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Nebraska Supreme Court Advance S

300 Nebraska Report

STATE v. DILL

Cite as 300 Neb. 344

State of Nebraska, appellee, v.

Jesse M. Dill, appella

___ N.W.2d ___

Filed June 22, 2018. No. S-17-991.

1. Sentences: Appeal and Error. An appellate court will not disturb a sentence 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 unreasonable 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 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 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: Lor

A. Maret, Judge. Affirme

Joseph D. Nigro, Lancaster County Public Defender, and 

John C. Jorgensen for appellant.

Nebraska Supreme Court Online Library

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

08/24/2018 09:09 AM CDT
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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, 

Papik, JJ

Cassel, J.

INTRODUCTION

Jesse M. Dill appeals from a sentence imposing both imprisonment 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 considered 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 administrative 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 evidence. 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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Cite as 300 Neb. 344

supervision 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 unreasonable 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 conditions 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 challenge to the conditions imposed in connection with a sentence 

of postrelease supervision. But before we reach Dill’s specific 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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Statutory Framewo

The Nebraska Probation Administration Act defines 

terms pertinent to postrelease supervision.5 The definition of 

postrelease supervision is “the portion 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].”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 supervision 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 mandated 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 Implem

Postrelease Supervis

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 individuals 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 warranting termination, and providing additional duties for district 

probation officers,22 and

• for dealing with violations of probation imposed for misdemeanors23 and felonies.24

In accordance with this broad authority, the probation administrator 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 pronounced 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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Statutes Regard

Fees and Cos

[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 sentences 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 programming 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 authorized 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, employment 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 determine the presence of drugs or alcohol, psychological evaluations, 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 determination regarding the existence of an undue hardship regarding monthly programming fees and, if § 29-2262(2)(m) services 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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Modificat

There are multiple points at which the conditions of 

postrelease supervision may be modified. Prior to an individual’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 modification to the post-release supervision order, upon application and recommendation . . . .”41 If the court modifies the 

postrelease supervision order, it must do so prior to the individual’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 conditions 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 deficiency 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 Argume

Dill challenges the imposition of fee-based conditions, 

which she contends were excessive. She asserts that her challenge “essentially present[s] . . . a modified excessive sentence 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, programming 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 sentencing 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 appellate 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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apply to each question. We reject the notion that application of 

one statutory standard mandates the same result under a different 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 hardship, 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 delegated 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 postrelease supervision.” 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.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.

Affirmed

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).