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STATE v. KENNEDY

Cite as 299 Neb. 362

State of Nebraska, appellant, v

Chad T. Kennedy, appel

___ N.W.2d ___

Filed March 16, 2018. No. S-17-703.

1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower 

court’s determination.

2. Sentences: Appeal and Error. Whether an appellate court is reviewing 

a sentence for its leniency or its excessiveness, a sentence imposed by 

a district court that is within the statutorily prescribed limits will not 

be disturbed on appeal unless there appears to be an abuse of the trial 

court’s discretion.

3. Statutes. It is a general principle of statutory construction that to the 

extent there is a conflict between two statutes, the specific statute controls over the general statute.

4. Statutes: Intent: Appeal and Error. When interpreting a statute, effect 

must be given, if possible, to all the several parts of a statute; no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided. An appellate court must look to the statute’s 

purpose and give to the statute a reasonable construction which best 

achieves that purpose, rather than a construction which would defeat it.

5. Probation and Parole. Neb. Rev. Stat. § 29-2268(2) (Reissue 2016) 

does not authorize a probationer to be “unsatisfactorily” discharged 

or terminated from post-release supervision early as the result of 

a violation.

6. Courts: Probation and Parole. Once a district court finds a violation of post-release supervision, it is authorized by Neb. Rev. Stat. 

§ 29-2268 (Reissue 2016) to take one of two paths: It can either revoke 

post-release supervision and impose a term of imprisonment up to the 

remaining period of post-release supervision under subsection (2), or it 

can find that revocation is not appropriate and order one or more of the 

dispositions authorized by subsection (3).

Nebraska Supreme Court Online Library

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

05/25/2018 09:07 AM CDT
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7. Sentences. Pursuant to Neb. Rev. Stat. § 29-2323(1) (Reissue 2016), if 

an appellate court determines a sentence is excessively lenient, it may 

set aside the sentence and either (a) remand the case for imposition of a 

greater sentence, (b) remand the case for further sentencing proceedings, 

or (c) impose a greater sentence.

8. Due Process: Sentences: Probation and Parole. The same hearing procedures and due process protections that apply when a court considers 

a motion to revoke probation apply when a court considers a motion to 

revoke post-release supervision.

Appeal from the District Court for Sarpy County: Georg

A. Thompson, Judge. Vacated and remanded for furth

proceedings.

Lee Polikov, Sarpy County Attorney, and Nicole R. Hutter 

for appellant.

Liam K. Meehan, of Schirber & Wagner, L.L.P., for appellee.

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

Funke, J

Stacy, 

After finding Chad T. Kennedy had violated his post-release 

supervision, the district court terminated it “unsatisfactorily.” 

The State appeals, claiming this resulted in an excessively 

lenient sentence that was not authorized by law. We vacate 

the district court’s order and remand the cause for further proceedings consistent with this opinion.

FACTS

Kennedy was charged in the Sarpy County District Court 

with one count of operating a motor vehicle to avoid arrest 

(Class IV felony)1 and one count of willful reckless driving 

(Class III misdemeanor). On February 9, 2017, he pled guilty 

to an amended information charging him with only the felony 

offense. Kennedy requested immediate sentencing and waived 

1 Neb. Rev. Stat. § 28-905(3)(a)(iii) (Reissue 2016).
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his right to a presentence investigation. He asked not to be 

placed on probation. The court imposed a sentence of 240 

days in jail and 9 months of post-release supervision. He was 

given credit for 150 days already served, and it appears he was 

released from jail the same day he was sentenced.2

In April 2017, the State filed what it captioned a “Motion for 

Revocation of Probation.” It is clear from the record the intent 

was to seek revocation of Kennedy’s post-release supervision. 

The motion to revoke stated that Kennedy was “in violation 

of his probation order dated February 9, 2017” in that he had 

“failed to show for his scheduled probation appoint[ment]s and 

has failed to provide probation with a valid address or contact information.”

At the hearing on the motion to revoke, Kennedy admitted 

he had violated the conditions of his post-release supervision 

and explained he had done so because he was incarcerated 

in Douglas County on an unrelated matter. He told the court 

he had been in custody in Douglas County for 40 days and 

expected to be released “in another 32” and given 6 months’ 

probation in a “rehab and halfway house.” The court accepted 

Kennedy’s admission and found he had violated the terms and 

conditions of his post-release supervision.

The court then asked counsel how they wished to proceed. Defense counsel advised “the cleanest thing would just 

be to terminate him unsuccessfully from supervision” and 

“they’ll take that into consideration in sentencing in Douglas 

County.” The State disagreed. It argued the court lacked statutory authority to unsuccessfully terminate post-release supervision and suggested instead that “a sentencing order consistent with his [remaining] post release supervision term would 

be appropriate.”

The court stated:

I’m going to note for the record a couple things: 

. . . Kennedy is under the jurisdiction and custody of 

2 See Neb. Rev. Stat. §§ 47-502 and 47-503 (Reissue 2010).
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the fourth judicial district at this point in time and pending charges there. Certainly we did the transport order 

to get him here. And the point and purpose of post 

release supervision is to provide guidance and/or track 

for defendants to be able to follow that is being currently 

set up with Douglas County. And as a result of that he 

can’t comply with our post release supervision because 

he’s in custody in Douglas County. So, based upon the 

admission, the court is going to find . . . Kennedy has 

violated the terms and conditions of his post release 

supervision.

The court is going to terminate probation [as being] 

unsatisfactory. And that will be the judgment and order 

[of] the court. [Kennedy is] remanded to the custody of 

the sheriff.

The court’s minute entry specifically noted that the court was 

not “revok[ing]” Kennedy’s probation. The following day, on 

June 20, 2017, the court entered what it styled a “Judgment and 

Sentence” that provided in relevant part:

[Kennedy] was personally advised of his conviction 

for the crime of Count 1: Operating a motor vehicle to 

avoid arrest, felony offense, a class IV felony, pursuant 

to his plea of guilty and judgment of conviction entered 

on February 9, 2017, and [Kennedy’s] admission to the 

Motion to Revoke Probation entered on June 19, 2017 

and offered no good or sufficient reason why a sentence 

should not be imposed for such crime. The Court terminated the Post Release Supervision.

IT IS THEREFORE ORDERED that the Post Release 

Supervision is hereby terminated as unsatisfactorily.

The Sarpy County Attorney, with the consent of the Attorney 

General (State), timely appealed, alleging the sentence imposed 

was excessively lenient.3 We moved the case to our docket on 

our own motion and set it for oral argument.

3 See Neb. Rev. Stat. §§ 29-2320 and 29-2321 (Reissue 2016).
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ASSIGNMENTS OF ERROR

The State assigns, restated, that the district court (1) abused 

its discretion in imposing an excessively lenient sentence not 

authorized by Neb. Rev. Stat. § 29-2268 (Reissue 2016) and 

(2) committed plain error by imposing a sentence outside the 

statutory limits.

STANDARD OF REVIEW

[1] Statutory interpretation presents a question of law, which 

an appellate court reviews independently of the lower court’s 

determination.4

[2] Whether an appellate court is reviewing a sentence for 

its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will 

not be disturbed on appeal unless there appears to be an abuse 

of the trial court’s discretion.5

ANALYSIS

Post-release supervision is a relatively new concept in 

Nebraska sentencing law.6 Last year, in State v. Phillips,

7

 this 

court had its first opportunity to address the procedure for 

imposing a term of post-release supervision under § 29-2204.02. 

The issues presented in the instant appeal provide our first 

opportunity to address the procedure when moving to revoke 

such a term.

As a threshold matter, we observe that the Legislature 

has defined “[p]robationer” to mean “a person sentenced 

to probation or post-release supervision.”8 Similarly, it has 

4 State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015); State v. Draper, 

289 Neb. 777, 857 N.W.2d 334 (2015).

5 State v. Moore, 274 Neb. 790, 743 N.W.2d 375 (2008).

6 See Neb. Rev. Stat. §§ 28-105 (Supp. 2017) and 29-2204.02 (Reissue 

2016).

7 State v. Phillips, 297 Neb. 469, 900 N.W.2d 522 (2017).

8 Neb. Rev. Stat. § 29-2246(5) (Reissue 2016).
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defined “[p]robation” to “include[] post-release supervision.”9

“Post-release supervision” is defined to mean “the portion 

of a split sentence following a period of incarceration under 

which a person found guilty of a crime upon verdict or 

plea is released by a court subject to conditions imposed 

by the court and subject to supervision by the [Office of 

Probation Administration].”10 The Legislature has instructed 

that these statutory definitions apply for purposes of the 

Nebraska Probation Administration Act11 “unless the context 

otherwise requires.”12

As such, the Nebraska Probation Administration Act 

sometimes refers to probation and post-release supervision 

interchangeably,13 and other times, separately.14 This may 

explain why, in the present case, the State filed a motion 

to revoke “probation” even though Kennedy had been sentenced to a term of incarceration followed by a term of postrelease supervision. The trial court used the same vernacular 

in its June 20, 2017, sentencing order. Particularly because the 

available disposition differs slightly based on whether a probationer is alleged to have violated the terms of his or her probation or post-release supervision,15 we encourage courts, and 

officers of the courts, to be precise when taking up motions 

to revoke.

§ 29-2268

Violations of probation and post-release supervision are 

governed by § 29-2268, which provides:

9 § 29-2246(4).

10 § 29-2246(13).

11 Neb. Rev. Stat. §§ 29-2246 to 29-2269 (Reissue 2016).

12 § 29-2246.

13 See, e.g., §§ 29-2250, 29-2251, 29-2258, 29-2262, and 29-2267.

14 See, e.g., §§ 29-2263(2) and (3) and 29-2268(1) and (2).

15 See § 29-2268(1) and (2).
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(1) If the court finds that the probationer, other than a 

probationer serving a term of post-release supervision, did 

violate a condition of his or her probation, it may revoke 

the probation and impose on the offender such new sentence as might have been imposed originally for the crime 

of which he or she was convicted.

(2) If the court finds that a probationer serving a term 

of post-release supervision did violate a condition of his 

or her post-release supervision, it may revoke the postrelease supervision and impose on the offender a term of 

imprisonment up to the remaining period of post-release 

supervision. The term shall be served in an institution 

under the jurisdiction of the Department of Correctional 

Services or in county jail subject to subsection (2) of section 28-105.

(3) If the court finds that the probationer did violate a 

condition of his or her probation, but is of the opinion that 

revocation is not appropriate, the court may order that:

(a) The probationer receive a reprimand and warning;

(b) Probation supervision and reporting be intensified;

(c) The probationer be required to conform to one 

or more additional conditions of probation which may 

be imposed in accordance with the Nebraska Probation 

Administration Act;

(d) A custodial sanction be imposed on a probationer 

convicted of a felony, subject to the provisions of section 

29-2266.03; and

(e) The probationer’s term of probation be extended, 

subject to the provisions of section 29-2263.

Section 29-2268(1) is not applicable to Kennedy because it 

expressly excludes those on post-release supervision from the 

definition of probationer. Thus, the question presented here 

is whether the district court had authority, pursuant to either 

§ 29-2268(2) or (3), to terminate post-release supervision 

“unsatisfactorily” after finding a violation.
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The State argues that upon finding a violation of postrelease supervision, the district court had only two options 

under § 29-2268: It could either revoke post-release supervision pursuant to § 29-2268(2) and impose a term of incarceration up to the remainder of the post-release supervision term 

or it could find that revocation is not appropriate and enter an 

order pursuant to § 29-2268(3)(a) through (e).

Kennedy argues the district court had a third option: It could 

discharge him from post-release supervision altogether under 

§ 29-2263. We address this argument first, and find it has 

no merit.

§ 29-2263 Does Not Authori

Unsatisfactory Dis

Section 29-2263 addresses both probation16 and post-release 

supervision,17 and provides in pertinent part:

When a court has sentenced an offender to post-release 

supervision, the court shall specify the term of such 

post-release supervision as provided in section 28-105. 

The court, on application of a probation officer or of the 

probationer or on its own motion, may discharge a probationer at any time.18

Kennedy argues the second sentence of § 29-2263(2) gave 

the district court authority to enter an order terminating his 

post-release supervision “unsatisfactorily” once it found a violation.19 He urges us to interpret § 29-2263(2) to apply in 

circumstances where a violation of post-release supervision 

has been found and asks that we equate “discharge” under 

§ 29-2263(2) with being “terminated unsatisfactorily.”20 We 

decline to do either.

16 § 29-2263(1) and (3) through (5).

17 § 29-2263(2) through (5).

18 § 29-2263(2).

19 Brief for appellee at 6.

20 Id.
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[3] Section 29-2263 generally governs a court’s power to 

impose, modify, and discharge a person from probation and 

post-release supervision. In contrast, § 29-2268 specifically 

governs violations of probation and post-release supervision 

and thus is the more specific statute. It is a general principle 

of statutory construction that to the extent there is a conflict 

between two statutes, the specific statute controls over the 

general statute.21

More importantly, the early discharge permitted by 

§ 29-2263(2) is incompatible with “unsatisfactory” termination. Section 29-2263(4) explains that “[u]pon completion of 

the term of probation, or the earlier discharge of the probationer, the probationer shall be relieved of any obligations 

imposed by the order of the court and shall have satisfied the 

sentence for his or her crime.”

[4] When interpreting a statute, effect must be given, if possible, to all the several parts of a statute; no sentence, clause, 

or word should be rejected as meaningless or superfluous if it 

can be avoided.22 An appellate court must look to the statute’s 

purpose and give to the statute a reasonable construction which 

best achieves that purpose, rather than a construction which 

would defeat it.23

[5] Because an early discharge under § 29-2263(2) results 

in satisfying the sentence imposed, it cannot be reconciled 

with “unsatisfactorily” completing the sentence. We thus 

hold that once the State invoked the revocation process 

under § 29-2268 and the district court found a violation 

of post-release supervision, the court was not empowered, 

21 See State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012).

22 See, Keller v. Tavarone, 265 Neb. 236, 655 N.W.2d 899 (2003); Omaha 

Pub. Power Dist. v. Nebraska Dept. of Revenue, 248 Neb. 518, 537 

N.W.2d 312 (1995).

23 See, In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010); 

TracFone Wireless v. Nebraska Pub. Serv. Comm., 279 Neb. 426, 778 

N.W.2d 452 (2010).
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at that point, to invoke the early discharge provisions of 

§ 29-2263(2).24

Only Dispositions for Viol

of Post-Release Supervi

Are Those Enumerat

§ 29-2268(2) and (3

[6] We agree with the State that once the district court 

found a violation of post-release supervision, it was authorized by § 29-2268 to take one of two paths: It could either 

revoke post-release supervision and impose a term of imprisonment up to the remaining period of post-release supervision 

under subsection (2), or it could find that revocation was not 

appropriate and order one or more of the dispositions authorized by subsection (3). Stated differently, once a violation of 

post-release supervision is found, a district court may proceed 

under either subsection (2) or subsection (3) of § 29-2268, but 

the statutory language does not authorize any disposition not 

therein enumerated.

Before considering whether the district court was proceeding 

under subsection (2) or subsection (3) of § 29-2268, we pause 

to address a jurisdictional question raised by Kennedy.

Jurisdiction Over This A

Kennedy, relying on State v. Caniglia,

25 argues this court 

lacks jurisdiction over the instant appeal, because no sentence 

was imposed that the State may challenge as excessively 

lenient. We disagree.

In Caniglia, the defendant was convicted in Sarpy County 

District Court of driving under the influence in August 2003. 

At the time, she was on intensive supervision probation in 

Douglas County for another conviction of driving under the 

24 Accord State v. Caniglia, 272 Neb. 662, 668, 724 N.W.2d 316, 320 (2006) 

(in probation revocation proceeding, § 29-2268 does not authorize district 

court to order probation “terminated as unsuccessful”).

25 Caniglia, supra note 24.
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influence. The Sarpy County court sentenced her to probation, to be served concurrently with the Douglas County probation. Both probation orders required that she refrain from 

using alcohol.

In December 2004, the State moved to revoke the Sarpy 

County probation, alleging the defendant was using alcohol, 

which the defendant admitted. At the hearing on the motion to 

revoke, the evidence showed the defendant already had been 

terminated from her Douglas County probation for using alcohol. The revocation in Douglas County resulted in her serving 

15 days in jail and having her driver’s license revoked for 

15 years. After noting what had occurred in Douglas County, 

the Sarpy County court found a probation violation, and 

then, without ruling on the motion to revoke, terminated the 

defendant’s probation as “‘unsuccessful.’”26

The State appealed the district court’s order pursuant to a 

statute authorizing the State to appeal “the sentence imposed” 

if it reasonably believes the sentence is excessively lenient.27

We held the district court had not imposed a sentence at all, 

thus, this statute did not authorize the State’s appeal. In doing 

so, we analyzed the version of § 29-2268 in effect at the time 

(which is substantially similar to the current version, minus 

the specific inclusion of post-release supervision). We noted 

that pursuant to the terms of the statute, once the district court 

found a violation of probation it

was authorized to revoke probation and impose a sentence, to reprimand and warn the probationer, to intensify 

supervision, to impose additional terms of probation, or 

to extend the term of probation. The district court did 

none of the above. Instead, the district court ordered the 

probation “terminated as unsuccessful.” This was neither 

an authorized order nor a sentence.28

26 Id. at 665, 724 N.W.2d at 318.

27 See § 29-2320.

28 Caniglia, supra note 24, 272 Neb. at 667-68, 724 N.W.2d at 320.
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Based on this rationale, we found there was no appellate jurisdiction, because no “sentence” had been imposed 

that could be challenged as excessively lenient pursuant to 

§ 29-2320.

Here, the State also seeks to challenge the sentence as 

excessively lenient and relies on the same statute at issue 

in Caniglia, which requires a challenge from “the sentence 

imposed.”29 But unlike in Caniglia, the district court here ruled 

on the motion to revoke by determining revocation was not 

appropriate, and then proceeded to enter a sentencing order 

which purported to modify the sentence of post-release supervision by terminating it unsatisfactorily. As such, the jurisdictional concerns present in Caniglia are not present here. We 

conclude that the district court’s order of June 20, 2017, is 

a sentencing order from which the prosecuting attorney may 

appeal under § 29-2320. We proceed to consider the merits 

of the State’s contention that the sentencing order was excessively lenient.

Court Was Not Procee

Under § 29-2268(

In the present case, after finding Kennedy had violated his 

post-release supervision, the district court made clear it was 

not revoking that supervision as authorized by § 29-2268(2). 

However, Kennedy suggests the court’s sentencing order 

should be construed to have had the practical effect of revoking probation and imposing a term of “zero months” of 

imprisonment.30

We rejected a similar argument in Caniglia. In that case, 

we refused to infer a term of imprisonment when one was not 

expressly stated, reasoning that when imposing a sentence, a 

court must state with care the precise terms of the sentence 

and that imposition of a sentence in a revocation of probation 

29 See § 29-2320.

30 Brief for appellee at 9.
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context is deserving of the same clarity expected when the 

initial sentence is imposed.31

We apply the same reasoning here and conclude the district 

court’s order cannot reasonably be interpreted to have revoked 

probation and imposed a term of “zero months” of imprisonment, when the court expressly held it was not revoking supervision and expressed no precise term of sentence. The district 

court was not proceeding under § 29-2268(2) when it opted not 

to revoke Kennedy’s post-release supervision, but, rather, to 

terminate it unsatisfactorily.

Court Attempted to Proceed 

§ 29-2268(3), But Err

Subsection (3) of § 29-2268 allows a court, after finding a 

violation of probation or post-release supervision, to decide 

that revocation is not appropriate, and instead order:

(a) The probationer receive a reprimand and warning;

(b) Probation supervision and reporting be intensified;

(c) The probationer be required to conform to one 

or more additional conditions of probation which may 

be imposed in accordance with the Nebraska Probation 

Administration Act;

(d) A custodial sanction be imposed on a probationer 

convicted of a felony, subject to the provisions of section 

29-2266.03; and

(e) The probationer’s term of probation be extended, 

subject to the provisions of section 29-2263.

Here, after finding a violation, the court made clear it was 

not revoking Kennedy’s post-release supervision. We find that 

portion of the district court’s decision was authorized by 

§ 29-2268(3). But having elected not to revoke post-release 

supervision, the court was limited to the dispositions enumerated in § 29-2268(3). Because the sentencing order did 

not impose any disposition authorized by subsection (3), that 

31 Caniglia, supra note 24.
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portion of the court’s order was erroneous and resulted in an 

excessively lenient sentence.

Vacate With Direc

[7] For all of these reasons, the portion of the sentencing 

order which purported to terminate unsatisfactorily Kennedy’s 

post-release supervision as a result of a violation was not 

authorized by statute, was erroneous, and resulted in an 

excessively lenient sentence.32 Pursuant to Neb. Rev. Stat. 

§ 29-2323(1) (Reissue 2016), if an appellate court determines 

a sentence is excessively lenient, it may set aside the sentence 

and either (a) remand the case for imposition of a greater sentence, (b) remand the case for further sentencing proceedings, 

or (c) impose a greater sentence. We conclude it is appropriate to remand the cause for further sentencing proceedings 

consistent with the applicable statutes33 and Kennedy’s due 

process rights.34

[8] For the sake of completeness, we remind the parties and 

the court that the Legislature has established the procedure to 

be followed when a motion to revoke probation is filed,35 and 

this court has identified the minimum due process protections 

required at probation revocation hearings.36 We now expressly 

hold these same hearing procedures and due process protections apply when the court is considering a motion to revoke 

a term of post-release supervision. On remand, these procedures should be followed.

32 See, State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997); State v. 

Bensing, 249 Neb. 900, 547 N.W.2d 464 (1996); State v. Campbell, 247 

Neb. 517, 527 N.W.2d 868 (1995).

33 §§ 29-2267 and 29-2268.

34 See, e.g., State v. Johnson, 287 Neb. 190, 842 N.W.2d 63 (2014); State v. 

Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011).

35 See § 29-2267(1) and (2).

36 See, e.g., Johnson, supra note 34; Shambley, supra note 34.
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CONCLUSION

Once the district court found a violation of post-release 

supervision and decided it was not appropriate to revoke 

supervision, it was authorized by § 29-2268(3) to either (a) 

order a reprimand or warning, (b) intensify supervision or 

reporting, (c) impose additional conditions of probation, (d) 

impose custodial sanctions, or (e) extend the term of probation. Because it did none of these and instead erroneously 

terminated post-release supervision altogether, we vacate the 

sentencing order of June 20, 2017, as excessively lenient, and 

remand the cause for further proceedings not inconsistent with 

this opinion.

 Vacated and remande

further proceedin

Kelch, J., not participating in the decisio

Wright, J., not participating