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STATE v. RUSSELL

Cite as 291 Neb. 33

State of Nebraska, appellee, v.

Cory L. Russell, appell

___ N.W.2d ___

Filed June 5, 2015. No. S-14-927.

1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an 

independent conclusion irrespective of the determination made by the 

court below.

2. Pleas: Appeal and Error. A trial court is given discretion as to whether 

to accept a guilty plea, and an appellate court will overturn that decision 

only where there is an abuse of discretion.

3. Sentences: Sexual Assault. For purposes of the authorized limits of 

an indeterminate sentence under Neb. Rev. Stat. § 29-2204(1)(a)(ii)(A) 

(Cum. Supp. 2014), both “mandatory minimum” as used in Neb. Rev. 

Stat. § 28-319.01(2) (Cum. Supp. 2014) and “minimum” as used in 

Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014) in regard to a Class IB 

felony mean the lowest authorized minimum term of the indeterminate sentence.

4. Sentences: Probation and Parole. A person convicted of a felony 

for which a mandatory minimum sentence is prescribed is not eligible 

for probation.

5. Sentences. Good time reductions do not apply to mandatory minimum sentences.

6. Sentences: Probation and Parole: Sexual Assault. The mandatory 

minimum required by Neb. Rev. Stat. § 28-319.01(2) (Cum. Supp. 2014) 

affects both probation and parole.

7. Pleas. In order to support a finding that a plea of guilty or no contest 

has been entered freely, intelligently, voluntarily, and understandingly, 

among other requirements the record must establish that the defendant knew the range of penalties for the crime with which he or she 

is charged.

8. Statutes: Presumptions: Legislature: Intent: Appeal and Error. In 

construing a statute, appellate courts are guided by the presumption 
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that the Legislature intended a sensible rather than absurd result in 

enacting the statute.

9. Sentences: Sexual Assault. The range of penalties for sexual assault 

of a child in the first degree, first offense, under Neb. Rev. Stat. 

§ 28-319.01(2) (Cum. Supp. 2014), is 15 years’ to life imprisonment.

10. Sentences. A court’s failure to advise a defendant of the correct statutory minimum and maximum penalties does not automatically warrant reversal.

11. Sentences: Probation and Parole. In the event of a discrepancy 

between the statement of the minimum limit of a sentence and the statement of parole eligibility, the statement of the minimum limit controls 

the calculation of an offender’s term.

12. Sentences. The meaning of a sentence is, as a matter of law, determined 

by the contents of the sentence itself.

13. Judges: Sentences: Probation and Parole. A trial judge’s incorrect 

statement regarding time for parole eligibility is not part of the sentence 

and does not evidence ambiguity in the sentence imposed.

Appeal from the District Court for Colfax County: Mary C.

Gilbride, Judge. Affirmed.

Bryan C. Meismer for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Wright, Connolly, Stephan, 

Miller-Lerman, and Cassel,

Cassel, J

INTRODUCTION

Cory L. Russell appeals from his plea-based conviction and 

sentence for sexual assault of a child in the first degree. He 

argues that because he was not correctly advised of the 15-year 

“mandatory minimum,” his plea was not entered knowingly. 

To resolve the appeal, we (1) explain the distinction, in this 

context, between “minimum” and “mandatory minimum”; (2) 

determine the correct range of penalties; (3) conclude that the 

error was not prejudicial; and (4) describe why the different 
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good time calculation for a “mandatory minimum” does not 

affect the validity of the plea.

BACKGROUND

The controlling statute states, “Sexual assault of a child in 

the first degree is a Class IB felony with a mandatory minimum 

sentence of fifteen years in prison for the first offense.”1 The 

general statute prescribing the range of penalties for a Class IB 

felony specifies a “[m]inimum” of 20 years’ imprisonment and 

a “[m]aximum” of life imprisonment.2

The State filed an information charging Russell with 27 

counts of sexual assault of a child in the first degree. Pursuant 

to a plea agreement, the State agreed to file an amended information charging Russell with only one count of that offense 

in return for Russell’s plea of no contest to the charge. The 

amended information did not allege that Russell had any 

prior convictions.

Prior to accepting Russell’s plea, the district court advised 

Russell that the crime “carries a minimum of 20 years[’] incarceration and a maximum of life.” The court accepted Russell’s 

plea of no contest and adjudged him guilty of sexual assault of 

a child in the first degree.

At the sentencing hearing, the district court stated that the 

offense carried “a mandatory minimum of at least 20 years.” 

The court imposed a sentence of 40 to 50 years’ imprisonment. 

The court advised Russell that he “must serve 20 years, less 

332 days served on the minimum term before you would be 

eligible for parole, and 25 years, less 332 days served on the 

maximum term before mandatory release.”

Russell timely appealed, and we moved the case to our 

docket under our statutory authority to regulate the caseloads 

of the appellate courts of this state.3

1 Neb. Rev. Stat. § 28-319.01(2) (Cum. Supp. 2014).

2 See Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014).

3 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
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ASSIGNMENT OF ERROR

Russell assigns that the district court erred by not properly 

advising him of the crime’s range of penalties prior to the 

acceptance of his plea.

STANDARD OF REVIEW

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

which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the 

court below.4

[2] A trial court is given discretion as to whether to accept 

a guilty plea, and an appellate court will overturn that decision 

only where there is an abuse of discretion.5

ANALYSIS

Meaning of “Mandatory M

In order to address Russell’s assignment of error, we must 

determine the specific meaning of the phrase “mandatory 

minimum sentence” in § 28-319.01(2). From one context to 

another, the meaning of the term “mandatory minimum” can 

vary. In some instances, it may be a term of art, while in 

other circumstances, it may be used only in the general sense 

of the two words. For example, a “minimum” prescribed by 

§ 28-105 can be described as “mandatory” in the sense that a 

judge is not authorized to impose an indeterminate sentence of 

imprisonment having a minimum term which is less than the 

statutorily authorized minimum sentence.6 We have previously 

stated that a court must advise a defendant of any mandatory 

minimum sentence that will apply.7 But in none of those cases 

were we faced with a “mandatory minimum sentence” in the 

4 State v. Covey, 290 Neb. 257, 859 N.W.2d 558 (2015).

5 State v. Williams, 276 Neb. 716, 757 N.W.2d 187 (2008).

6 See Neb. Rev. Stat. § 29-2204(1)(a)(ii) (Cum. Supp. 2014).

7 See, e.g., State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 (2002); State v. 

Spiegel, 239 Neb. 233, 474 N.W.2d 873 (1991); State v. Stastny, 223 Neb. 

903, 395 N.W.2d 492 (1986).
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sense that the only consequences were to prohibit probation 

eligibility and to deny any good time prior to service of the 

mandatory minimum term. Those consequences did not exist in 

statute for a felony offense until 1995.8 Thus, we must explain 

the differences and similarities between the terms in the specific statutes before us.

[3] For purposes of the authorized limits of an indeterminate sentence under § 29-2204(1)(a)(ii)(A), both “mandatory 

minimum” as used in § 28-319.01(2) and “minimum” as used 

in § 28-105 in regard to a Class IB felony mean the lowest 

authorized minimum term of the indeterminate sentence. Thus, 

in that sense, there is no difference between the two.

But the Legislature has prescribed different consequences 

regarding probation and parole, depending upon whether the 

bottom end of a sentence is a “minimum” or a “mandatory 

minimum.” Under current law regarding the specific statutes 

before us, there are two significant differences between a 

“minimum” and a “mandatory minimum.”

[4] First, a court cannot place the convicted offender on 

probation. We have said that whether probation or incarceration is ordered is a choice within the discretion of the trial 

court, whose judgment denying probation will be upheld in 

the absence of an abuse of discretion.9 Thus, with respect to 

the “minimum” required for a Class IB felony under § 28-105, 

a court is generally authorized to suspend the sentence and 

impose a term of probation.10 But a person convicted of a 

felony for which a mandatory minimum sentence is prescribed 

is not eligible for probation.11 Because § 28-319.01(2) imposes 

a mandatory minimum of 15 years’ imprisonment for sexual 

assault of a child in the first degree, a sentence to probation is 

not authorized.

8 See 1995 Neb. Laws, L.B. 371, §§ 2 and 21.

9 State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).

10 See, generally, Neb. Rev. Stat. § 29-2262 (Cum. Supp. 2014); State v. 

Hylton, 175 Neb. 828, 124 N.W.2d 230 (1963).

11 § 28-105(4).
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[5] The second consequence is that the offender will not 

receive any good time for the entire duration of the mandatory 

minimum. Good time reductions do not apply to mandatory 

minimum sentences.12 This has consequences for the good 

time calculations for both the minimum and maximum terms 

of an indeterminate sentence. We have held that in calculating parole eligibility, a defendant must serve the mandatory 

minimum plus one-half of any remaining minimum sentence 

before becoming eligible for parole.13 Thus, where the court 

sentences an offender to a minimum term equal to the applicable mandatory minimum, the offender becomes eligible for 

parole only after serving the full mandatory minimum. And 

we have determined that good time credit cannot be applied 

to the maximum term of an indeterminate sentence before 

the mandatory minimum sentence has been served.14 Thus, 

in calculating mandatory release, a defendant must serve the 

mandatory minimum plus one-half of any remaining maximum sentence.15

[6] Therefore, under our current statutes, the mandatory minimum required by § 28-319.01(2) affects both probation and 

parole. Probation is not authorized in sentencing an offender 

for sexual assault of a child in the first degree. And good time 

credit cannot be allowed until the full amount of the mandatory 

minimum term of imprisonment has been served. The designation of the minimum as “mandatory” in § 28-319.01(2) does 

not affect the range of penalties, but the statute’s specification 

of a different minimum does.

Range of Pena

[7] Long ago, we articulated that in order to support a 

finding that a plea of guilty or no contest has been entered 

12 See Neb. Rev. Stat. § 83-1,110 (Reissue 2014).

13 See State v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012).

14 See Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (2002).

15 See State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), disapproved 

on other grounds, State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
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freely, intelligently, voluntarily, and understandingly, among 

other requirements the record must establish that the defendant 

knew the range of penalties for the crime with which he or 

she is charged.16 Russell challenges his plea because he was 

not advised of the mandatory minimum sentence of 15 years’ 

imprisonment required by § 28-319.01(2).

But the parties do not agree upon the correct range of 

penalties. Russell contends that the range is 20 years’ to life 

imprisonment, of which the first 15 years are “mandatory.” 

The State argues that the range is 15 years’ to life imprisonment and that the entire minimum term is mandatory. Thus, 

we must first determine whether the range of penalties is 

20 years’ to life imprisonment or imprisonment of 15 years 

to life.

We have not explicitly enunciated the range of penalties for 

sexual assault of a child in the first degree under § 28-319.01. 

Most recently, in State v. Lantz,

17 we reviewed sentences of 15 

to 25 years’ imprisonment, but we focused only on whether the 

mandatory minimum required that the sentences be served consecutively. Some of our language in State v. Fleming18 could 

be interpreted to mean that the minimum sentence is 20 years 

in prison, of which 15 years must be served before becoming 

eligible for parole. But other language in the opinion is consistent with a minimum term of 15 years. Notably, we did not 

expressly state that the 20-year minimum sentence imposed by 

the court was the most lenient authorized by statute. We have 

yet to expressly opine on this precise issue.

The Nebraska Court of Appeals, however, has overtly determined that the minimum penalty for sexual assault of a child 

in the first degree is 15 years. In State v. Lantz,

19 the trial 

court imposed sentences of imprisonment of 15 to 25 years 

16 See State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986).

17 State v. Lantz, supra note 15.

18 State v. Fleming, 280 Neb. 967, 792 N.W.2d 147 (2010).

19 State v. Lantz, 21 Neb. App. 679, 842 N.W.2d 216 (2014), disapproved in 

part on other grounds, State v. Lantz, supra note 15.
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for each of the three counts of sexual assault. On appeal, the 

State argued that the sentences were not within the statutory 

sentencing range, because the sentencing statutes required the 

minimum portion of the sentence to be 20 years’ imprisonment, 

of which 15 years was a mandatory minimum sentence not 

subject to good time. The Court of Appeals disagreed, relying 

upon the principle that to the extent there is a conflict between 

two statutes, the specific statute controls over the general statute. The court reasoned:

In this circumstance, the Legislature has made a specific 

provision that the offense of first-offense first degree 

sexual assault of a child, even though classified as a 

Class IB felony, carries a mandatory minimum sentence 

of 15 years’ imprisonment. This specific statute controls 

over the general statute regarding sentences providing for 

a 20-year minimum term of imprisonment.20

The Court of Appeals’ resolution was consistent with its determination in a prior case that a sentence of 15 to 15 years’ 

imprisonment for first degree sexual assault of a child was the 

most lenient sentence of imprisonment that could be imposed 

for the conviction.21

[8] To hold otherwise could lead to absurd results. For 

example, a person found guilty of sexual assault of a child 

in the first degree and who had previously been convicted of 

the same crime would be guilty of a Class IB felony with a 

mandatory minimum sentence of 25 years in prison.22 In that 

instance, although the crime would remain a Class IB felony, 

the court supposedly would be permitted to impose a minimum 

term of years less than the mandatory minimum. In construing a statute, appellate courts are guided by the presumption 

that the Legislature intended a sensible rather than absurd 

20 Id. at 704, 842 N.W.2d at 236-37.

21 See State v. Kays, 21 Neb. App. 376, 838 N.W.2d 366 (2013), affirmed on 

other grounds 289 Neb. 260, 854 N.W.2d 783 (2014).

22 See § 28-319.01(3).
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result in enacting the statute.23 This requires that we reject 

Russell’s interpretation.

[9] We explicitly hold that the range of penalties for sexual 

assault of a child in the first degree, first offense, under 

§ 28-319.01(2), is 15 years’ to life imprisonment. Because the 

lower limit is a mandatory minimum, probation is not an authorized sentence for the offense and no good time is accrued until 

the full mandatory minimum term has been served.

Erroneous Advis

The district court erroneously advised Russell of the lower 

end of the range of penalties. The court informed Russell that 

the minimum sentence was 20 years rather than 15 years. But 

this erroneous advisement does not necessitate reversal.

[10] A court’s failure to advise a defendant of the correct 

statutory minimum and maximum penalties does not automatically warrant reversal. In State v. Rouse,

24 we rejected the 

concept that the standards for advisement were per se rules, 

where a failure to technically comply would mandate an automatic reversal. We instead said, “If it can be determined that 

the defendant understood the nature of the charge, the possible 

penalty, and the effect of his plea, then there is no manifest 

injustice that would require that the defendant be permitted to 

withdraw his plea.”25 In that case, the court did not inform the 

defendant of the statutory maximum and minimum penalties 

for second degree murder. However, the defendant was aware 

of the plea arrangements between his counsel and the prosecution and that he would have the opportunity to withdraw 

his plea if the sentence imposed was not between 16 and 20 

years in prison. We concluded that the defendant received the 

sentence that he had bargained for and that any error on the 

part of the trial judge in failing to inform the defendant of the 

statutory penalty did not prejudice the rights of the defendant 

23 State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (2012).

24 State v. Rouse, 206 Neb. 371, 293 N.W.2d 83 (1980).

25 Id. at 375-76, 293 N.W.2d at 86.
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or result in manifest injustice. Without more, the technical failure of the trial judge to inform the defendant of the statutory 

penalties was not enough for reversal.

We also found no prejudice in a case where a defendant was 

advised of a lower maximum penalty than that mandated by 

statute. In State v. Jipp,

26 the defendant was advised that the 

maximum penalty was 20 years’ imprisonment when the actual 

maximum penalty was 50 years’ imprisonment. We observed 

that the defendant was advised that the minimum penalty was 

1 year and that he was sentenced to 1 year. We stated that the 

effect of State v. Rouse27 “was to hold that if a defendant was 

sentenced within the term described by the trial court, prejudice is not then apparent on the face of the record.”28

Russell suffered no prejudice as a result of the erroneous 

advisement. His sentence of 40 to 50 years’ imprisonment 

was within the statutory range of penalties. It was also within 

the range of penalties articulated by the district court. It is 

inconceivable that Russell would plead no contest after being 

advised of a 20-year minimum sentence but would not have 

entered such a plea if he were properly informed that the minimum sentence was 15 years. This is particularly true where 

Russell faced 27 counts of sexual assault of a child in the first 

degree before the State agreed to dismiss 26 counts in return 

for Russell’s plea of no contest. The notion that Russell would 

not have pled no contest but for the erroneous advisement 

regarding the minimum penalty strains credulity. Russell’s 

counsel admitted as much at oral argument.

Characterization 

“Mandatory Mini

The statutory characterization of the minimum penalty as a 

mandatory minimum does not change our analysis. As we have 

explained, the addition of the word “mandatory” to “minimum” 

26 State v. Jipp, 214 Neb. 577, 334 N.W.2d 805 (1983).

27 State v. Rouse, supra note 24.

28 State v. Jipp, supra note 26, 214 Neb. at 579, 334 N.W.2d at 806-07.
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in § 28-319.01(2) had the effect of removing eligibility for 

probation and denying accrual of good time prior to service 

of the first 15 years of any minimum term. But the addition 

of the word “mandatory” did not affect the range of penalties. 

Rather, the special minimum established in § 28-319.01(2) for 

this offense superseded the minimum provided for Class IB 

felonies in § 28-105. In other words, it was the designation of 

a specific minimum in § 28-319.01(2) for sexual assault of a 

child in the first degree that affected the range of penalties; the 

additional word “mandatory” did not do so.

Federal sentencing law supports our decision. Our previous 

statements concerning advising a defendant of the mandatory 

minimum sentence on a charge derived from standard 1.4 of 

the ABA Standards Relating to Pleas of Guilty (Approved 

Draft 1968).29 And that statement is consistent with the Federal 

Rules of Criminal Procedure, which require that a defendant 

be advised of “any mandatory minimum penalty.”30 The purpose of the rule is “to insure that a defendant knows what 

minimum sentence the judge MUST impose and what maximum sentence the judge MAY impose.”31 Nonetheless, the 

U.S. Supreme Court, citing Fed. R. Crim. P. 11, stated in a 

parenthetical that “federal courts generally are not required 

to inform defendant about parole eligibility before accepting 

guilty plea.”32 It follows that the term “mandatory minimum 

penalty” as used in the ABA standards and the Federal Rules 

of Criminal Procedure does not refer to parole eligibility, but, 

rather, refers to the low end of the range of punishments for 

a charged offense. One federal circuit court has explicitly 

29 See, e.g., State v. Clark, 217 Neb. 417, 350 N.W.2d 521 (1984); State v. 

Lewis, 192 Neb. 518, 222 N.W.2d 815 (1974). See, also, State v. Irish, 

supra note 16 (Shanahan, J., dissenting; Krivosha, C.J., and White, J., 

join) (citing successor standard, standard 14-1.4 of ABA Standards for 

Criminal Justice (2d ed. 1980)).

30 Fed. R. Crim. P. 11(b)(1)(I).

31 Fed. R. Crim. P. 11, advisory committee notes on 1974 amendments.

32 Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).
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stated that “‘penalty’ means the statutory nominal sentence 

and not actual time in prison after credit for good behavior 

and parole.”33

Clearly, Russell’s argument depends solely upon the consequences of a mandatory minimum for accrual of good time. 

He makes no claim that he would have been considered for a 

sentence of probation. As Russell explained, “After the math 

is done, the difference [is] between what the [district court] 

advised and [s]entenced (40 years, 20 with good time) and 

what Nebraska [l]aw mandates (40 years, 27.5 with good 

time) . . . .”34 In other words, he is arguing about the effect 

of the mandatory minimum only on his good time, which the 

district court described as part of its “truth-in-sentencing” 

pronouncements.35

The district court stated, “Assuming that [Russell] loses 

none of the good time for which he becomes eligible, [he] 

must serve 20 years, less 332 days served, on the minimum 

term before obtaining parole eligibility, and must serve 25 

years, less 332 days served, on the maximum term, before 

obtaining mandatory release.” The State, in effect, concedes 

that these advisements were incorrect. But the State argues 

that truth-in-sentencing advisements are not required until a 

sentence is pronounced and that, thus, the incorrect truth-insentencing advisements did not affect the validity of Russell’s 

plea. We agree.

[11-13] As the Court of Appeals has explained, § 29-2204 

plainly provides that in the event of a discrepancy between 

the statement of the minimum limit of the sentence and the 

statement of parole eligibility, the statement of the minimum 

limit controls the calculation of the offender’s term.36 The 

meaning of a sentence is, as a matter of law, determined by 

33 United States v. Garcia, 698 F.2d 31, 33 (1st Cir. 1983).

34 Brief for appellant at 1.

35 See § 29-2204(1)(b) and (c).

36 See State v. Glover, 3 Neb. App. 932, 535 N.W.2d 724 (1995).
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the contents of the sentence itself.37 A trial judge’s incorrect 

statement regarding time for parole eligibility is not part of 

the sentence and does not evidence ambiguity in the sentence 

imposed.38 Section 29-2204 provides the same rule regarding 

any conflict between the statement of maximum limit of the 

sentence and the advisement of mandatory release—the former controls.

CONCLUSION

In the context of § 28-319.01(2), the term “mandatory minimum” differs from a “minimum” only in that probation is not 

authorized and no good time credit accrues until after the full 

amount of the mandatory minimum has been served. The lowest authorized minimum term of an indeterminate sentence for 

sexual assault of a child in the first degree, first offense, under 

§ 28-319.01(2) is 15 years’ imprisonment. Thus, the range of 

penalties for that offense is 15 years’ to life imprisonment. 

The district court incorrectly advised Russell that the range 

of penalties was 20 years’ to life imprisonment. But the error 

was not prejudicial and did not affect the validity of Russell’s 

plea. The sentence imposed of 40 to 50 years’ imprisonment 

was within both the authorized statutory range and the advisement of the range given to Russell. There was no prejudice 

from the incorrect advisement. Russell’s actual complaint is 

that the truth-in-sentencing advisements were incorrect. But 

§ 29-2204 plainly states that the pronounced terms of imprisonment prevail over any conflict with the truth-in-sentencing 

advisements. We therefore affirm the judgment of the district court.

Affirme

37 State v. McNerny, 239 Neb. 887, 479 N.W.2d 454 (1992).

38 See State v. Glover, supra note 36.