
12
See id. (Cum. Supp. 1969).
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Legislature was motivated by a desire for vengeance,
a conclusion not permitted in view of modern theories
of penology.”13
So, we vacated the defendants’ life sentences and remanded the
cause for resentencing.
But later, we constricted the Randolph doctrine in a series
of cases involving changes to the rape and sexual assault
statutes.14 For example, in State v. Country,15 the defendant
pleaded no contest to forcible rape and the court sentenced
him to 10 to 30 years’ imprisonment. After the court sen-
tenced the defendant, L.B. 23 became effective and “redefined
most nonconsensual sexual crimes.”16 The maximum term of
imprisonment for any sexual assault under L.B. 23, § 3, was
25 years.
We identified several reasons why the Randolph doctrine
did not apply. First, L.B. 23 was “not merely an amendatory
act changing the penalty for a particular offense.”17 Instead, it
“define[d] new crimes.”18 L.B. 23 repealed several sections,
including those defining common-law and statutory rape,
rape against a sister or daughter, and assault with intent to
rape. In their place, it created two new crimes: sexual assault
in the first degree and sexual assault in the second degree.
Whether the victim suffered “serious personal injury” was
13
State v. Randolph, supra note 8, 186 Neb. at 302, 183 N.W.2d at 228,
quoting In re Estrada, 63 Cal. 2d 740, 408 P.2d 948, 48 Cal. Rptr. 172
(1965).
14
See, State v. Crisp, 195 Neb. 833, 241 N.W.2d 129 (1976); State v. Ashby,
194 Neb. 585, 234 N.W.2d 600 (1975); State v. Trowbridge, 194 Neb. 582,
234 N.W.2d 598 (1975); State v. Country, 194 Neb. 570, 234 N.W.2d 593
(1975), disapproved in part on other grounds, State v. Bunner, 234 Neb.
879, 453 N.W.2d 97 (1990).
15
State v. Country, supra note 14.
16
Id. at 571, 234 N.W.2d at 594, citing Neb. Laws 1975, L.B. 23.
17
Id. at 572, 234 N.W.2d at 594.
18
Id.
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relevant to the sentence for both degrees of sexual assault.19
Serious injury to the victim was not an element of the for-
mer statutes.
The record did not show if the defendant seriously injured
his victim, and we stated that a remand for an evidentiary hear-
ing was contrary to the Legislature’s intent:
Probably, this determination can be made only by means
of an evidentiary hearing unless serious personal injury
is admitted. The Legislature, when it enacted L.B. 23,
did not contemplate that cases pending on appeal would
require [an] evidentiary hearing to determine a new and
reduced penalty. Yet as a practical matter this is the only
way in which the Randolph doctrine could be made appli-
cable in the present and similar cases.20
Furthermore, L.B. 23’s “primary purpose” was not to miti-
gate the punishment for rape.21 Instead, the law was “proce-
dural and directed to protecting the dignity of the victim and
also to [e]nsure effective due process for the person charged.”22
Finally, the State had dismissed a habitual criminal charge
under a plea agreement. Applying L.B. 23 retroactively would
have been “unfair to the State by introducing after the fact an
element which it had no opportunity to consider when it made
the bargain.”23
The State compares this case to Country. It notes that
L.B. 998 does not just reduce the punishment, but also distin-
guishes between persons with and without a blood or breath
alcohol concentration of at least .02. In that sense, L.B. 998
“created a new category of crime.”24 The State claims that
it would be unfair to apply L.B. 998 retroactively because
19
See L.B. 23, § 4.
20
State v. Country, supra note 14, 194 Neb. at 573-74, 234 N.W.2d at 595.
21
Id. at 574, 234 N.W.2d at 595.
22
Id. See L.B. 23, § 1.
23
State v. Country, supra note 14, 194 Neb. at 575, 234 N.W.2d at 596.
24
Brief for appellee at 9.
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Duncan’s alcohol concentration was irrelevant when he com-
mitted the offense: “At the time the crime was committed, the
State had no incentive to investigate that issue (beyond ruling
out [driving under the influence]), to collect evidence of it, or
to include any such evidence in the factual basis.”25
Duncan, of course, disagrees. He argues that L.B. 998
did not “create a new crime.”26 Instead, he suggests that the
Legislature “essentially reclassified the offense as a misde-
meanor unless the person so charged had alcohol in his or her
system, in which case, the offense would be classified as a
felony.”27 Duncan contends that the State was on notice of the
amendment because the change took effect more than 6 months
before he pleaded no contest.
As Duncan points out, there are several differences between
this case and Country. In Country, the amendment took effect
after the State reached a plea agreement with the defend­
ant. In contrast, L.B. 998 became effective well before the
State agreed to dismiss the driving during revocation charge.
Moreover, the legislative history shows that L.B. 998’s main
purpose—at least before a welter of unrelated floor amend-
ments—was to reduce the punishment for driving without an
ignition interlock device.28
[4] But L.B. 998 did not merely reduce the penalty for driv-
ing without an ignition interlock device. It also introduced a
new substantive element: Whether the offender’s breath or
blood alcohol concentration was .02 or higher. The State had
no reason to gather such evidence when Duncan’s criminal
act occurred. Even if such evidence could still be adduced at
this point, an evidentiary hearing would be necessary. As we
explained in Country, we assume that the Legislature does not
25
Id. at 9-10.
26
Brief for appellant at 16.
27
Id.
28
See, Judiciary Committee Hearing, L.B. 998, 103d Leg., 2d Sess. 8 (Jan.
31, 2014); Floor Debate, 103d Leg., 2d Sess. 75, 76, 78 (Mar. 20, 2014).
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want us to apply mitigatory amendments to pending cases if
doing so would require a new evidentiary hearing.
Put simply, Duncan is not entitled to a lesser punishment
under L.B. 998, because it is not clear if he would, in fact,
be punished less severely under the law as amended. We do
not know what his offense would be under L.B. 998 because
the record lacks evidence of the alcohol concentration of his
breath or blood. And we will not remand the cause for an
evidentiary hearing to find out. So, the district court correctly
sentenced Duncan under the law in effect when the criminal
act occurred.
Excessive Sentence
Duncan argues that his sentence is excessive. He notes that
this is his first felony conviction, that he completed intensive
outpatient treatment in 2013, and that driving without an igni-
tion interlock device is a nonviolent crime. Duncan does not
argue that the court should have placed him on probation, but
he believes that a prison sentence is inappropriate.
[5] The principles of law governing the review of sen-
tences are so familiar that we need not repeat them here.29
An appellate court will not disturb a sentence imposed within
the statutory limits unless the trial court abused its discre-
tion.30 Duncan’s sentence is within the statutory limits for a
Class IV felony.31
The court stated that imprisonment was “necessary for the
protection of the public because the risk is substantial that,
during any period of probation, [Duncan] would engage in
additional criminal conduct and because a lesser sentence
would depreciate the seriousness of [Duncan’s] crimes and
promote disrespect for the law.” At the sentencing hearing, the
court told Duncan that “at some point you’ve got to treat these
things seriously.”
29
See State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
30
See id.
31
See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014).
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We conclude that Duncan’s sentence is not an abuse of dis-
cretion. His criminal history did not include any felonies, but
it was extensive. Duncan’s crimes include three convictions for
driving under the influence and four assault convictions. The
probation investigation assessed him as a “very high risk to
reoffend.” And a sentence of 1 to 2 years’ imprisonment was
considerably less than the maximum of 5 years’ imprisonment
for a Class IV felony.
CONCLUSION
Duncan seeks the benefit of a mitigatory amendment that
changed the substantive elements of the offense. The record
does not show what crime Duncan committed under the statute
as amended. So, he is not entitled to a more lenient sentence
under the new law. His sentence is not otherwise excessive.
A ffirmed.
Stacy, J., not participating.