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STATE v. CLEMENS

Cite as 300 Neb. 601

State of Nebraska, appellee, v.

Nathan W. Clemens, appella

___ N.W.2d ___

Filed July 27, 2018. No. S-17-872.

1. 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.

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. Statutes: Appeal and Error. Statutory interpretation presents a question 

of law, which an appellate court reviews independently.

4. Pleas. To support a plea of guilty or no contest, the record must establish 

that (1) there is a factual basis for the plea and (2) the defendant knew 

the range of penalties for the crime with which he or she is charged.

5. Pleas: Effectiveness of Counsel. When a court accepts a defendant’s 

plea of guilty or no contest, the defendant is limited to challenging 

whether the plea was understandingly and voluntarily made and whether 

it was the result of ineffective assistance of counsel.

6. Pleas. A sufficient factual basis is a requirement for finding that a plea 

was entered into understandingly and voluntarily.

7. Statutes. Statutory language is to be given its plain and ordinary 

meaning.

8. Statutes: Legislature: Intent: Appeal and Error. An appellate court 

will not look beyond a statute to determine the legislative intent when 

the words are plain, direct, or unambiguous.

9. 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 

Nebraska Supreme Court Online Library

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

09/21/2018 09:10 AM CDT
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best achieves that purpose, rather than a construction which would 

defeat it.

10. Convicted Sex Offender: Jurisdiction: States. Under Neb. Rev. Stat. 

§ 29-4003(1)(a)(iv) (Reissue 2016), whether one is “required to register as a sex offender” in another jurisdiction is determined under the 

laws of the other jurisdiction rather than under Nebraska law. Section 

29-4003(1)(a)(iv) adds no additional requirement that registration in the 

other jurisdiction must be based on a “conviction” or an offense that 

would have required the person to register in Nebraska if the offense had 

been committed in Nebraska.

11. ____: ____: ____. A sex offender registrant’s actual registration 

under another jurisdiction’s law is conclusive evidence that the registrant was required to register within the meaning of Neb. Rev. Stat. 

§ 29-4003(1)(a)(iv) (Reissue 2016).

Appeal from the District Court for Lancaster County: Joh

A. Colborn, Judge. Affirme

Joseph D. Nigro, Lancaster County Public Defender, Todd 

Molvar, and Sarah L. Burghaus, Senior Certified Law Student, 

for appellant.

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

Vincent for appellee.

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

Papik, JJ., and Hall, District Judg

Miller-Lerman,

NATURE OF CASE

Nathan W. Clemens appeals his plea-based conviction and 

sentence in the district court for Lancaster County for attempted 

violation of Nebraska’s Sex Offender Registration Act (SORA). 

He claims that the district court committed plain error when it 

accepted the factual basis for the plea and sentenced him. We 

affirm Clemens’ conviction and sentence.

STATEMENT OF FACTS

In August 2016, Clemens was taken into custody by a 

Lancaster County sheriff’s deputy following a disturbance 
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in a bar. As a result of conducting a background check on 

Clemens, the deputy determined that Clemens was registered 

as a sex offender in Colorado; that he was still required to 

be registered in Colorado; and that he had last registered in 

Colorado on January 14, 2016, with an Aurora, Colorado, 

address. Further investigation indicated that Clemens had been 

living and working in Nebraska since June 2016, but that he 

had never registered as a sex offender in Nebraska. The State 

charged Clemens with a violation of SORA under Neb. Rev. 

Stat. § 29-4011(1) (Reissue 2016) based on his failure to register within 3 working days after entering Nebraska, as required 

by Neb. Rev. Stat. §§ 29-4003(1)(a)(iv) and 29-4004(1) 

(Reissue 2016).

As part of a plea agreement, the State amended the charge 

to attempted violation of SORA, and on June 5, 2017, Clemens 

pled guilty to the amended charge. At the plea hearing, the 

State set forth a factual basis which included, inter alia, the 

following: that Clemens “was a registered sex offender in 

Colorado”; that “on February 18th of 1999, [he] was found 

to have committed the offense of sexual assault of a child” 

in Colorado; that “[a]s a result of his conviction, [he] was 

required to register as a sex offender” in Colorado; that a 

law enforcement officer in Colorado confirmed that Clemens 

“was still required to registered as a sex offender, and his last 

registration in Colorado was on January 14th, 2016, when he 

listed his address at that time as being in Aurora, Colorado”; 

that Clemens had posted on social media in June 2016 that he 

was leaving Colorado and “was going to Nebraska for a new 

start”; that his employer provided timecards showing that he 

“had been working in Nebraska since June 20th of 2016”; that 

Clemens had “acknowledge[d] that he knew he was required to 

register as a sex offender, but said he did not know the rules 

in Nebraska”; and that a “review of the Nebraska State Patrol 

Registry and the records of the Lancaster County Sheriff’s 

Office show that . . . Clemens had never registered as a sex 

offender in Nebraska or in Lancaster County.” After the State 
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finished giving its factual basis, the court asked Clemens, “Sir, 

did you commit this offense?” and Clemens replied, “Yes, sir.” 

After further colloquy, the court accepted Clemens’ plea and 

found him guilty of attempted violation of SORA.

On July 28, 2017, the court sentenced Clemens to imprisonment for 270 days and to postrelease supervision for 9 months. 

On August 15, Clemens filed a notice of appeal. At an appeal 

bond hearing held on August 16, the district court received into 

evidence two exhibits offered by Clemens: an August 4, 2017, 

letter from the Nebraska State Patrol stating that Clemens did 

not need to register under SORA and a copy of the decision of 

the U.S. Court of Appeals for the Eighth Circuit in A.W. by and 

through Doe v. State, 865 F.3d 1014 (8th Cir. 2017). Clemens 

stated that he was offering the exhibits “just for the purpose of 

setting the appeal bond.”

In the August 4, 2017, letter, legal counsel for the Nebraska 

State Patrol advised Clemens that his “registration is being 

terminated due to a decision of the 8th Circuit Court of Appeals 

relating to out-of-state juvenile adjudications.” The Eighth 

Circuit opinion to which the letter referred was A.W. by and 

through Doe, supra, filed on July 31, 2017. In that opinion, the Eighth Circuit interpreted SORA and, in particular 

§ 29-4003(1)(a), which provides: “[SORA] applies to any person who on or after January 1, 1997: . . . (iv) [e]nters the state 

and is required to register as a sex offender under the laws of 

another village, town, city, state, territory, commonwealth, or 

other jurisdiction of the United States.” In its opinion in A.W. 

by and through Doe, based on its interpretation of the term “sex 

offender,” the Eighth Circuit concluded that § 29-4003(1)(a)(iv) 

of SORA did not apply to persons who move to Nebraska from 

another state and were required to register in that other state 

if the registration required in the other state was a result of a 

juvenile adjudication rather than a criminal conviction.

At the appeal bond hearing, Clemens stated that the letter 

from the Nebraska State Patrol and the Eighth Circuit decision were “why [he] filed the appeal” and that they indicated 
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“a mitigating circumstance [such that he should be] released 

on an appeal bond.” Clemens did not ask to withdraw his 

plea, nor did he request any relief other than the setting of an 

appeal bond.

The State responded that it did not have any objection to the 

court’s setting a bond in this case, but it stated that it had sent 

an email to the court and to Clemens’ counsel “with a determination by the Patrol, subsequent to the letter that [Clemens 

had] offered [to the court] that says, oh, wait a minute, we 

didn’t know some other things.” The State continued by saying that the “issue is not cut and dry, as it would appear from 

just those two exhibits.” The State concluded that it “just 

want[ed] the Court to be aware of that” and repeated that it 

did not object to setting a bond. The court then set a bond 

for Clemens.

Clemens appeals his conviction and sentence.

ASSIGNMENT OF ERROR

Clemens claims that the district court “committed plain error 

by accepting the factual basis at the plea, and by sentencing 

[him].” Clemens argues that there was no factual basis for 

the district court to accept his plea, because under the Eighth 

Circuit’s interpretation of SORA, he was not required to register in Nebraska and therefore he could not have violated SORA 

by failing to register in Nebraska.

We note that while Clemens claimed that the court committed plain error “by sentencing” him, he does not make a 

separate argument regarding sentencing per se. Instead, his 

argument appears to be that because the court should not have 

accepted his plea, the court should not have sentenced him at 

all. Therefore, our resolution of the sentencing claim is based 

entirely on our resolution of the claim relating to acceptance 

of the plea.

STANDARDS OF REVIEW

[1,2] A trial court is given discretion as to whether to accept 

a guilty plea, and an appellate court will overturn that decision 
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only where there is an abuse of discretion. State v. Russell, 291 

Neb. 33, 863 N.W.2d 813 (2015). 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. 

State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017).

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

an appellate court reviews independently. See State v. Kennedy, 

299 Neb. 362, 908 N.W.2d 69 (2018).

ANALYSIS

This Court Treats Clemens’ Claim of Plain Error 

as Challenge to Court’s Finding That His Plea 

Was Entered Understandingly and Voluntarily.

We first address the procedural posture of this case and the 

manner in which Clemens claims error on appeal. Clemens 

asserts on appeal that the district court committed plain error 

when it accepted the factual basis of his plea and sentenced 

him. In particular, he contends that he was not required to register as a sex offender in Nebraska and that therefore, he could 

not have been found guilty of a violation or attempted violation 

of SORA based on a failure to register.

Clemens phrases his assignment of error as an assertion 

that the court committed “plain error.” He apparently raises 

the issue as plain error because he did not object to the factual 

basis at the plea hearing and he did not move to withdraw his 

plea after he received the letter from the Nebraska State Patrol. 

Thus, Clemens could not assign error based on the court’s 

“overruling” an objection he did not raise or a motion he did 

not make.

Instead of seeking a ruling directly challenging the necessity to register, the only point at which Clemens brought to the 

district court’s attention the issue of whether he was required 

to register was in the context of the appeal bond hearing. At 

that hearing, he stated that he was offering evidence regarding the issue of whether he was required to register “just for 
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the purpose of setting the appeal bond” and, as noted above, 

that the evidence he presented indicated “a mitigating circumstance [such that he should be] released on an appeal bond.” 

Although the State took issue with the import of the evidence 

offered by Clemens, it stated that it did not object to the 

court’s setting a bond for Clemens. The court then set a bond 

for Clemens, and thus, Clemens could not assign error to the 

denial of a bond.

Regarding the substance of the assertion of plain error in 

this appeal, we note that in State v. Wilkinson, 293 Neb. 876, 

881 N.W.2d 850 (2016), we concluded that a defendant did 

not waive a challenge to the factual basis for a plea when he 

entered a plea. We stated that a sufficient factual basis is a 

requirement for finding that a plea is entered into understandingly and voluntarily. Therefore, on appeal, one of the limited 

challenges a defendant may raise to a plea that was accepted 

by the trial court is the claim that the plea was not understandingly and voluntarily made. In view of the foregoing, we read 

Clemens’ assertion of plain error in this appeal as a challenge 

to the court’s acceptance of his plea on the limited basis that 

the plea was not understandingly and voluntarily made because 

there was not a sufficient factual basis for the plea.

Based on Plain Reading of SORA Registration 

Requirements, Clemens Was Required to Register 

Under SORA: The Factual Basis for 

Clemens’ Plea Was Sufficient.

We note at this point that the parties indicate on appeal, and 

it is reflected in the presentence report prepared after the plea 

was accepted, that Clemens was a juvenile at the time of the 

events leading to his adjudication in Colorado. We accept that 

understanding for the purpose of our analysis.

Relying on the Nebraska State Patrol’s letter and the Eighth 

Circuit’s interpretation of § 29-4003(1)(a)(iv) in A.W. by and 

through Doe v. State, 865 F.3d 1014 (8th Cir. 2017), Clemens 

contends that the factual basis in this case was not sufficient 
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because, inter alia, his Colorado registration from a juvenile 

adjudication and the factual basis recited by the State did 

not include an allegation that he was required to register in 

Colorado based on an actual “conviction.” Brief for appellant at 5. He contends there was not a sufficient factual basis 

because he was not in fact required to register in Nebraska and 

therefore could not have violated or attempted to violate SORA 

by failing to register. Clemens basically argues that he could 

not have understandingly and voluntarily pled guilty to an 

offense he did not commit. We conclude that there was a sufficient factual basis to support Clemens’ plea to an attempted 

violation of SORA and that the court did not err when it 

accepted the plea.

[4-6] To support a plea of guilty or no contest, the record 

must establish that (1) there is a factual basis for the plea and 

(2) the defendant knew the range of penalties for the crime 

with which he or she is charged. State v. Wilkinson, supra. 

“When a court accepts a defendant’s plea of guilty or no contest, the defendant is limited to challenging whether the plea 

was understandingly and voluntarily made and whether it was 

the result of ineffective assistance of counsel.” Id. at 881, 881 

N.W.2d at 855. A sufficient factual basis is a requirement for 

finding that a plea was entered into understandingly and voluntarily. Id.

Clemens pled guilty to an attempted violation of 

§ 29-4011(1), which provides that “[a]ny person required 

to register under [SORA] who violates the act is guilty of a 

Class IIIA felony.” The offense as charged by the State was 

that Clemens violated SORA when he failed to timely register 

as required by §§ 29-4003(1)(a)(iv) and 29-4004(1). Section 

29-4003(1)(a) provides that SORA “applies to any person who 

on or after January 1, 1997,” meets one of the listed criteria, 

including the criterion listed in subsection (1)(a)(iv), referring 

to a person who “[e]nters the state and is required to register 

as a sex offender under the laws of another village, town, 

city, state, territory, commonwealth, or other jurisdiction of 
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the United States.” Section 29-4004(1) provides that “[a]ny 

person subject to [SORA] shall register within three working 

days after becoming subject to the act at a location designated by the Nebraska State Patrol for purposes of accepting 

such registration.”

As noted above, the factual basis provided by the State at 

the plea hearing held on June 5, 2017, included allegations 

to the effect that prior to June 2016, Clemens had lived in 

Colorado; that he moved to Nebraska in June 2016; that at 

the time he moved to Nebraska, he was required to register 

as a sex offender in Colorado; and that he had never registered as a sex offender in Nebraska or in Lancaster County. 

The foregoing factual basis would appear to support a conviction under § 29-4011(1) based on the plain language of 

§§ 29-4003(1)(a)(iv) and 29-4004(1).

Notwithstanding the facts recited by the State, Clemens 

argues that the factual basis was not sufficient, because the 

language in § 29-4003(1)(a)(iv) that one is “required to register 

as a sex offender” should be made by reference to Nebraska 

law concerning who is required to register in Nebraska—

not Colorado law concerning who is required to register in 

Colorado. In this regard, Clemens points out that juveniles 

adjudicated delinquent in Nebraska do not have to register 

under SORA, whereas in Colorado, they are required to do so. 

As a consequence of his interpretation of subsection (1)(a)(iv), 

Clemens maintains that the plea did not satisfy his reading of 

§ 29-4003(1)(a)(iv).

Clemens’ interpretation is based on the Eighth Circuit’s 

decision in A.W. by and through Doe v. State, 865 F.3d 1014 

(8th Cir. 2017). As we noted above, that case held that the 

term “sex offender” as used in § 29-4003(1)(a)(iv) refers 

only to a person who has been criminally convicted of a sex 

offense, but does not include one who is required to register in 

another state based on a juvenile adjudication which is generally not considered a criminal “conviction” under Nebraska 

law. Clemens argues that because he was required to register 
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in Colorado based on a juvenile adjudication but not a criminal 

conviction, he was not a “sex offender” within the meaning of 

§ 29-4003(1)(a)(iv).

In A.W. by and through Doe, supra, the Eighth Circuit 

rejected the State’s argument that under § 29-4003(1)(a)(iv), 

the determination of whether one is required to register as 

a sex offender in another jurisdiction is to be determined 

based on that other jurisdiction’s definition of the term “sex 

offender.” The Eighth Circuit reasoned instead that whether one 

is required to register as a sex offender in the other jurisdiction 

depends on whether the registration requirement in that other 

jurisdiction is based on the person’s being a “sex offender” as 

that term is defined by Nebraska law. Because SORA does not 

include a definition of the term “sex offender,” and given its 

approach to subsection (1)(a)(iv), the Eighth Circuit looked to 

ascertain who would be required to register as a “sex offender” 

under Nebraska law. The Eighth Circuit then determined a 

criminal “conviction” is necessary to being considered a “sex 

offender” under Nebraska law, and it reasoned that because a 

juvenile adjudication is not considered a “conviction” under 

Nebraska law, one who is required to register in another state 

because of a juvenile adjudication is not a “sex offender” under 

Nebraska law and therefore not “required to register as a sex 

offender under the laws of another” jurisdiction for purposes of 

§ 29-4003(1)(a)(iv).

[7-9] Resolution of the issue of whether Clemens was 

required to register under SORA requires us to interpret 

§ 29-4003(1)(a)(iv), and we therefore review standards relevant 

to statutory interpretation. Statutory language is to be given its 

plain and ordinary meaning. State v. Jasa, 297 Neb. 822, 901 

N.W.2d 315 (2017). An appellate court will not look beyond a 

statute to determine the legislative intent when the words are 

plain, direct, or unambiguous. Id. 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. State v. 
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Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018). 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. Id.

[10] We respectfully disagree with the Eighth Circuit’s interpretation of § 29-4003(1)(a)(iv) and reject Clemens’ argument 

based thereon. We think that the Eighth Circuit’s decision to 

focus on the meaning of “sex offender” under Nebraska law 

and the posited requirement of a “conviction” deviates from a 

plain reading of § 29-4003(1)(a)(iv). To repeat, § 29-4003(1)(a) 

provides that SORA “applies to any person who on or after 

January 1, 1997: . . . (iv) [e]nters the state and is required to 

register as a sex offender under the laws of another village, 

town, city, state, territory, commonwealth, or other jurisdiction 

of the United States.” Our plain reading of the statute leads us 

to conclude that “required to register as a sex offender” is modified by “under the laws of another . . . jurisdiction.” Reading 

the section as a whole, whether one is “required to register 

as a sex offender” in another jurisdiction is determined under 

the laws of the other jurisdiction rather than under Nebraska 

law. Section 29-4003(1)(a)(iv) adds no additional requirement 

that registration in the other jurisdiction must be based on a 

“conviction” or an offense that would have required the person to register in Nebraska if the offense had been committed 

in Nebraska.

In this regard and in contrast to SORA’s § 29-4003(1)(a)(iv), 

we are aware of other states’ sex offender statutes and note 

that elsewhere there is deliberate language, such as requiring 

registration if the individual was “convicted” in the other state; 

such statutes would be compatible with the Eighth Circuit’s 

approach to § 29-4003(1)(a)(iv). E.g., State v. Frederick, 292 

Kan. 169, 174, 251 P.3d 48, 51 (2011) (determining person 

required to register in other state based on juvenile adjudication not required to register in Kansas, because Kansas statute 

refers to person convicted in other state and under Kansas law, 

“convictions” do not include “adjudications”).
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Our reading of § 29-4003(1)(a)(iv) is bolstered by reading other provisions of § 29-4003(1)(a) as well as the statute as a whole. Section 29-4003(1)(a) describes persons to 

whom SORA applies. Section 29-4003(1)(a)(i)(A) through (N) 

lists the sexual predatory conduct to which SORA applies. 

Subsection 29-4003(1)(a)(ii) in particular requires persons to 

register in Nebraska who have “ever pled guilty to, pled nolo 

contendere to, or been found guilty of any offense that is substantially equivalent to a registrable offense under subdivision 

(1)(a)(i) of this section by” another jurisdiction.

Section 29-4003(1)(a)(ii) uses the language of criminal law 

and essentially requires a person with a “conviction” for a 

sex offense in another jurisdiction to register in Nebraska. By 

imposing a “conviction” requirement onto § 29-4003(1)(a)(iv), 

in A.W. by and through Doe v. State, 865 F.3d 1014 (8th Cir. 

2017), the Eighth Circuit’s reading of subsection (1)(a)(iv) 

tends to make it superfluous to subsection (1)(a)(ii). We recognize there is some overlap between subsections (1)(a)(ii) 

and (1)(a)(iv), for example, where one was convicted of an 

offense and required to register in another jurisdiction and 

also would have been required to register in Nebraska if the 

offense had been committed in Nebraska. However, as we read 

§ 29-4003(1)(a), each subsection covers some circumstances 

that the other does not. Subsection (1)(a)(ii) covers persons 

convicted of an offense in another state that would have 

required registration in Nebraska, whether or not that person 

is required to register under the laws of the other jurisdiction, 

whereas subsection (1)(a)(iv) covers persons who are required 

to register as a sex offender in another jurisdiction whether 

or not they would otherwise have been required to register in 

Nebraska. Thus, in contrast to the Eighth Circuit’s approach 

to § 29-4003(1)(a)(iv), our reading tends to make subsections 

(1)(a)(ii) and (1)(a)(iv) harmonious.

We have reviewed the jurisprudence relative to registrable 

offenses and believe our reading of § 29-4003(1)(a)(iv) is consistent with the approaches taken by other states addressing 
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when to require registration of a person coming into the 

state from another state. The literature recognizes differing 

approaches in imposing registration requirements for one 

who moves from another state to the forum state. Wayne A. 

Logan, Horizontal Federalism in an Age of Criminal Justice 

Interconnectedness, 154 U. Pa. L. Rev. 257 (2005). Alternative 

approaches have been described as being either “internal” or 

“external.” Id. at 261. Under an internal approach, the forum 

state “requires that out-of-state convictions, and any punishment resulting from those convictions, satisfy the eligibility 

requirements of the forum state’s registration . . . law.” Id. 

Under an external approach, the forum state “allows such 

decisions to be based on the legal determinations of the forum 

state’s fellow sovereigns.” Id. Some state courts have noted 

that their statutes take both approaches. See Crabtree v. State, 

389 S.W.3d 820 (Tex. Crim. App. 2012) (Alcala, J., dissenting; 

Johnson and Cochran, JJ., join).

Nebraska’s statute uses both approaches. Section 

29-4003(1)(a)(ii) uses the internal approach. And, although 

the Eighth Circuit applied an internal approach analysis to 

§ 29-4003(1)(a)(iv), we believe § 29-4003(1)(a)(iv) is an external approach statute. See Com. v. Bell, 83 Mass. App. 82, 981 

N.E.2d 220 (2013) (Grainger, J., dissenting in part) (identifying 

§ 29-4003(1)(a)(iv) as being among statutes from other states 

that require registration in forum state based on registration 

requirement in another state whether or not offense would have 

required registration if committed in forum state).

We note that in Murphy v. Commonwealth, 500 S.W.3d 

827 (Ky. 2016), the Supreme Court of Kentucky considered 

a statute that used an external approach similar to that used 

in § 29-4003(1)(a)(iv). Referring to the Kentucky statute, the 

court in Murphy stated that the law at issue required registration in Kentucky for “‘a person . . . required to register under 

. . . the laws of another state . . . .’” 500 S.W.3d at 829. The 

court in Murphy concluded that the “plain language of the 

statute” required the defendant, who was required to register 
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in another state based on that other state’s law, to register 

in Kentucky. 500 S.W.3d at 831. In so concluding, the court 

rejected an argument—similar to that urged by Clemens—that 

a defendant is not required to register in Kentucky, because his 

registration in the other state arose from a juvenile adjudication 

and Kentucky did not require registration for persons found 

to have committed a sex offense in a juvenile adjudication 

in Kentucky.

When it rejected the defendant’s argument, the court in 

Murphy reasoned that public policy regarding whether and 

which juveniles should register was to be determined by the 

Kentucky General Assembly rather than the court and that 

“if the General Assembly has required registration of some 

juveniles from other states, then that is the law.” 500 S.W.3d 

at 832. For completeness, we note that after the decision in

Murphy, the Kentucky General Assembly amended the statute 

to exclude registration based on juvenile adjudications in other 

states. See Ky. Rev. Stat. Ann. § 17.510(6)(b) (LexisNexis 

Cum. Supp. 2017) (providing in part that “[n]o person shall be 

required to register under this subsection for a juvenile adjudication if such an adjudication in this Commonwealth would not 

create a duty to register”).

As we discussed above, the external approach of the plain 

language of § 29-4003(1)(a)(iv) requires registration in this 

state when the person was required to register as a sex offender 

in the other jurisdiction. This statute’s registration requirement 

does not explicitly require a “conviction” in the other state, nor 

does it explicitly exclude from registration a juvenile adjudication in the other state. If the policy of Nebraska is to exclude 

registration when a person moves to Nebraska with a registration requirement in another state based on a juvenile adjudication, then our Legislature would need to make that decision 

and amend our statutes. As our statute now reads, we conclude 

§ 29-4003(1)(a)(iv) requires registration based on a registration 

requirement from another state even if the requirement in the 

other state is based on a juvenile adjudication.
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[11] In Skaggs v. Nebraska State Patrol, 282 Neb. 154, 804 

N.W.2d 611 (2011), we held that a sex offender registrant’s 

actual registration under another jurisdiction’s law is conclusive evidence that the registrant was required to register 

within the meaning of § 29-4003(1)(a)(iv). Given Skaggs and 

our current holding, there was a sufficient factual basis in 

the instant case to accept the plea, because the basis set forth 

at the plea hearing showed that at the time Clemens entered 

Nebraska, he was required to register and actually was registered as a sex offender in Colorado. Under § 29-4003(1)(a)(iv), 

that registration requirement under Colorado law was all that 

was needed to establish that he was required to register in 

Nebraska under SORA. When the facts showed that Clemens 

failed to register in Nebraska within 3 working days as 

required by § 29-4004(1), a factual basis was established to 

find him guilty under § 29-4011(1) of an attempted violation 

of SORA.

For completeness, we note that there are issues we need not 

and do not address in this opinion. We are aware that there is 

some argument by Clemens that it would violate certain constitutional rights to require registration in Nebraska based on 

his Colorado juvenile adjudication. In this case, Clemens did 

not raise a constitutional challenge to § 29-4003(1)(a)(iv) in 

the district court and therefore did not preserve any such challenge for our review on appeal. In this regard, we also note that 

certain constitutional issues were raised in A.W. by and through 

Doe v. State, 865 F.3d 1014 (8th Cir. 2017), but not resolved, 

because of the Eighth Circuit’s interpretation of SORA as not 

requiring registration in that case.

We also are aware that issues were raised in A.W. by and 

through Doe, supra, regarding whether it would be appropriate 

for Nebraska to make registration information public when the 

person is required to register in Nebraska based on a juvenile 

adjudication in another state and the person would not have 

been subject to public disclosure in the other state. For purposes of the present case, our decision is limited to whether 
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Nebraska Supreme Court Advance S

300 Nebraska Report

STATE v. CLEMENS

Cite as 300 Neb. 601

there was a factual basis to support Clemens’ plea to attempted 

violation of SORA. We determined that Clemens was required 

to register under SORA; however, whether the State may 

make certain information public after a person has registered 

is a separate issue from whether the person is required to 

register, and the public disclosure question is not at issue in 

this case. Similarly, issues regarding the length of time one 

may be required to register in Nebraska based on a registration requirement from another state are outside the scope of 

this decision.

CONCLUSION

We read SORA’s § 29-4003(1)(a)(iv) to require registration in Nebraska where an individual is required to register in another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States, regardless 

of whether the registration in the other jurisdiction is based 

on a juvenile adjudication. Based on our interpretation of 

§ 29-4003(1)(a)(iv), we determine that there was a sufficient 

factual basis for Clemens’ plea to attempted violation of 

SORA, and we reject his claim that the plea was not made 

understandingly and voluntarily. We therefore find no error in 

the district court’s acceptance of Clemens’ plea or the sentence 

imposed upon him. Accordingly, we affirm Clemens’ conviction and sentence.

Affirmed