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State of Nebraska, appellee, v.

Earnest D. Jackson, appe

___ N.W.2d ___

Filed June 23, 2017. No. S-16-506.

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

the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

3. Constitutional Law: States: Minors: Convictions: Sentences: 

Probation and Parole. It is unconstitutional for a state to impose a 

sentence of life imprisonment without parole on a juvenile convicted of 

a nonhomicide offense.

4. Minors: Convictions. Juvenile offenders convicted of nonhomicide 

crimes must be given some meaningful opportunity to obtain release 

based on demonstrated maturity and rehabilitation.

5. Minors: Convictions: Homicide: Sentences. In Miller v. Alabama, 567 

U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), the U.S. Supreme 

Court declined to extend a categorical bar of no life-without-parole sentences to juveniles convicted of homicide.

6. Minors: Sentences. A sentencer must take into account how children 

are different and how those differences counsel against irrevocably sentencing them to a lifetime in prison.

7. Constitutional Law: States: Courts: Time: Appeal and Error. When 

a new substantive rule of constitutional law controls the outcome of a 

case, the federal Constitution requires state collateral review courts to 

give retroactive effect to that rule.

8. Minors: Convictions: Homicide: Sentences. A juvenile offender convicted of a homicide offense may be sentenced to life imprisonment 

without parole so long as the sentencer considered specific, individualized factors before handing down that sentence.

Nebraska Supreme Court Online Library

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

08/18/2017 09:09 AM CDT
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9. Sentences: Judgments. The appropriateness of a sentence is necessarily 

a subjective judgment and includes the sentencing judge’s observations 

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

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Affirme

Jeffery A. Pickens, of Nebraska Commission on Public 

Advocacy, for appellant.

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

Vincent for appellee.

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

Kelch, and Funke,

Funke, 

NATURE OF CASE

In 2000, a jury found Earnest D. Jackson guilty of first 

degree murder but acquitted him of the use of a deadly weapon 

charge. The court sentenced him to life imprisonment for the 

first degree murder conviction. On direct appeal, we affirmed 

Jackson’s conviction and sentence.1

This is Jackson’s appeal from the district court’s order 

resentencing him for his first degree murder conviction. At 

the time of the crime, Jackson’s age was 17 years 10 months. 

The resentencing was required under the U.S. Supreme Court’s 

decisions in Miller v. Alabama2 and Montgomery v. Louisiana3

and this court’s decision in State v. Mantich.

4

 Following a full 

evidentiary hearing and arguments, Jackson was resentenced 

1 State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002).

2 Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 

(2012).

3 Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193 L. Ed. 2d 599 

(2016).

4 State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 (2014).
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in accordance with Nebraska statutes. Jackson appeals his 

resentencing. We affirm.

FACTS

Facts of Crime and Direct 

In Jackson’s direct appeal, we set forth the facts upon which 

his conviction was supported. On August 31, 1999, Robert 

Sommerville, Shawon McBride, Dante Chillous, and Jackson 

were riding in a gray Cadillac, without a particular destination. 

They ended up near the Redman Apartments, where they conversed in the parking lot with a group of people. Sommerville 

testified that they spoke with Shalamar Cooperrider, then followed Cooperrider to his aunt’s house, where Chillous and 

Jackson got out of the car. At some point, McBride picked up 

Cooperrider and Jackson at Jackson’s house and dropped them 

off at an alley a block south of Redman Avenue.

Lance Perry resided in an apartment located at 4614 Redman 

Avenue with his mother, Margaret Parrott, and his sister 

Elizabeth Williams. On the evening of August 31, 1999, Parrott 

and Perry were outside the apartment until Parrott went inside 

at 11:30 p.m. Perry stayed outside with Elexsis Fulton.

While Perry and Fulton were still outside, Cooperrider 

approached Perry and the two began talking. Fulton, who had 

never met Cooperrider before that night, described him as 

“light brown” with a brush haircut, wearing a tan shirt and tan 

pants. During the conversation, two more men, whom Fulton 

described, respectively, as light-skinned with a ponytail and 

dark-skinned with braided hair and a blue “FUBU” brand shirt, 

came out of the apartment building one door north of Perry’s 

door. At trial, Fulton identified the ponytailed man as Chillous 

and the man with braids and a FUBU shirt as Jackson. The 

jury received other testimony that Jackson did not have his 

hair in braids, but that Chillous wore his hair in a ponytail. 

Fulton observed Jackson, Cooperrider, and Chillous leave the 

Redman Apartments in a gray Cadillac after Cooperrider’s 

conversation with Perry.
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After the Cadillac departed, Perry entered his apartment and 

retrieved a .22-caliber Ruger handgun. Parrott and Williams 

followed Perry out of the apartment, and Parrott observed 

Perry bending down beside a bush by 4612 Redman Avenue, 

the apartment building opposite 4614 Redman Avenue. Parrott 

reentered the apartment.

Fulton testified that the gray Cadillac returned later that 

evening and that Jackson, Cooperrider, and Chillous got out 

of the Cadillac. Fulton further testified that Cooperrider had 

changed from tan clothing to black clothing. Fulton observed 

the three men approach Perry, at which time, Cooperrider 

and Perry began arguing. Chillous and Jackson went across 

the street to Chillous’ home, and on their way back, Fulton 

saw Chillous try to hand Cooperrider a gun. Fulton testified 

that Jackson got involved in the argument, then pulled out a 

gun and struck Perry in the head three times. Fulton then ran 

inside the building and continued to watch from an upstairs 

window. Fulton testified that Chillous was the first to fire a 

gun and that he saw Perry being shot in the back while lying 

on his stomach.

Fulton testified at Jackson’s trial that he had no doubt 

that Jackson shot Perry. Fulton had not known the names of 

Jackson, Chillous, or Cooperrider before bystanders (who had 

not witnessed the shooting) told Fulton the names of the three 

men. Jackson’s counsel read into evidence Fulton’s testimony 

from the preliminary hearing that Fulton had learned Jackson’s, 

Cooperrider’s, and Chillous’ names from the police. Fulton testified that he had identified Jackson, Cooperrider, and Chillous 

at the preliminary hearing as the men who shot Perry. Fulton 

had not previously identified Jackson in a photographic or 

police lineup.

Parrott heard 20 to 30 shots that sounded as if they were coming from different types of guns at different distances; Williams 

testified that the sound resembled firecrackers. Parrott and 

Williams ran outside after hearing gunshots and found Perry 

on the sidewalk with bullet wounds in his stomach. Parrott 
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removed a gun from Perry’s belt and gave it to Williams, telling her to get rid of it. Parrott testified that when she removed 

Perry’s gun by the handle, it was not warm.

Williams testified to seeing a man, dressed in black with 

dark skin and a brush haircut, fleeing the scene after Perry’s 

shooting, but she did not know and could not identify Jackson. 

McBride also testified that he saw a man in black firing a gun, 

standing by the bushes located near 4612 Redman Avenue. 

Although McBride did not see the shooter’s face, he stated that 

the shooter wore the same kind of clothing Cooperrider had 

been wearing. McBride confirmed that he had seen Jackson 

with Cooperrider shortly before the shooting.

Jackson’s aunt testified that at 11:19 p.m. on August 31, 

1999, Jackson knocked on her door, entered her home, talked 

with her, and went into her basement around 11:30 p.m. to 

play a video game. Approximately 20 minutes later, Jackson’s 

cousin knocked on the aunt’s bedroom door to get the cordless 

telephone and asked her if she had heard gunshots. She had 

not. Jackson’s aunt and cousin testified that Jackson had stayed 

at the aunt’s home that night.

Officer Harold Scott of the Omaha Police Department 

arrived at the scene of the shooting at approximately 12:30 

a.m. and discovered Perry’s body on the sidewalk in front 

of 4614 Redman Avenue, surrounded by a crowd of people. 

Omaha police officer Stefan Davis, upon nearing the scene of 

the murder, was notified of people who had fled the area. Later, 

Davis received notification that all suspects were in custody. 

Jackson, however, was not arrested until October 9, 1999.

Dr. Jerry Jones, who performed the autopsy, determined 

that Perry died of multiple gunshot wounds that perforated his 

heart, both lungs, liver, spleen, colon, and kidney. Jones testified that he had examined Perry’s body thoroughly and that he 

did not see abrasions on Perry’s head or scalp.

Identical informations were filed against Jackson, 

Cooperrider, and Chillous in Douglas County District Court, 

charging each of them with first degree murder and use of 
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a deadly weapon during the commission of a felony in the 

death of Perry. The cases were consolidated for trial on the 

State’s motion, but the district court subsequently vacated this 

order on the State’s motion. Jackson’s trial, having the lowest docket number, began first, followed by Cooperrider’s and 

Chillous’ trials.

The jury found Jackson guilty of first degree murder, but 

acquitted him of using a deadly weapon to commit a felony. 

Jackson then filed a motion for new trial, claiming that 

Fulton’s testimony regarding Cooperrider and Chillous did not 

have proper foundation, that the jury’s verdict was inconsistent and self-contradictory, that the court addressed the jury 

outside the parties’ presence after the jury retired for deliberations, and that there was insufficient evidence to sustain a 

conviction of first degree murder. The district court overruled 

Jackson’s motion and sentenced him to life imprisonment. 

Further facts surrounding Perry’s shooting are set forth below 

as necessary.

At Cooperrider’s own trial, he testified that he was present at the scene, that he fired his handgun several times in 

self-defense, and that he did not see Jackson at the scene. 

Cooperrider also testified that Jackson was not one of the 

people who shot Perry. Instead, Cooperrider testified that 

Sommerville and one of Sommerville’s friends were present at 

Perry’s shooting. Cooperrider testified that Sommerville wore 

his hair in braids at the time of Perry’s death, in a hairstyle 

similar to Jackson’s. At Chillous’ trial, Cooperrider again testified that Sommerville and a friend of Sommerville’s were present at the scene of Perry’s shooting, but he did not see Jackson 

or anyone else at the scene. Juries acquitted both Cooperrider 

and Chillous.

Stephen Kraft, Cooperrider’s attorney, submitted an affidavit stating that prior to Jackson’s trial, Jackson’s counsel 

contacted Kraft to inform Kraft of his intent to subpoena 

Cooperrider as a witness on Jackson’s behalf for Jackson’s trial. 

Kraft informed Jackson’s counsel that because Cooperrider 
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was awaiting trial on identical charges in the same matter, 

he would not be willing to testify and would invoke his Fifth 

Amendment right against self-incrimination and refuse to testify if called. Jackson served Kraft with a subpoena directing 

Cooperrider’s presence as a witness at Jackson’s trial, but 

Kraft again advised Jackson’s counsel that Cooperrider would, 

if called, invoke his right against self-incrimination.

Jackson filed a second motion for new trial, alleging that 

Cooperrider’s testimony from Cooperrider’s and Chillous’ 

trials provided new evidence that would have changed the 

jury’s verdict in Jackson’s trial. The district court overruled 

Jackson’s motion for new trial, finding that Cooperrider’s 

testimony was not newly discovered, but only newly available—Cooperrider merely controlled the dissemination of his 

testimony for tactical reasons. In its order, the district court 

referred to telephone conversations in which Cooperrider 

discussed coordinating his testimony with Chillous and other 

witnesses testifying at Chillous’ trial. The district court concluded that even if Cooperrider’s testimony had been presented at Jackson’s trial, the jury still heard sufficient evidence to convict Jackson.

In Jackson’s direct appeal, this court rejected his argument 

that the jury’s verdicts were contradictory and inconsistent. We 

concluded that under the aiding and abetting instruction, which 

accurately stated the law and to which Jackson did not object, 

the jury could find that Jackson was guilty of first degree murder while also finding that he “did not personally fire a deadly 

weapon.”5 We also rejected his argument that the evidence was 

insufficient to support his conviction. Jackson contended that 

because investigators had found bullet casings from locations 

that showed Perry was shot from multiple angles and because 

the autopsy showed no bruising or abrasion on Perry’s head, 

Fulton’s account of the crime was not accurate and Fulton 

had changed his testimony. However, we characterized his 

5 Jackson, supra note 1, 264 Neb. at 432, 648 N.W.2d at 292.
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argument as attacking the witnesses’ credibility and rejected it. 

We recited evidence that the location of bullet casings could 

not conclusively prove a gun had been fired from that same 

location, that Perry did have an abrasion under his left eye, and 

that Fulton was sure Jackson had shot Perry.

Finally, we concluded that Cooperrider’s subsequent exculpatory testimony was not newly discovered evidence. Instead, 

it was newly available evidence that did not provide a basis 

for a new trial. We agreed with the Ninth Circuit that allowing 

a new trial so a codefendant could testify after the government could no longer retry the codefendant would encourage 

perjury.6 We also reasoned that Jackson knew Cooperrider’s 

testimony would have been beneficial to him or he would not 

have attempted to secure it. We cited many cases in which 

courts have held that the posttrial testimony of a codefendant 

or coconspirator who refused to testify at the defendant’s trial 

is not newly discovered evidence.7

Postconviction and R

In Jackson’s operative postconviction motion, he sought 

an order vacating the judgment of conviction and sentencing, 

because the orders were void or voidable under the U.S. and 

Nebraska Constitutions. He alleged that his trial attorney was 

ineffective for several reasons, including his failure to object 

to arguments or evidence about gang affiliations and activities. 

6 Jackson, supra note 1, citing U.S. v. Reyes-Alvarado, 963 F.2d 1184 (9th 

Cir. 1992).

7 Id., citing U.S. v. Freeman, 77 F.3d 812 (5th Cir. 1996); U.S. v. 

Theodosopoulos, 48 F.3d 1438 (7th Cir. 1995); U.S. v. Muldrow, 19 F.3d 

1332 (10th Cir. 1994); U.S. v. Dale, 991 F.2d 819 (D.C. Cir. 1993); ReyesAlvarado, supra note 6; State v. Bright, 776 So. 2d 1134 (La. 2000); State 

v. Warren, 592 N.W.2d 440 (Minn. 1999); State v. Redford, 248 Kan. 130, 

804 P.2d 983 (1991); Yarbrough v. State, 57 S.W.3d 611 (Tex. App. 2001); 

State v. Dunlap, 187 Ariz. 441, 930 P.2d 518 (Ariz. App. 1996); State v. 

Jackson, 188 Wis. 2d 187, 525 N.W.2d 739 (Wis. App. 1994). But see, 

U.S. v. Montilla-Rivera, 115 F.3d 1060 (1st Cir. 1997); Totta v. State, 740 

So. 2d 57 (Fla. App. 1999).
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But Jackson’s primary argument was that he was effectively 

sentenced to life without parole for a crime that occurred when 

he was 17 years old and that this sentence was prohibited 

by the Eighth Amendment to the U.S. Constitution and Neb. 

Const. art. I, § 9.

In August 2015, the district court overruled all of Jackson’s 

claims except his request for relief under Miller8 and Mantich.

9

At the postconviction hearing, the court received evidence 

that Jackson was born in October 1981; thus, he was age 17 

years 10 months when Perry was killed on August 31, 1999. 

In October 2015, the court issued an order vacating Jackson’s 

life sentence and scheduled a new sentencing hearing for 

January 2016.

At the January mitigation hearing, Jackson presented the 

testimony of Kayla Pope, who is an attorney, a board-certified 

child and adolescent psychiatrist, and an expert in adolescent 

brain development. A deposition Pope gave in State v. Smith, 

Washington County District Court, No. CRl3-9000001, was 

also received at Jackson’s mitigation hearing.

Pope testified that she was the director for neurobehavioral 

research at Boys Town National Research Hospital and the 

program director for the general psychiatric training program 

at Creighton Medical Center and the University of Nebraska 

Medical Center.

Though she had not met with Jackson, Pope testified generally about brain development and how researchers had learned 

that the brain develops over time, with the last part of the 

brain to develop being the frontal cortex. She said that the prefrontal cortex is the part of the brain that controls impulsivity 

and emotional responses and that it is not fully developed 

in individuals until they reach their mid-20’s. Consequently, 

adolescents are more likely to be impulsive and respond emo -

tionally instead of rationally, especially in an emotionally 

8 See Miller, supra note 2.

9 Mantich, supra note 4.
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charged situation. They often fail to appreciate the consequences of their actions. And because they are seeking to individuate from their parents, adolescents seek approval from 

their peer group, which makes them more susceptible to peer 

influence in their decisionmaking than adults.

Kirk Newring, a licensed psychologist, performed a forensic psychological evaluation of Jackson shortly before Jackson 

reached age 34. In conducting Jackson’s examination, Newring 

attempted to address the following mitigating factors, which 

are set forth in Neb. Rev. Stat. § 28-105.02(2) (Reissue 2016):

(a) The convicted person’s age at the time of the 

offense;

(b) The impetuosity of the convicted person;

(c) The convicted person’s family and community 

environment;

(d) The convicted person’s ability to appreciate the 

risks and consequences of the conduct; [and]

(e) The convicted person’s intellectual capacity[.]

In addition to considering the statutory sentencing factors 

for offenders under age 18, Newring performed a risk assessment for future violence.

During the evaluation, Jackson denied being abused or 

neglected as a child and he said he had a typical childhood 

with a young mother and a strong family. A family friend told 

Newring that Jackson had a mother and stepfather and good 

support growing up but that he got in with the wrong crowd. 

Jackson denied having been in a gang but said that he was 

around gang people. He did not earn any school credits past 

the 8th grade and was expelled from school in the 10th grade. 

At age 17, he was placed at the Youth Rehabilitation and 

Treatment Center in Kearney, Nebraska, after he violated his 

parole for being a minor in possession of a handgun. He apparently violated his parole by being in possession of a stolen 

vehicle. He was paroled in May 1999.

An initial classification report from the Department of 

Correctional Services completed in 2000 stated that Jackson 
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was believed to be involved in bullying other inmates and 

characterized him as evasive, having the potential to “assume 

a negative leadership role” and to continue to be involved in 

altercations with others.

Newring’s report summarized Jackson’s misconduct reports. 

Jackson had approximately 250 misconduct reports as of 

November 5, 2015. Notably, Jackson had several violations 

for drug or intoxicant abuse. Jackson had 25 misconduct 

reports which resulted in a sanction of disciplinary segregation, including threats or fighting, stepping on a staff member’s 

foot, and minor physical contact with staff which was accidental. The majority of Jackson’s misconduct reports occurred 

before reaching age 25. After age 30, he had about 20 misconduct reports. At the mitigation hearing, Newring testified 

that a comparison of the number of misconduct reports during 

Jackson’s first 5 years of incarceration to his most recent 5 

years “suggests maturing.”

Based on psychological testing, Newring found no indications that Jackson suffered from a major mental disorder. 

But Newring diagnosed him as having personality disorders, 

including adjustment disorder with anxiety, cannabis use disorder in a controlled environment, and antisocial personality 

disorder. Newring stated that Jackson will meet the criteria 

for cannabis use disorder until he has demonstrated sobriety 

in a community setting and that he met the criteria for antisocial personality disorder because of his early childhood 

misbehavior, rules violations as an adolescent, and institutional misbehavior as a young adult. He stated that Jackson’s 

improved behavior was consistent with research showing that 

antisocial behavior reduces in an individual’s late 30’s to 

early 40’s.

Newring further noted that since being incarcerated, Jackson 

earned his diploma through the GED program in 2008. Jackson 

also completed several programs, including “Criminal and 

Addictive Thinking I [and II]” on October 7 and December 12, 

2014; “Group Process” on October 2, 2014; “Recovery Issues 
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I [and II]” on October 6 and December 9, 2014; “Within My 

Reach Relationship and Communication Program” on October 

15, 2014; “Relapse Prevention I [and II]” on December 9, 

2014, and February 9, 2015; “Special Issues” on February 10, 

2015; “Long Term Residential Substance Abuse Treatment 

Program” on February 11, 2015; “Most Improved” in the substance abuse unit from December 2014 through February 2015; 

“Psychology of Incarceration” on February 10, 2015; “Character 

& Paradigms Class” in February 2015; and “Common Sense 

Parenting” on April 15, 2015.

After he completed the substance abuse program, Jackson 

was asked to participate as a mentor, because he was a positive 

role model. Although his discharge summary from the program 

stated that he might relapse if released because of his long 

incarceration, his prognosis for recovery was good. He was 

reclassified from maximum custody to medium custody. He 

had earned enough credits for community custody status, but 

that classification was not available for anyone serving a life 

sentence without parole.

Jackson’s IQ was in the average range. A test used to measure academic achievement showed he had reached a 12th 

grade level of performance or higher in all areas.

Newring noted that Jackson now had strong ties with his 

family members, who were supportive of him. He believed 

that Jackson’s recent sobriety, employment experience with 

the Department of Correctional Services, and family ties were 

strengths for him. He found it unlikely that Jackson would 

“re-experience that context that led to his crime of conviction,” because he no longer abused drugs or wanted to impress 

his peers “in the thug life.” He concluded that Jackson presented a low risk for future acts of violence. At the end of this 

hearing, the court ordered a presentence investigation report 

and scheduled the sentencing hearing for April 2016.

During the sentencing hearing, the court received as an 

exhibit a sentencing brief with attachments from Jackson’s 

attorney. Many of the attachments were letters of support to the 
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judge from Jackson’s friends and family members. One letter 

was from a man who had taught a “self-betterment cognitive 

restructuring” class that Jackson had participated in. He said 

he had known Jackson for 3 years and that when the class was 

over, he asked Jackson to assist as a lay instructor. He said 

Jackson had demonstrated considerable willingness to improve 

himself and had used his time and abilities to help other 

inmates with decisionmaking and conflict resolution.

Some of the attachments were copies of other resentencing 

orders for different adolescent offenders or newspaper stories 

about them. Another attachment was a report by the Violence 

Policy Center that analyzed 2011 data on black homicide victimization. The report showed that for 2011, the national black 

homicide victimization rate was 17.51 per 100,000. “For that 

year, Nebraska ranked first as the state with the highest black 

victimization rate. Its rate of 34.43 per 100,000 was nearly 

double the national average . . . .” There were 30 black homicide victims in Nebraska that year. A report by the Department 

of Health and Human Services showed that in Nebraska, homicide was the leading cause of death for African-Americans 

who were between the ages of 15 and 34. Attached news 

reports showed that three of the other individuals alleged to be 

involved in Perry’s murder had been killed. Chillous was killed 

in a 2005 shooting. Later that year, Cooperrider was killed in 

a shooting. In 2010, Sommerville was killed in a shooting, 

McBride was sentenced to prison for possession of cocaine 

with intent to distribute, and Fulton was sentenced to prison 

for first degree assault. In 2014, Fulton was again sentenced to 

prison for weapon offenses.

Jackson’s attorney argued that the court should rely on the 

bill of exceptions from Jackson’s trial and not police reports 

in the presentence investigation report, because Jackson’s 

codefendants had testified inconsistently with their police 

statements and had been impeached on that basis. Jackson 

argued that two relevant considerations for resentencing were 

that the jury had found he did not fire a weapon and that he 
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had necessarily been convicted of aiding and abetting two 

principals who were acquitted. He argued that Fulton never 

identified Jackson as a participant until he saw him sitting 

with his two codefendants at the preliminary hearing and that 

Sommerville had a hairstyle that was similar to Jackson’s when 

Perry was killed.

Jackson’s attorney argued that under Miller and Montgomery, 

the court had to consider Jackson’s level of participation in 

Perry’s killing and that he had not personally killed anyone. 

He also argued that Jackson had grown up in “horrific, crimeproducing settings” that were “especially dangerous for young 

black males.” He argued that as an adolescent, Jackson was 

very vulnerable to negative influences and pressures. He stated 

he had not asked Jackson to take responsibility and express 

remorse for the murder because he believed that Jackson was 

innocent and that sometimes innocent people are convicted. 

He asked the court not to hold Jackson’s claim of innocence 

against him in light of Cooperrider’s and Chillous’ acquittals. 

He argued that Jackson’s demonstrated capacity for change was 

a relevant consideration for resentencing under Montgomery. 

Jackson made a personal statement to underscore the negative influence of his early environment on his bad behaviors 

and his later ability to take responsibility for improving himself and helping others. He explained the support network he 

would have upon release and asked for a meaningful chance 

for parole.

Jackson’s attorney distinguished the facts of other cases in 

which the court had resentenced an adolescent offender to a 

lengthy term of imprisonment. For example, he pointed out 

that unlike Jackson, the offender in Mantich was convicted of 

using a weapon to commit a felony. He recommended that the 

court resentence Jackson to a term of 40 to 50 years’ imprisonment with credit for time served. This sentence would have 

resulted in Jackson’s serving another 31⁄2 years before he was 

eligible for parole and another 81⁄2 years before his mandatory discharge.
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The State argued that this court had held the evidence was 

sufficient to support Jackson’s conviction for first degree murder and that this conviction was the crime for which Jackson 

was being resentenced. The deputy county attorney emphasized that his guilt was not at issue. She focused on Fulton’s 

testimony that he had no doubt Jackson had shot Perry and 

that Jackson had hit Perry in the head first. She stressed that 

Jackson had left the scene and returned with a gun. And she 

argued that the court had to consider Jackson’s age when Perry 

was killed, because he was only “a couple months away from 

not receiving the benefit of Alabama v. Miller.” She argued 

that most of the accolades Jackson had received while incarcerated occurred after Miller was issued and that even after 

Miller, he had received 22 misconduct reports. She argued that 

Newring had also assessed adolescent offenders to have a low 

risk of future violence in two other cases and that he “always 

considered the defendant’s version of the facts rather than the 

facts in the record.”

The court stated from the bench that except “for about 49 

days, we wouldn’t even be here” and thus Jackson would not 

have had a chance at parole. It set out the statutory factors that 

it must consider, including the “person’s age, the impetuosity 

of the convicted person, the defendant’s family [and] community environment, his ability to appreciate the risks and 

consequences of the conduct, [and] the convicted person’s 

intellectual capacity,” as well as the report Newring prepared 

for the court.

The court did not restate the facts of the crime or Jackson’s 

level of participation in the crime. It distinguished the resentencing of the defendant in Mantich and another offender, 

because those crimes involved random acts of violence and 

a “chance encounter with evil.” The court went on to state, 

“But we still have a person here who is dead, and your client, the defendant, was convicted of his murder, and so I think 

anything but a substantial period of incarceration would be 

inappropriate.” The court stated that it had crafted a sentence 
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that would allow Jackson to work toward a future release 

after a substantial additional period of incarceration. It resentenced Jackson to 60 to 80 years’ imprisonment with credit 

for the 6,044 days that he had served. The court calculated 

that Jackson would be eligible for parole in about 131⁄2 years. 

Jackson timely appealed.

ASSIGNMENT OF ERROR

Jackson assigns that the district court abused its discretion 

in imposing an excessive sentence because it failed to properly 

consider the applicable legal principles.

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.10 A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just 

results in matters submitted for disposition.11

ANALYSIS

[3,4] In State v. Nollen,

12 we set forth the law on the sentencing of juvenile offenders. We noted that in Graham v. Florida,

13

the U.S. Supreme Court held that it is unconstitutional for a 

State to impose a sentence of life imprisonment without parole 

on a juvenile convicted of a nonhomicide offense and that the 

Constitution required that those juveniles be given “‘some 

meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’”14

10 State v. Mantich, 295 Neb. 407, 888 N.W.2d 376 (2016).

11 Id.

12 State v. Nollen, 296 Neb. 94, 892 N.W.2d 81 (2017).

13 Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 

(2010).

14 Nollen, supra note 12, 296 Neb. at 118, 892 N.W.2d at 97, quoting 

Graham, supra note 13.
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[5,6] We also noted that in Miller,

15 the Court declined to 

extend a categorical bar of no life-without-parole sentences 

to juveniles convicted of homicide. Instead, the U.S. Supreme 

Court held that a sentencer must “‘take into account how children are different, and how those differences counsel against 

irrevocably sentencing them to a lifetime in prison.’”16

[7] The U.S. Supreme Court, in Montgomery v. Louisiana, 

held that the prohibition in Miller of mandatory life imprisonment without parole for juvenile offenders announced a new 

substantive rule.17 The Court further held that when a new 

substantive rule of constitutional law controls the outcome of 

a case, the federal Constitution requires state collateral review 

courts to give retroactive effect to that rule.18

As a result of the Miller holding, our Legislature amended 

Nebraska’s sentencing laws for juveniles convicted of first 

degree murder.19 The new sentencing statute mandates that 

juveniles convicted of first degree murder are to be sentenced 

to a “maximum sentence of not greater than life imprisonment and a minimum sentence of not less than forty years’ 

imprisonment.”20 In determining the sentence, the sentencing judge must “consider mitigating factors which led to 

the commission of the offense.”21 Section 28-105.02(2) sets 

forth a nonexhaustive list of mitigating factors for the court 

to consider.

The crux of Jackson’s argument is that Miller and 

Montgomery require resentencing courts to consider the circumstances of the offense and the extent of the defendant’s 

15 See Miller, supra note 2.

16 Nollen, supra note 12, 296 Neb. 118, 892 N.W.2d at 97, quoting Miller, 

supra note 2.

17 Montgomery, supra note 3.

18 Id.

19 See § 28-105.02.

20 § 28-105.02(1).

21 § 28-105.02(2).
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participation, the defendant’s immaturity and vulnerability 

to negative influences at the time of the offense, and the 

defendant’s maturation and rehabilitation since the time of 

the offense.

[8] As we stated in Nollen, a juvenile offender convicted 

of a homicide offense may be sentenced to life imprisonment 

without parole so long as the sentencer considered specific, 

individualized factors before handing down that sentence.22

Here, Jackson was not sentenced to life imprisonment without 

parole, but to imprisonment for a term of years that allows for 

parole eligibility.

Furthermore, the record indicates that a full mitigation hearing was held prior to sentencing at which both the State 

and Jackson were given an opportunity to present evidence. 

The sentencing court heard from two witnesses called by 

Jackson and received numerous exhibits offered by Jackson. 

The court also ordered a presentence investigation, which gave 

Jackson the ability to present his own written statement as 

well as various reference letters from his family, friends, and 

acquaintances.

During the sentencing hearing, the district court stated that 

it had to consider the fact that a jury convicted the defendant of murder in the first degree. However, the court also 

stated that it had to consider the mitigating factors set forth in 

§ 28-105.02(2), as well as the psychological evaluation completed by Newring. As a result, we conclude that Jackson’s 

sentence does not violate Miller and that therefore, Jackson’s 

lone assignment of error is without merit.

Jackson further argues that the district court erred because 

it did not consider and make findings concerning (1) the 

circumstances of the offense and the extent of Jackson’s participation, (2) Jackson’s immaturity at the time of the offense, 

(3) Jackson’s vulnerability to negative influences at the time 

22 Nollen, supra note 12.
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of the offense, and (4) Jackson’s demonstrated maturity and 

rehabilitation since the time of the offense.

However, in State v. Mantich, we held that there was 

no language in Miller, nor anything in our case law or in 

§ 28-105.02, that would require specific factfinding at sentencing.23 We further held that “the Legislature has set forth 

the sentencing procedure applicable to juveniles who have 

committed homicide offenses.”24 “That procedure is consistent 

with Miller and with the Eighth Amendment as it is currently 

interpreted by the U.S. Supreme Court.”25

[9] The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observations of the defendant’s demeanor and attitude and all of the 

facts and circumstances surrounding the defendant’s life.26

As a result, upon our review of the record, we conclude that 

Jackson’s sentence was in accordance with both Miller and 

§ 28-105.02 and therefore find Jackson’s additional arguments 

to be without merit.

CONCLUSION

The sentence of the district court is affirmed.

Affirmed

23 Mantich, supra note 10.

24 Id. at 418, 888 N.W.2d at 384.

25 Id.

26 Nollen, supra note 12.