State v. Sorenson

Irwin, Judge.

Kenneth G. Sorenson was charged in an amended information with a multitude of felonies. As the result of a plea agreement, he entered pleas of guilty to the charges contained in the amended information, reflected in the left-hand column below, and admitted being a habitual criminal, as reflected in the right-hand column below, at the same time that he entered his guilty pleas.

Count I

Count III

Count V

Count VII

Count IX

Count XI

• Burglary

■ First degree sexual assault

■ Use of a knife to commit a felony

First degree sexual assault

• Attempted first degree sexual assault

- Use of a firearm to commit a felony

Count II

Count IV

Count VI

Count VIII

Count X

Count XII

- Habitual criminal

- Habitual criminal

- Habitual criminal

- Habitual criminal

- Habitual criminal

- Habitual criminal

Because Sorenson was found to be a habitual criminal, the mandatory minimum prison term for each conviction was 10 years and the maximum possible sentence for each was 60 years. See Neb. Rev. Stat. § 29-2221 (Reissue 1989). Sorenson appeals the sentences imposed.

According to the trial court’s journal entry entitled “Judgment and Sentence,” Sorenson was sentenced to concurrent prison terms of 35 years on each of counts I, III, VII, and IX:

[I]t was the judgment and sentence of the court that defendant be imprisoned in an institution under the jurisdiction of the DEPARTMENT OF CORRECTIONAL SERVICES for a period of Thirty five (35) Years on Burglary, Count I; Thirty five (35) Years as to each Count, Sexual Assault-First Offense, Count III and First Degree Forcible Sexual Assault-First Offense, Count VII; Thirty five (35) Years on Attempted First Degree Sexual Assault, Count IX.

Counts I, III, VII and IX to be served concurrent.

The journal entry indicates that Sorenson was sentenced to serve a 15-year prison term on count XI, to be served consecutively to the concurrent 35-year prison terms. The journal entry also indicates that Sorenson was sentenced to serve a 15-year prison term on count V, to be served consecutively to the 15-year prison term on count XI.

Sorenson argues that the trial judge erred in entering the sentences described above because the judge had pronounced in court what Sorenson contends is a different sentence. In support of his argument, Sorenson directs us to the following colloquy which occurred during the sentencing hearing:

[The court:] So it will be the sentence of the Court on the four charges: the burglary, the first degree sexual assaults and the attempted sexual assaults, you do 35 years at the Department of Corrections. On each of the two uses, 15 years, consecutive to the four charges, be a total of 50 (sic) years. Credit for 334 days.

[State]: Do you have to give a top number at all then?

THE COURT: No, just 35 plus 15.

[Defense]: Thank you.

(Off-the-record discussion held between the Court, Counsel and the Probation Office.)

[Probation officer]: It would be 35, plus 15, plus 15, be 65.

THE COURT: Yeah. He has to serve the four 35’s before he can serve the 15’s.

Except for the identities of the speakers, we have set out the colloquy exactly as it appears in the record. The “(sic)” following the number “50” was apparently inserted by the court reporter who prepared the bill of exceptions.

Sorenson argues that the sentence pronounced in court consisted of two groups of concurrent sentences. There is no doubt that Sorenson must first serve the concurrent 35-year prison terms and that the 15-year terms for use of weapons are to be served consecutively to the 35-year terms for the underlying felonies. Citing the trial judge’s reference to a total prison term of 50 years, Sorenson argues that according to the sentence pronounced in court, the 15-year terms are to be served concurrently with each other. Sorenson argues that because a sentence validly imposed takes effect from the time it is pronounced and a subsequent sentence fixing a different term is a nullity, State v. Snider, 197 Neb. 317, 248 N.W.2d 342 (1977) (ioverruled on other grounds, State v. Cousins, 208 Neb. 245, 302 N.W.2d 731 (1981)), the sentence entered in the journal of the trial court calling for the 15-year terms to be served consecutively to each other is a nullity.

The State relies on State v. Foster, 239 Neb. 598, 605, 476 N.W.2d 923, 927 (1991), in which the court stated: “[T]hat a sentence validly imposed takes effect from the time it is pronounced and a subsequent sentence fixing a different term is a nullity does not mean that a judge may never correct an inadvertent mispronouncement of a sentence.”

In Foster, the trial judge sentenced the defendant on two convictions, one a felony and the other a misdemeanor. The judge sentenced the defendant to a prison term of 1 year for the felony. For the misdemeanor, the defendant was sentenced to a prison term of 18 months to 5 years. After pronouncing the sentences, the judge asked the prosecutor if anything had been overlooked. The prosecutor suggested to the judge that the sentences were “turned around.” Id. at 599,476 N.W.2d at 924. The judge acknowledged the mistake and announced that the longer prison term was the sentence for the felony, while the shorter prison term was the sentence for the misdemeanor. The Nebraska Supreme Court upheld the corrected sentences, stating:

The facts make it clear that [the trial judge] misspoke and did not intend in this case the sentence he first pronounced.

... A judgment is rendered when it is both pronounced and some written notation of it is made and filed in the records of the court. [Citations omitted.] [The defendant] has failed to establish that the sentence first pronounced by [the trial judge] in this case was ever “rendered,” for there is no showing that any written notation of it was made in the records of the court.

Id. at 604-05, 476 N.W.2d at 927.

The Foster case establishes the solution to an inadvertently pronounced sentence. However, a different framework is necessary for resolving situations such as the one before us, wherein the oral pronouncement of a sentence itself is ambiguous. Other jurisdictions facing this issue have held that an appellate court can and should look to the written notation of the judgment to resolve the ambiguity in the orally pronounced sentence. See, Christensen v. State, 854 P.2d 675 (Wyo. 1993) (holding that a written judgment and sentence order may be used to clarify an ambiguous oral sentence) (citing U.S. v. Earley, 816 F.2d 1428 (10th Cir. 1987)); Marshall v. State, 621 N.E.2d 308 (Ind. 1993) (holding that a written judgment and the commitment order is evidence which may be used to determine what sentence was intended where the oral sentence is ambiguous); David v. U.S., 579 A.2d 1172 (D.C. App. 1990) (holding that a written sentence would be referred to in order to resolve the ambiguities in the oral pronouncement); State v. Munk, 453 N.W.2d 124 (S.D. 1990) (holding that a written judgment may be relied upon to clarify an ambiguous oral sentence); State v. Brown, 150 Wis. 2d 636, 443 N.W.2d 19 (1989) (holding that when there is an ambiguity in the oral sentencing, as opposed to a conflict between the oral pronouncement and the written judgment, it is proper to look to the written judgment to ascertain the trial court’s intention) (citing United States v. Purcell, 715 F.2d 561 (11th Cir. 1983)); State v. Cady, 422 N.W.2d 828 (S.D. 1988) (concluding that a trial court’s sentence need not be set aside or remanded for resentencing where the written judgment clarified the ambiguous oral pronouncements); Davis v. United States, 397 A.2d 951 (D.C. App. 1979) (holding that a written sentence should be referred to in order to resolve the ambiguities in the oral pronouncement) (citing Green v. United States, 447 F.2d 987 (9th Cir. 1971), cert. denied 405 U.S. 976, 92 S. Ct. 1201, 31 L. Ed. 2d 250 (1972)). See, also, People v. Horobecki, 48 Ill. App. 3d 598, 363 N.E.2d 1 (1977) (stating that a remand for resentencing is not required where a review of the record clarifies an ambiguous oral pronouncement). Federal courts have uniformly held that when an orally pronounced sentence is ambiguous, the written judgment may be relied upon to clarify the ambiguity. Cady, supra. Accord United States v. Moyles, 724 F.2d 29 (2d Cir. 1983). See, also, U.S. v. Daddino, 5 F.3d 262 (7th Cir. 1993); U.S. v. Khoury, 901 F.2d 975 (11th Cir. 1990); U.S. v. Villano, 816 F.2d 1448 (10th Cir. 1987); Green v. United States, supra; Chapman v. United States, 289 F.2d 539 (5th Cir. 1961).

In Villano, supra, the 10th Circuit observed that an ambiguity may take many forms and stated:

The following include some of the circumstances when an ambiguity may exist:

(1) when the words used have more than one meaning;

(2) when otherwise unambiguous words are used in an unusual way;

(3) the extent of the sentence cannot be ascertained from the language used; or

(4) the plain meaning of the words used lead to an irrational or absurd result.

816F.2dat 1453 n.6.

In the present case, some might conclude, as apparently the court reporter did, that the judge initially miscalculated the total number of years to be served. These persons would note that the probation officer brought this miscalculation to the court’s attention, as is evidenced by his statement in the record. The court’s response to the probation officer’s statement could be viewed as a correction of that miscalculation.

However, others could conclude that after the prompting from the probation officer, the court’s pronouncement was still ambiguous regarding the 15-year terms because the court never stated that the two 15-year sentences would be served consecutive to each other as well as to the predicate charges. The Nebraska Supreme Court has held that in imposing a sentence, the court should state with care the precise terms and the sentence which is imposed. State v. Temple, 230 Neb. 624, 432 N.W.2d 818 (1988). It would seem less than arguable to conclude that the court’s oral pronouncements of July 29,1993, were ambiguous. However, the written notation of judgment is unambiguous:

Thereupon, it was the judgment and sentence of the court that defendant be imprisoned in an institution under the jurisdiction of the DEPARTMENT OF CORRECTIONAL SERVICES for a period of Fifteen (15) Years on Use of Firearm to Commit Felony, Count XI. Served consecutive to Counts I, III, VII and IX. Fifteen (15) Years on Use of Knife to Commit Felony, Count V, served consecutive to Count XI, at hard labor, no part of which shall be in solitary confinement, and judgment rendered against the defendant for the costs of prosecution.

The written judgment clearly shows that the trial judge intended the weapons charges to be served consecutively to each other.

We conclude that the trial court’s sentence need not be set aside or remanded for resentencing because the written judgment makes the oral pronouncement clear, i.e., the sentences on the weapons charges are consecutive to each other as well as to the underlying predicate offenses. Again, this framework is used only when the oral pronouncement is ambiguous. It is not applicable when an unambiguous oral pronouncement conflicts with the written judgment, when an oral pronouncement is inadvertent yet unambiguous, or when the oral pronouncement is silent as to whether multiple sentences are to run consecutively or concurrently.

The judgment of the district court is affirmed.

Affirmed.