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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. PHILLIPS

Cite as 297 Neb. 469

State of Nebraska, appellee, v.

Christian E. Phillips, appell

___ N.W.2d ___

Filed August 11, 2017. No. S-16-845.

1. Sentences: Appeal and Error. Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court 

must determine whether the sentencing court abused its discretion in 

considering and applying the relevant factors as well as any applicable 

legal principles in determining the sentence to be imposed.

2. Judgments: Appeal and Error. 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. When imposing a sentence, the 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 violence involved in the 

commission of the offense. The sentencing court is not limited to any 

mathematically applied set of factors.

Appeal from the District Court for Lancaster County: Sus

I. Strong, Judge. Affirm

Joseph D. Nigro, Lancaster County Public Defender, and 

John C. Jorgensen for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Nebraska Supreme Court Online Library

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

11/03/2017 09:14 AM CDT
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. PHILLIPS

Cite as 297 Neb. 469

Heavican, C.J., Wright, Miller-Lerman, Cassel,

Kelch, and Funke,

Heavican, C

INTRODUCTION

Christian E. Phillips was found guilty of a violation of 

the Sex Offender Registration Act (SORA). He was sentenced to 12 months’ imprisonment and 12 months’ supervised 

release. He appeals. This case presents our first opportunity to 

address postrelease supervision as enacted by 2015 Neb. Laws, 

L.B. 605. We affirm.

FACTUAL BACKGROUND

Phillips was convicted of third degree sexual assault of 

a child in September 2013. Based upon that conviction, he 

was required to register under SORA as a 25-year registrant. Phillips received notification of that requirement and 

acknowledged his responsibilities under the act.

Upon release, Phillips reported a location in Sarpy County, 

Nebraska, as his address. Upon investigation, that address was 

found to be fictitious. Phillips was later discovered to be residing at a different address. He never reported this address to 

any sheriff’s office.

Accordingly, Phillips was charged with the failure to register as required by SORA. He pled no contest pursuant to a 

plea agreement and was sentenced to 12 months’ imprisonment and 12 months’ supervised release. In connection with 

Phillips’ supervised release, the district court set multiple 

conditions:

1. Shall not violate any laws and shall refrain from 

disorderly conduct or acts injurious to others.

2. Shall avoid social contact with those persons having 

criminal records or who are on probation or parole, except 

as expressly permitted by your post-release supervision/

probation officer.
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. PHILLIPS

Cite as 297 Neb. 469

3. Shall report in writing and/or in person during the 

term of post-release supervision/probation as directed by 

the Court or post-release supervision/probation officer.

4. Shall truthfully answer any inquiries of the postrelease supervision/probation officer and allow the postrelease supervision/probation officer to visit at all reasonable times and places.

5. Shall be employed, in school or in treatment or 

a combination of any not less than full time, or provide proof that employment, school admission or treatment is being sought, and permission of the post-release 

supervision/probation officer shall be obtained before any 

change of employment, school or treatment.

6. Shall reside at an address provided to the postrelease supervision/probation officer, and permission of 

the post-release supervision/probation officer shall be 

obtained before any change of address. Travel permits are 

required for any travel outside of the state of Nebraska.

7. Shall submit to search and seizure of your premises, person, or vehicle upon request of the post-release 

supervision/probation officer (or law enforcement officer), with or without a warrant, day or night, to determine the presence of alcoholic beverages, controlled 

substances or other contraband.

8. Shall not use, consume or have in your personal 

possession any alcoholic beverage or controlled substance 

(except as prescribed by a duly licensed physician or dentist) and shall submit to a chemical test of blood, breath, 

or urine at your expense upon request of the post-release 

supervision/probation officer or law enforcement officer 

to determine the use of alcoholic liquor or drugs. The 

prohibition against using, consuming and/or possessing 

controlled substances includes designer drugs and synthetic drugs.
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. PHILLIPS

Cite as 297 Neb. 469

9. Shall submit to random drug and alcohol testing as 

instructed by your post-release supervision officer but in 

no event fewer than 3 times per week.

10. Shall not have or associate with anyone who has 

possession of firearms, ammunition, or illegal weapons.

11. FINE AND COSTS: Shall pay:

a. Court Costs — ALL;

b. Chemical Testing: $5.00 per month to the state 

supervising post-release supervision office;

c. Pay a post-release supervision administrative 

enrollment fee of $30.00 immediately. In addition, pay 

a monthly post-release supervision programming fee. If 

supervised in Nebraska, pay a monthly fee of $25.00 per 

month for 12 months. Monthly post-release supervision 

programming fees are due and payable to the Clerk of the 

District Court on or before the 10th day of each month.

12. Any bond money not subject to a valid lien or 

assignment shall be applied to the financial obligations ordered herein. All financial obligations shall be 

completed no later than 30 days prior to the date of discharge from post-release supervision.

13. Shall not frequent any establishment whose primary source of business is the dispensing of alcoholic 

beverages.

14. Shall successfully complete an alcohol, drug, substance abuse and/or mental health evaluation and follow 

all recommendations for counseling or treatment at the 

recommended level of care, as directed by the postrelease supervision/probation officer at the defendant’s 

costs.

15. Shall attend at least 2 social support group meetings such as AA or NA per week, and obtain and maintain 

an AA/NA sponsor within 60 days, and verify the same 

with your post-release supervision/probation officer.
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. PHILLIPS

Cite as 297 Neb. 469

16. CONTINUOUS ALCOHOL MONITOR: Defendant 

shall be required to be equipped with and use a continuous alcohol monitoring device if directed by the post 

release supervision/probation officer, at the Defendant’s 

cost.

17. Shall sign any releases necessary for continued 

evaluation and/or treatment of any alcohol, drug, substance abuse and/or mental health care as outlined above.

18. Shall participate in and follow the case plan developed by the post release supervision officer including, but 

not limited to, life skills group or educational enhancement classes, social activities, and any other programming deemed by the probation office to be of benefit to 

the Defendant.

19. Shall complete a sexually-based offense screening 

and follow any screening recommendation for evaluation 

or treatment as may be determined by the post release 

supervision officer to be reasonable and necessary for 

Defendant’s rehabilitation.

20. Shall not use any electronic device that has access 

to the internet until written permission to do so is granted 

by the post release supervision officer.

21. To the extent Defendant has written permission 

to access the internet, Defendant shall comply with any 

limitations for such access as directed by the post release 

supervision officer including the installation of tracking 

or other software. Defendant consents, upon the request 

of any law enforcement officer or post release supervision officer to the examination and search of any electronic device owned or used by the Defendant. Defendant 

shall, on request provide law enforcement officers with 

all email addresses and social media identifiers of every 

kind or nature used by the Defendant to access any internet site. To further enable such examination or search, 

Defendant shall on request, provide any passwords, PINs, 
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297 Nebraska Report

STATE v. PHILLIPS

Cite as 297 Neb. 469

access codes, web addresses, login scripts or other protocol needed to access any devices used or required to 

access the particular internet resource. Defendant shall 

not erase any internet browsing data, history or downloaded files from any electronic device.

22. Shall not use the internet for any reason unless 

given advanced permission by the supervising officer. 

If permission is granted, the defendant shall refrain 

from visiting or viewing any social internet site, chat 

room or pornographic internet site at any time. Further, 

the Defendant is not allowed to visit any other type 

of internet site in which there is interaction with other 

people without first identifying the site to the supervising officer and obtaining permission to utilize such site. 

Finally, the Defendant shall grant the officer full access 

to all computers to which the defendant has access upon 

request to confirm compliance with the prohibitions set 

forth herein.

23. Shall not use or possess a computer, smart phone 

or any other electronic device with internet access without 

permission of the supervising officer.

24. Shall not possess any pornographic, sexually oriented or sexually stimulating materials to include: visual, 

auditory, telephonic, electronic media, computer programs 

or services. Defendant shall not patronize any place where 

such material or entertainment is available. Defendant 

shall not utilize any sexually related telephone numbers, 

and may be required to submit proof of this.

25. The supervising officer may grant permission for 

the use of sexually oriented material only for treatment 

purposes.

26. Defendant shall submit to polygraph examinations 

as directed by the post release supervision officer at 

Defendant’s cost.
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. PHILLIPS

Cite as 297 Neb. 469

The sentencing order additionally noted that “the Court, upon 

application of the supervising officer or the Defendant or upon 

its own Motion, may modify or eliminate any of the above 

conditions or add further conditions.”

ASSIGNMENTS OF ERROR

Phillips assigns that (1) his sentence was excessive and (2) 

certain conditions imposed were unconstitutional, “in violation 

of the First Amendment, Ex Post Facto protections, the Fourth 

Amendment and Due Process guarantees and conditions that 

are not reasonably related to [his] rehabilitation.”

STANDARD OF REVIEW

[1,2] Where a sentence imposed within the statutory limits 

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

determine whether the sentencing court abused its discretion 

in considering and applying the relevant factors as well as any 

applicable legal principles in determining the sentence to be 

imposed.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

Phillips argues that his sentence was excessive and that certain conditions imposed upon him were unconstitutional.

Excessive Sen

Imprisonm

Phillips, a 25-year SORA registrant, failed to register his 

address as required by SORA. He was convicted of that violation, a Class IIIA felony, and was sentenced to 12 months’ 

imprisonment. He argues that this sentence was excessive.

1 State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).

2 State v. Loding, 296 Neb. 670, 895 N.W.2d 669 (2017).
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. PHILLIPS

Cite as 297 Neb. 469

[3] When imposing a sentence, the 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 violence involved in the commission of the offense. 

The sentencing court is not limited to any mathematically 

applied set of factors.3

As an initial matter, Phillips served 6 months on this conviction and, with good time, has since been released from 

imprisonment and is serving his 1-year term of postrelease 

supervision. In any case, however, this term of imprisonment 

was not excessive.

Phillips’ SORA violation was a Class IIIA felony, punishable by a maximum of 3 years’ imprisonment and 18 months’ 

postrelease supervision, and/or a $10,000 fine.4 His 1-year sentence of imprisonment was within statutory guidelines and well 

below the maximum.

Phillips argues that he does not have an extensive criminal 

record and that thus, the sentence of 1 year’s imprisonment 

was excessive. While it might be true that Phillips does not 

have an extensive history, he does have at least one conviction for sexual assault—the crime that required him to register under SORA. And Phillips failed to comply with SORA. 

Given the nature of the charge as it related to Phillips’ criminal 

history, we cannot conclude that this sentence was an abuse 

of discretion.

Phillips’ first assignment of error is without merit.

Conditions of Postrele

Supervisi

Phillips also argues that the conditions of his postrelease 

supervision were unconstitutional in various respects. As noted 

3 State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (2015).

4 Neb. Rev. Stat. § 28-105 (Supp. 2015).
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STATE v. PHILLIPS

Cite as 297 Neb. 469

above, Phillips was convicted of a Class IIIA felony and up to 

18 months’ postrelease supervision is permitted.5

Both § 28-105 and Neb. Rev. Stat. § 29-2204.02 (Supp. 

2015) authorize the imposition of postrelease supervision as 

part of a determinate sentence. Section 28-105(5) further provides that “[a]ll sentences of post-release supervision shall 

be served under the jurisdiction of the Office of Probation 

Administration and shall be subject to conditions imposed pursuant to section 29-2262 and subject to sanctions authorized 

pursuant to section 29-2266.” Thus, as an initial matter, there 

is no question that it was proper for the district court to impose 

both a sentence of imprisonment and a sentence of postrelease 

supervision, and Phillips does not argue otherwise.

Neb. Ct. R. § 6-1904 (rev. 2016) provides the process to 

undertake when imposing a sentence of postrelease supervision. According to § 6-1904(A),

[i]n cases requiring a determinate sentence pursuant to 

Neb. Rev. Stat. § 29-2204.02, the court shall, at the time 

a sentence is pronounced, impose a term of incarceration 

and a term of post-release supervision pursuant to Neb. 

Rev. Stat. § 29-2204.02(1), and shall enter a separate 

post-release supervision order that includes conditions 

pursuant to Neb. Rev. Stat. § 29-2262. The court shall 

specify, on the record, that conditions of the order of 

post-release supervision may be modified or eliminated 

pursuant to Neb. Rev. Stat. § 29-2263(3).

In accordance with this subsection, the district court imposed 

a determinate sentence of 12 months and a 12-month term of 

postrelease supervision, complete with conditions. It was from 

this final order that Phillips appealed.

Before addressing the validity of the conditions imposed 

upon Phillips, we must consider the State’s contention that 

Phillips has waived any objection to those conditions.

5 Id.
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. PHILLIPS

Cite as 297 Neb. 469

We observe that notice is essential to the resolution of 

whether Phillips waived any objection to the conditions of his 

postrelease supervision.6 Fundamental to the question of notice 

are whether the defendant was adequately informed about 

the conditions of his postrelease supervision and whether the 

defendant was given the opportunity to challenge those conditions. If a defendant is not adequately informed about the 

conditions imposed or does not receive an opportunity to challenge them, there can be no waiver.

We conclude that, in this case, Phillips was adequately 

informed of the conditions of his postrelease supervision and 

was given the opportunity to challenge those conditions. At 

his sentencing hearing, Phillips refused to sign an attestation 

to the conditions indicating that he agreed to the conditions 

of his postrelease supervision. Instead, Phillips agreed only to 

sign an acknowledgment that he had received those conditions. 

But our review of the record shows that at no point during that 

hearing did Phillips specify the issues and concerns he had 

with the conditions imposed upon him. As such, we conclude 

that Phillips waived those conditions because his objections 

were insufficient to preserve them.

CONCLUSION

The judgment and sentence of the district court are affirmed.

Affirmed

6 Cf. State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006).