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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE V. ROTH

Cite as 311 Neb. 1007

State of Nebraska, appellee, v. 

Derek J. Roth, appellant.

___ N.W.2d ___

Filed July 15, 2022. No. S-21-792.

1. Sentences: Appeal and Error. When sentences imposed within statutory limits are alleged on appeal to be excessive, the appellate court 

must determine whether the sentencing court abused its discretion in 

considering well‐established factors and any applicable legal principles.

2. Judges: Words and Phrases. A judicial abuse of discretion exists only 

when a trial court’s decision is based upon reasons that are untenable 

or unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence.

3. Appeal and Error. Consideration of plain error occurs at the discretion 

of an appellate court.

4. ____. Plain error may be found on appeal when an error unasserted or 

uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would 

result in damage to the integrity, reputation, and fairness of the judicial process.

5. Sentences. In imposing a sentence, a sentencing judge should consider 

the defendant’s (1) age, (2) mentality, (3) education and experience, (4) 

social and cultural background, (5) past criminal record or record of 

law‐abiding conduct, and (6) motivation for the offense, as well as (7) 

the nature of the offense, and (8) the amount of violence involved in the 

commission of the crime.

6. ____. The sentencing court is not limited to any mathematically applied 

set of factors, but the appropriateness of the sentence is necessarily a 

subjective judgment that includes the sentencing judge’s observations 

of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life.

7. Sentences: Appeal and Error. A sentence that is contrary to the court’s 

statutory authority is an appropriate matter for plain error review.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/26/2022 12:07 PM CDT
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Cite as 311 Neb. 1007

8. Sentences. A sentence is illegal when it is not authorized by the judgment of conviction or when it is greater or less than the permissible 

statutory penalty for the crime.

9. Sentences: Appeal and Error. An appellate court has the power on 

direct appeal to remand a cause for the imposition of a lawful sentence 

where an erroneous one has been pronounced.

10. Sentences: Probation and Parole. Post‐release supervision is a form 

of probation.

11. Statutes: Legislature: Intent. In discerning the meaning of 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, it being a court’s duty 

to discover, if possible, the Legislature’s intent from the language of the 

statute itself.

12. ____: ____: ____. 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.

13. Words and Phrases. As a general rule, the use of the word “shall” is 

considered to indicate a mandatory directive, inconsistent with the idea 

of discretion.

14. Sentences: Appeal and Error. The statutory provisions of Neb. Rev. 

Stat. §§ 29‐2204.02 and 28‐105 (Reissue 2016) relating to post‐release 

supervision are mandatory, and a sentence that fails to impose 

post‐release supervision when required is an appropriate matter for an 

appellate court’s discretionary plain error review.

15. Sentences. The trial court’s discretion to direct that sentences be served 

either concurrently or consecutively applies equally to terms of imprisonment and terms of post‐release supervision.

Appeal from the District Court for Dodge County: Geoffrey 

C. Hall, Judge. Vacated and remanded with directions.

Daniel S. Reeker, of Kendall, Crawford & Reeker, P.C., 

L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.
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STATE V. ROTH

Cite as 311 Neb. 1007

Freudenberg, J.

INTRODUCTION

Following convictions of two counts of possession of a 

deadly weapon (not a firearm) by a prohibited person and 

one count of third degree domestic assault, the defendant was 

sentenced to 30 months’ probation. His probation was later 

revoked, and he was sentenced to 3 years’ imprisonment. In a 

direct appeal following the probation revocation, the defendant 

argues his total sentence of imprisonment was excessive. The 

State argues the district court plainly erred in failing to impose 

mandatory post‐release supervision as part of the total sentence 

of imprisonment.

BACKGROUND

Derek J. Roth was originally charged in Dodge County with 

possession of a firearm by a prohibited person, a Class ID felony, in violation of Neb. Rev. Stat. § 28‐1206(1)(a) and (3)(b) 

(Supp. 2017); two counts of possession of a deadly weapon 

(not a firearm) by a prohibited person, both Class III felonies, 

in violation of § 28‐1206(1)(a) and (3)(a); third degree domestic assault, a Class I misdemeanor, in violation of Neb. Rev. 

Stat. § 28‐323(1)(a) (Reissue 2016); three counts of carrying 

a concealed weapon, all Class I misdemeanors, in violation of 

Neb. Rev. Stat. § 28‐1202 (Reissue 2016); and violation of a 

protection order, a Class I misdemeanor, in violation of Neb. 

Rev. Stat. § 42‐924 (Cum. Supp. 2018).

Pursuant to a plea agreement, Roth pled no contest to two 

counts of possession of a deadly weapon (not a firearm) by 

a prohibited person, both Class III felonies, and third degree 

domestic assault, a Class I misdemeanor.

The presentence investigation report (PSI) prepared for sentencing set forth the circumstances that led to Roth’s original 

charges. On January 7, 2018, a Fremont, Nebraska, police 

officer was dispatched to a hotel in reference to a woman who 

called the 911 emergency dispatch service to report that she 

had been assaulted. The victim told the officer that she had 

been working concessions at a basketball game when Roth 
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arrived and wanted her to leave. The victim willingly left 

with him. She stated that she thought “things would be okay,” 

since she had a protection order against Roth out of Lancaster 

County.

They bought alcohol and went to a hotel room. The victim 

told the officer that Roth began accusing her of having relationships with others and that they got into an argument. Roth 

told the victim she was being too loud and then grabbed her 

face with his hands in an attempt to keep her quiet.

The victim reported she left the room and ran to the lobby, 

where she called the police. Roth came to the lobby and 

attempted to get her to leave with him in his vehicle. The 

victim stated she did not go with him because she was afraid. 

The victim reported that she knew he usually carried a firearm 

with him.

Upon arrival, the police observed the injuries to the victim’s 

face. There was swelling under both eyes and on her cheek. 

The victim also showed the officer defensive bruising on both 

her forearms, which she advised was from the day before. The 

victim told the officer that there was a history of domestic 

violence between her and Roth, which has resulted in approximately 16 calls to the Lincoln, Nebraska, Police Department.

Roth was observed leaving the hotel parking lot in a vehicle 

as officers arrived. Roth was ultimately stopped. A search of 

his vehicle revealed a set of brass knuckles, a serrated Buck 

knife, and a handgun.

Roth reported that he and the victim fought “‘a lot’” and 

that the police were called on several occasions. During one 

such altercation, Roth indicated that the victim stabbed him 

as evidenced by the scars on his arms. Roth reported that he 

felt anger, embarrassment, and disappointment when he thinks 

about this offense because he “‘knew it was bound to happen 

and was mad that [he] went around her again.’” He denied any 

domestic violence in other relationships he has had.

In the “LS/CMI” assessment, the PSI indicated that Roth is 

considered to be a high risk for reoffending. Roth scored in 
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the very high risk range in the alcohol/drug problems category 

and in the high risk range in the family/marital and companions 

categories. Roth scored in the medium risk range in the criminal history and antisocial pattern categories, low risk range in 

the procriminal attitude/orientation and education/employment 

categories, and very low risk range in the leisure/recreation 

category.

The probation officer stated that although Roth expressed a 

willingness to change, he had a history of domestic violence, 

he had a history of not abiding by the terms of the protection 

order, and he minimized the seriousness of the offenses. The 

officer noted that Roth was willing to participate in probation and that he had never been on a term of probation in the 

past; however, the probation officer noted that the assessment 

suggested there is a high risk to the community for continued 

victimization.

Roth was sentenced to a 30‐month term of intensive supervised probation on each of the three counts of the amended 

information, with the terms ordered to run concurrently. 

Conditions of Roth’s probation included the requirement that 

Roth not violate the law.

During Roth’s term of probation, he received numerous 

administrative sanctions, as well as two custodial sanctions for 

failing to comply with his order regarding alcohol/drug testing 

and consuming alcohol. Ultimately, the State filed a motion to 

revoke Roth’s probation, alleging Roth violated the terms of 

his probation by violating the law. Roth had been arrested in 

Lancaster County, Nebraska, and was accused of committing 

the offenses of terroristic threats, use of a weapon to commit a 

felony, domestic assault, and criminal mischief. The probation 

officer stated that the alleged victim of these new charges was 

the same victim in the present matter. The victim disclosed to 

the police that Roth assaults her and threatens to kill her on a 

regular basis.

Later, the State amended the motion to revoke probation to add allegations due to Roth’s again being arrested in 
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Cite as 311 Neb. 1007

Lancaster County for assault. At the arraignment hearing on 

the State’s amended motion to revoke probation, upon Roth’s 

admission, the court found him guilty of violating his probation order, directed the PSI be updated, and scheduled the 

matter for resentencing after the conclusion of his Lancaster 

County matters.

At sentencing, the court indicated that it had reviewed and 

considered the updated PSI which consisted of Roth’s original 

PSI with an added cover letter that outlined the sanctions and 

charges that had occurred between the date the alleged probation violation was filed and the date on the cover letter. The 

cover letter pointed out the charges in Lancaster County that 

triggered the motion to revoke probation and the multiple 

sanctions he received. The letter also indicated that Roth had 

been deceitful about his residence by stating he had been living with his mother when he was actually living with the 

victim. Finally, the probation officer pointed out that Roth 

completed a domestic violence class in August 2020 and had 

maintained employment since the most recent administrative 

sanction, but his updated assessments showed very high scores 

in the procriminal attitude, antisocial patterns, and companions categories.

During his sentencing presentation, Roth’s counsel informed 

the court that Roth had entered a plea agreement in the related 

Lancaster County case where he pled to two reduced charges of 

third degree domestic assault, both Class I misdemeanors, and 

was sentenced to 200 days in county jail.

The State asserted that Roth was already a high risk to 

reoffend when he was placed on probation and had minimized 

the seriousness of his actions. The State pointed out that Roth 

had been given an opportunity to have probation and that he 

reoffended against the same victim. Further, the State argued 

that the updated PSI scored Roth in the very high risk range in 

several categories. The State concluded that “due to the seriousness of this matter and this offender continues to re‐offend 

again[st] the same victim . . . the State believes a term 
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of incarceration is necessary.” The State asked the court to 

impose terms of imprisonment for each of the offenses, which 

could all run concurrent to one another but consecutive to the 

sentence imposed in the related Lancaster County matter.

Roth’s counsel asked the court to simply terminate Roth’s 

probation “unsatisfactorily” and allow him to be “essentially 

done with his case.” It was pointed out that the violation of 

probation was 18 months prior with no additional violations 

since that time and that due to COVID‐19, Roth’s term of 

probation had been extended by 4 months beyond the original 

term. Defense counsel asserted Roth had successfully completed all the classes ordered during his time on probation. 

Defense counsel requested that if the court were to terminate 

probation and place Roth in a period of incarceration, the court 

impose a minimal time and allow it to run concurrent with the 

Lancaster County case he was currently serving. Roth told the 

court, “I’m just working toward[] bettering myself. And I want 

to get out, and see my nephew, and see my family, and learn 

my lesson, and keep doing what I have to do.”

The court stated that Roth was given the privilege of probation and the opportunity to show he would abide by the law 

and “not, I repeat, not inflict further violence on women, this 

victim, or anyone else.” He failed to do so, and “there is no 

excuse or justification for that.” The court revoked Roth’s probation and sentenced him to 3 years’ imprisonment on counts 

I and II and 1 year’s imprisonment on count III. The sentences 

were ordered to run concurrent with one another but consecutive with the sentence imposed in Lancaster County.

The court did not impose post‐release supervision. It reasoned, “I will order no Post‐Release Supervision at the end of 

your prison term, in that I do not feel it’d be a benefit to you or 

society, and it would be a waste of precious State resources.”

ASSIGNMENT OF ERROR

Roth assigns, reworded, that the district court abused its 

discretion when it imposed excessive sentences when it resentenced him following his probation revocation.
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STANDARD OF REVIEW

[1,2] When sentences imposed within statutory limits are 

alleged on appeal to be excessive, the appellate court must 

determine whether the sentencing court abused its discretion in 

considering well‐established factors and any applicable legal 

principles. 1 A judicial abuse of discretion exists only when a 

trial court’s decision is based upon reasons that are untenable 

or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. 2

[3,4] Consideration of plain error occurs at the discretion of 

an appellate court. 3 Plain error may be found on appeal when 

an error unasserted or uncomplained of at trial, but plainly 

evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the 

integrity, reputation, and fairness of the judicial process. 4

ANALYSIS

Excessive Sentences

Roth argues that the total sentence of 3 years’ imprisonment after his probation was revoked is excessive because it 

“dramatically disproportionately punishes him.” 5 Roth argues 

that the court ignored a number of mitigating factors, such 

as how long he had been successful on probation, his ability 

to complete the terms of his probation, and the fact that he 

was not ultimately convicted of felonies in Lancaster County 

District Court case No. CR20‐575. Further, Roth asserts the 

court questioned his motivations when there was no evidence 

presented by the State about the nature of any violence against 

any woman other than the charges themselves “and the conduct 

that can result in a domestic violence conviction can range 

1 State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).

2 Id.

3 State v. Kipple, 310 Neb. 654, 968 N.W.2d 613 (2022).

4 Id.

5 Brief for appellant at 8.
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from minimal to extreme.” 6 Finally, Roth asserts that the court 

seemed to completely ignore that he completed 34 months of 

probation due to the time this case took, which was 4 months 

more than was originally ordered.

Roth’s original conviction for possession of a deadly weapon 

(not a firearm) by a prohibited person is a Class III felony and 

punishable by a maximum term of 4 years’ imprisonment. 7

Roth’s original conviction for third degree domestic assault is 

a Class I misdemeanor and punishable by a maximum term of 

not more than 1 year’s imprisonment. 8 Roth was sentenced to 

3 years’ imprisonment on each of the possession of a deadly 

weapon (not a firearm) by a prohibited person convictions and 

1 year’s imprisonment for the third degree domestic assault 

conviction. When sentences imposed within statutory limits 

are alleged on appeal to be excessive, the appellate court must 

determine whether the sentencing court abused its discretion in 

considering well‐established factors and any applicable legal 

principles. 9 A judicial abuse of discretion exists only when a 

trial court’s decision is based upon reasons that are untenable 

or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. 10

[5,6] When imposing a sentence, a sentencing judge should 

consider the defendant’s (1) age, (2) mentality, (3) education 

and experience, (4) social and cultural background, (5) past 

criminal record or record of law‐abiding conduct, and (6) 

motivation for the offense, as well as (7) the nature of the 

offense, and (8) the amount of violence involved in the commission of the crime. 11 The sentencing court is not limited to 

6 Id. at 9.

7 Neb. Rev. Stat. § 28‐105 (Reissue 2016) and § 28‐1206(3)(a).

8 Neb. Rev. Stat. § 28‐106 (Reissue 2016) and § 28‐323.

9 State v. Blake, supra note 1; State v. Greer, 309 Neb. 667, 962 N.W.2d 217 

(2021).

10 See id.

11 Id.
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any mathematically applied set of factors, but the appropriateness of the sentence is necessarily a subjective judgment that 

includes the sentencing judge’s observations of the defendant’s 

demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. 12

Roth was 23 years old at the time of his original sentencing 

and 26 years old at the time of resentencing. Roth has a criminal history of two convictions of minor in possession, possession of marijuana, possession of drug paraphernalia, and two 

protection order violations, serving 10 days in jail in 2018 for 

such violations. Roth has a history of drug and alcohol use dating back to age 14, and Roth reported that his “‘anger’ comes 

out” when he drinks. Roth has a volatile history of domestic 

violence situations with the victim involved in this case, resulting in injuries to both of them in the past and multiple phone 

calls to the police. Roth’s assessments indicated that Roth was 

considered to be in the high risk range for reoffending, and the 

probation office noted that the assessment suggested there was 

a high risk to the community for continued victimization.

While the probation office originally recommended probation due to Roth’s stage of change and stated willingness to 

participate in probation, this confidence was shown to be misplaced. Roth violated the terms of his probation multiple times, 

including reoffending against the same victim, leading to new 

felony charges.

The district court recognized the appropriate factors when 

imposing Roth’s sentences, and nothing in the record indicates that the court considered anything inappropriate. The 

sentences reflect the seriousness of the crimes committed, 

Roth’s prior probation violations that required administrative 

and custodial sanctions, and Roth’s volatile history with the 

victim. Considering the totality of the circumstances, we cannot say that the district court’s sentences were untenable. We 

find the district court did not abuse its discretion in imposing 

12 Id.
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a total sentence of 3 years’ imprisonment to run consecutive 

to other sentences Roth was currently serving at the time of 

resentencing.

Post‐Release Supervision

The State argues the court committed plain error by failing 

to impose post‐release supervision as part of Roth’s total sentence. We agree.

Plain error may be found on appeal when an error unasserted 

or uncomplained of at trial, but plainly evident from the record, 

prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and 

fairness of the judicial process. 13 Consideration of plain error 

occurs at the discretion of an appellate court. 14

[7‐9] A sentence that is contrary to the court’s statutory 

authority is an appropriate matter for plain error review. 15 The 

power to define criminal conduct and fix its punishment is 

vested in the legislative branch, whereas the imposition of a 

sentence within these legislative limits is a judicial function. 16

Accordingly, a sentence is illegal when it is not authorized by 

the judgment of conviction or when it is greater or less than the 

permissible statutory penalty for the crime. 17 And an appellate 

court has the power on direct appeal to remand a cause for the 

imposition of a lawful sentence where an erroneous one has 

been pronounced. 18

[10] Post‐release supervision is a form of probation. 19

Post‐release supervision is defined by statute as “the portion 

13 State v. Kipple, supra note 3.

14 State v. Britt, 283 Neb. 600, 813 N.W.2d 434 (2012); State v. Young, 279 

Neb. 602, 780 N.W.2d 28 (2010).

15 State v. Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020).

16 State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).

17 State v. Galvan, supra note 15.

18 See State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).

19 State v. Galvan, supra note 15.
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of a split sentence following 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].” 20

Primarily at issue with respect to the State’s argument of 

plain error is Neb. Rev. Stat. § 29‐2204.02 (Reissue 2016), 

subsections (1) and (4), and § 28‐105.

The relevant sections of § 29‐2204.02 state:

(1) Except when a term of probation is required by law 

as provided in subsection (2) of this section or except 

as otherwise provided in subsection (4) of this section, 

in imposing a sentence upon an offender for a Class III, 

IIIA, or IV felony, the court shall:

(a) Impose a determinate sentence of imprisonment 

within the applicable range in section 28‐105; and

(b) Impose a sentence of post‐release supervision, under 

the jurisdiction of the Office of Probation Administration, 

within the applicable range in section 28‐105.

. . . .

(4) For any sentence of imprisonment for a Class III, 

IIIA, or IV felony for an offense committed on or after 

August 30, 2015, imposed consecutively or concurrently 

with (a) a sentence for a Class III, IIIA, or IV felony for 

an offense committed prior to August 30, 2015, or (b) a 

sentence of imprisonment for a Class I, IA, IB, IC, ID, 

II, or IIA felony, the court shall impose an indeterminate 

sentence within the applicable range in section 28‐105 

that does not include a period of post‐release supervision, in accordance with the process set forth in section 

29‐2204.

Section 28‐105(1) provides that the minimum sentence 

following a conviction for Class III or IIIA felonies is “none for 

imprisonment and nine months post‐release supervision if 

20 Neb. Rev. Stat. § 29‐2246(13) (Reissue 2016).
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imprisonment is imposed.” It further provides that the maximum post‐release supervision for Class III and IIIA felonies is 

2 years and 18 months, respectively. Pursuant to § 28‐105(1), 

a sentence of post‐release supervision for a Class IV felony is 

a maximum of 12 months, but there is no minimum term of 

post‐release supervision for a Class IV felony.

Subsections (6) and (7) of § 28‐105 provide that certain 

listed felonies when sentenced concurrently or consecutively 

to other listed felonies “shall not be subject to post‐release 

supervision”:

(6) Any person who is sentenced to imprisonment for 

a Class I, IA, IB, IC, ID, II, or IIA felony and sentenced 

concurrently or consecutively to imprisonment for a Class 

III, IIIA, or IV felony shall not be subject to post‐release 

supervision pursuant to subsection (1) of this section.

(7) Any person who is sentenced to imprisonment for 

a Class III, IIIA, or IV felony committed prior to August 

30, 2015, and sentenced concurrently or consecutively 

to imprisonment for a Class III, IIIA, or IV felony committed on or after August 30, 2015, shall not be subject 

to post‐release supervision pursuant to subsection (1) of 

this section.

(8) The changes made to the penalties for Class III, 

IIIA, and IV felonies by Laws 2015, LB 605, do not apply 

to any offense committed prior to August 30, 2015, as 

provided in section 28‐116.

[11,12] In discerning the meaning of a statute, we 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, 

it being our duty to discover, if possible, the Legislature’s 

intent from the language of the statute itself. 21 Components 

of a series or collection of statutes pertaining to a certain 

21 State v. Hofmann, 310 Neb. 609, 967 N.W.2d 435 (2021).
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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. 22

Section 29‐2204.02(1) plainly states that “except as otherwise provided in subsection (4) of this section,” in imposing a sentence for a Class III, IIIA, or IV felony, the court 

“shall . . . [i]mpose a sentence of post‐release supervision . . . 

within the applicable range in section 28‐105.” Subsection 

(4), in turn, plainly states that for an offense committed on 

or after August 30, 2015, the court “shall impose an indeterminate sentence . . . that does not include a period of 

post‐release supervision” for any sentence of imprisonment 

for a Class III, IIIA, or IV felony that is imposed consecutively or concurrently with a sentence for a Class III, IIIA, 

or IV felony for an offense committed before August 30, 

2015, or that is imposed consecutively or concurrently with 

“a sentence of imprisonment” for a Class I, IA, IB, IC, ID, 

II, or IIA felony. 23 Subsections (6) and (7) of § 28‐105 are 

worded similarly, although subsection (6) begins with being 

sentenced to imprisonment for a Class I, IA, IB, IC, ID, II, 

or IIA felony and sentenced concurrently or consecutively to 

imprisonment for a Class III, IIIA, or IV felony, rather than 

the other way around.

[13,14] As a general rule, the use of the word “shall” is considered to indicate a mandatory directive, inconsistent with the 

idea of discretion. 24 The statutory provisions of §§ 29‐2204.02 

and 28‐105 relating to post‐release supervision are mandatory, 

and a sentence that fails to impose post‐release supervision 

when required is an appropriate matter for our discretionary 

plain error review.

22 See id.

23 § 29‐2203.02.

24 Flores v. Flores‐Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).
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The Nebraska Court of Appeals in State v. Lillard 25 explained 

that the mandatory language of § 29‐2204.02 is broadly worded 

and not limited to multiple sentences imposed at the same 

time. Rather, it also applies to preexisting sentences still being 

served when a sentence of imprisonment for a Class III, IIIA, 

or IV felony for an offense committed on or after August 

30, 2015, is imposed. In so reading the statute, the Court of 

Appeals was also guided by Neb. Rev. Stat. § 83‐1,135.02(3) 

(Cum. Supp. 2016), which provides that § 29‐2204.02 applies 

to all committed offenders under sentence, on parole, or on 

probation on or after April 20, 2016, and to all persons sentenced on and after such date.

The defendant in Lillard had been simultaneously sentenced 

to 2 years’ imprisonment for a Class IV felony committed in 

2018 and 3 years’ imprisonment plus 18 months’ post‐release 

supervision for a Class IIIA felony committed in 2018, to be 

served concurrently, and the court found that he was convicted of multiple felonies before 2015 that would fall under 

either § 28‐105(6) or § 28‐105(7), as well as the provisions of 

§ 29‐2204.02(4). The court agreed with the defendant and the 

State that both the imposition of post‐release supervision and 

the fact that the sentences were determinate were unauthorized 

and invalid. The sentencing court had also erred by failing to 

address whether the sentences it imposed were to be served 

concurrently or consecutively with the pre‐2015 felonies. The 

Court of Appeals vacated the sentences and remanded the 

cause for resentencing.

Similarly, with respect to the indeterminacy requirement of 

§ 29‐2204.02(4), we recently held in State v. Starks, “[I]t matters not when the underlying offenses occurred in relation to 

each other or that some of the relevant charges were brought 

via different charging documents.” 26 Rather:

25 State v. Lillard, 27 Neb. App. 824, 937 N.W.2d 1 (2019).

26 State v. Starks, 308 Neb. 527, 536, 955 N.W.2d 313, 321 (2021).
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Section 29‐2204.02(4) is broad enough that it theoretically could be read to impose an indeterminacy requirement upon a Class III, Class IIIA, or Class IV felony 

sentence imposed consecutively or concurrently with a 

Class I, IA, IB, IC, ID, II, or IIA felony sentence that is 

already in progress. What matters under § 29‐2204.02(4) 

is that the sentences for those offenses are “imposed consecutively or concurrently” to each other. 27

In Starks, the defendant was previously convicted and sentenced 

to probation which, after violations of probation, resulted in a 

reinstatement of a Class IV felony charge. The violations of 

probation included three Class IV felonies and one Class IIA 

felony, to which he pled guilty. The court ordered an indeterminate sentence of incarceration for the Class IIA felony 

conviction but a determinate sentence for each Class IV felony 

conviction. All convictions were ordered to run consecutively. 

We found the determinate sentences to be plain error, vacated 

those sentences, and remanded the cause for resentencing.

While the offenses in Lillard 28 and Starks 29 occurred in 

the same county, there is no reason why the same reasoning 

would not apply to multiple sentences in different counties. 

Neither party asserts that the fact that the sentences here at 

issue occurred in different counties is legally relevant to the 

application of § 29‐2204.02(4). As we noted in Starks, the 

language of § 29‐2204.02(4) is broad. “What matters under 

§ 29‐2204.02(4) is that the sentences for those offenses are 

‘imposed consecutively or concurrently’ to each other.” 30 The 

same can be said of § 28‐105(6).

Thus, as relevant here, for offenses committed on or after 

August 30, 2015 (as to all committed offenders under sentence, 

27 Id.

28 State v. Lillard, supra note 25.

29 State v. Starks, supra note 26.

30 Id. at 536, 955 N.W.2d at 321.
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on parole, or on probation on or after April 20, 2016, and to 

all persons sentenced on and after such date), 31 the court has 

the mandatory directive to impose a minimum of 9 months’ 

post‐release supervision when sentencing the defendant to 

a term of imprisonment for a Class III or Class IIIA felony, 

except when the term of imprisonment for the Class III or 

Class IIIA felony is imposed consecutively or concurrently 

with a sentence of imprisonment for a Class I, IA, IB, IC, 

ID, II, or IIA felony (or with a sentence for a Class III, IIIA, 

or IV felony for an offense committed prior to August 30, 

2015), in which case the court has a mandatory directive not to 

impose post‐release supervision. Roth was sentenced to periods of incarceration for two Class III felonies and one Class I 

misdemeanor. The sentences were ordered to be served consecutively to the sentences in Lancaster County District Court 

case No. CR 20‐575. As discussed, under § 29‐2204.02(1)(b), 

except as otherwise provided in subsection (4), in imposing a 

sentence upon an offender for a Class III, IIIA, or IV felony, 

the court “shall” impose a sentence of post‐release supervision 

within the applicable range in § 28‐105. Under § 28‐105(1) the 

minimum sentence following a conviction for Class III or IIIA 

felonies is “nine months post‐release supervision if imprisonment is imposed.”

It is accordingly plainly evident from the record that Roth’s 

sentences fall under §§ 29‐2204.02(1)(b) and 28‐105(1), and 

nothing in the record suggests that the exceptions to these 

mandates of post‐release supervision apply to Roth’s sentences. 

We remind district courts that, as suggested by Justice Cassel 

in his concurrence in Starks, “[a] sentencing court should 

craft its judgment in each case with some thought regarding how that judgment, viewed in isolation, might appear to 

an appellate court.” 32 This may sometimes require that the 

31 § 83‐1,135.02.

32 State v. Starks, supra note 26, 308 Neb. at 537, 955 N.W.2d at 321 

(Cassel, J., concurring).
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record demonstrate more than just “the sentence(s) imposed 

in that case,” 33 because we will not find plain error on appeal 

unless it is reasonably certain we have the “whole picture.” 34

However, we are satisfied in this case that we have the whole 

picture. The parties agree that the sentences under Lancaster 

County District Court case No. CR 20‐575 were for Class I 

misdemeanors. Class I misdemeanors do not trigger any exception to the mandate of post‐release supervision set forth in 

§§ 29‐2204.02(1)(b) and 28‐105(1).

The district court committed plain error in failing to follow the statutory requirements of §§ 29‐2204.02 and 28‐105 

of a minimum period of 9 months’ post‐release supervision 

for the Class III felonies for which periods of incarceration 

were imposed. These provisions are mandatory. The court did 

not have the discretion to ignore these mandates, whatever its 

opinion concerning the value of such supervision for this particular defendant.

[15] Section 29‐2204.02(7)(b) states that “[i]f a period of 

post‐release supervision is required but not imposed by the 

sentencing court, the term of post‐release supervision shall 

be the minimum provided by law.” Section 29‐2204.02(7)(c) 

provides that “[i]f the court imposes more than one sentence 

upon an offender or imposes a sentence upon an offender 

who is at that time serving another sentence, the court shall 

state whether the sentences are to be concurrent or consecutive.” We said in State v. Galvan 35 that the trial court’s discretion to direct that sentences be served either concurrently 

or consecutively applies equally to terms of imprisonment 

and terms of post‐release supervision. Further, Neb. Ct. R. 

§ 6‐1904 sets forth several requirements in cases requiring a post‐release supervision, including that the court shall 

enter a separate post‐release supervision order that includes 

33 Id.

34 Id. (internal quotation marks omitted).

35 See State v. Galvan, supra note 15.
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conditions pursuant to Neb. Rev. Stat. § 29‐2262 (Reissue 

2016) and that the court shall specify on the record that the 

conditions of the order of post‐release supervision may be 

modified or eliminated pursuant to Neb. Rev. Stat. § 29‐2263 

(Reissue 2016). Thus, while it is clear that the term of 

post‐release supervision for Roth must be 9 months, we must 

remand the cause to the district court.

CONCLUSION

Finding plain error in the court’s failure to impose 

post‐release supervision, we vacate the sentences and remand 

the cause with directions to modify the sentences to impose 

9 months’ post‐release supervision and determine, in accordance with § 28‐105(5) and § 6‐1904, the specific terms of the 

post‐release supervision and whether the post‐release supervision is to be served concurrently or consecutively to any other 

terms of post‐release supervision.

Vacated and remanded with directions.