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STATE v. WELLS

Cite as 28 Neb. App. 118

State of Nebraska, appellee, v.

Mason J. Wells, appellant.

___ N.W.2d ___

Filed March 10, 2020. No. A-19-257.

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. Sentences. In determining a sentence to be imposed, relevant factors 

customarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, 

(5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the 

amount of violence involved in the commission of the crime.

3. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s 

demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.

4. ____. An indeterminate sentence is a minimum term and maximum term 

or range of time for which the defendant is to be incarcerated, even if 

the minimum and maximum number are the same.

5. ____. When a sentence for a misdemeanor is imposed consecutively 

or concurrently with sentences for felony convictions, the felony classifications will dictate whether the misdemeanor sentence should be a 

determinate or indeterminate sentence.

Appeal from the District Court for Greeley County: Karin 

L. Noakes, Judge. Affirmed in part, and in part vacated and 

remanded for resentencing.

Mark Porto, of Porto Law Office, for appellant.

Nebraska Supreme Court Online Library

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

03/10/2020 09:06 AM CDT
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STATE v. WELLS

Cite as 28 Neb. App. 118

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

Riedmann, Bishop, and Arterburn, Judges.

Bishop, Judge.

Mason J. Wells was initially charged with 19 counts of various felony and misdemeanor violations stemming from actions 

he took in May 2018 in Greeley County, Nebraska. Pursuant to 

a plea agreement, he pled no contest to seven counts related to 

an incident involving a firearm, kidnapping, terroristic threats, 

false imprisonment, third degree assault, and criminal mischief. The Greeley County District Court sentenced Wells to 

various consecutive and concurrent sentences on his felony 

and misdemeanor convictions. Wells, who was 20 years old 

at the time of sentencing, contends the district court imposed 

excessive sentences. The State disagrees, but claims the district 

court committed plain error by imposing determinate rather 

than indeterminate sentences for some of the convictions. We 

affirm in part, and in part vacate and remand for resentencing 

on some of the sentences imposed.

BACKGROUND

On the evening of May 4, 2018, Wells was present at a 

party taking place outside of Spalding, Nebraska. A number of 

juveniles were also present, including the four male victims in 

this case: C.H. and W.F., who were both 17 years old; B.K., 

who was 15 years old; and T.B., who was 16 years old. Wells 

and another individual, Nicholas Vanderheiden, approached 

the victims at the party location and physically assaulted C.H. 

and W.F. The four victims got into a vehicle and left the party, 

but were followed and overtaken by Wells and Vanderheiden. 

C.H. and W.F. were forced out of their vehicle at gunpoint and 

were subsequently further assaulted. The assault was disrupted 

when a vehicle approached and another young man, B.B., 

intervened. He was also assaulted, but he got away and contacted law enforcement.
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STATE v. WELLS

Cite as 28 Neb. App. 118

On July 18, 2018, the State filed an information charging 

Wells with a total of 19 counts: 8 counts of use of a firearm to commit a felony, each a Class IC felony, pursuant 

to Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016); 4 counts 

of “Kidnapping-Voluntarily Released Alive” (named victims 

C.H., W.F., B.K., and T.B.), each a Class II felony, pursuant to Neb. Rev. Stat. § 28-313(1)(c) and (3) (Reissue 2016); 

4 counts of terroristic threats (named victims C.H., W.F., 

B.K., and T.B.), each a Class IIIA felony, pursuant to Neb. 

Rev. Stat. § 28-311.01 (Reissue 2016); and 3 counts of third 

degree assault (named victims C.H., W.F., and B.B.), each a 

Class I misdemeanor, pursuant to Neb. Rev. Stat. § 28-310 

(Reissue 2016).

Pursuant to a plea agreement, the State filed an amended 

information on January 11, 2019, charging Wells with seven 

counts: possession of a deadly weapon (firearm) during 

the commission of a felony, a Class II felony, pursuant to 

§ 28-1205(2)(c) (count I); “Kidnapping-Voluntarily Released 

Alive” (named victim W.F.), a Class II felony, pursuant to 

§ 28-313(1)(c) and (3) (count II); terroristic threats (named 

victim C.H.), a Class IIIA felony, pursuant to § 28-311.01 

(count III); second degree false imprisonment (named victims T.B. and B.K.), a Class I misdemeanor, pursuant to Neb. 

Rev. Stat. § 28-315 (Reissue 2016) (counts IV and V); third 

degree assault (named victim B.B.), a Class I misdemeanor, 

pursuant to § 28-310 (count VI); and “Criminal Mischief $500-

$1,500,” a Class II misdemeanor, pursuant to Neb. Rev. Stat. 

§ 28-519(1) and (4) (Reissue 2016) (count VII).

At a hearing on January 14, 2019, Wells pled no contest to 

all seven counts in the amended information. According to the 

factual basis provided by the State:

On the evening of May 4, 2018[,] a party was held at 

[a named location] about seven miles outside Spalding, 

Nebraska in Greeley County. The event was a going 

away party for [a person] leaving for school out of state. 

A number of juveniles were present at the event; [W.F.], 
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[C.H.], [T.B.], B.K.], and . . . other witnesses . . . , as 

were defendants . . . Wells and . . . Vanderheiden.

Throughout the evening [W.F.] was approached on 

more than one occasion by another defendant who told 

[W.F.] he was going to fight him. Wells made the same 

statement to several others at the party. . . . Approximately 

11:30 p.m. [W.F.], [C.H.], [T.B.], [B.K.], and [one other 

person], all juveniles, got into [W.F.’s] pickup to leave the 

party. Wells approached the pickup and repeatedly told 

[W.F.] they were going to fight. . . .

[W.F.] repeatedly told Wells they were not going to 

fight and asked to just let them leave. Wells repeated his 

demands that [W.F.] and the passengers get out of his 

pickup. Wells stated, “Get out of the pickup or it’s going 

to be worse for all of you. Just get out.” [W.F.] and the 

other passengers . . . exited the pickup.

[W.F.] repeatedly told Wells he did not want to fight 

him and turned toward his pickup. Wells struck [W.F.] 

in the face two times and in the back one time with 

closed fists.

The four victims; [W.F.], [C.H.], [T.B.] and [B.K.], got 

back into [W.F.’s] pickup. [W.F.] locked his door. Wells 

went over to the front passenger side of the pickup where 

[C.H.] was sitting with the door open. Wells demanded 

[C.H.] get out. [C.H.] refused to do so, and Wells struck 

[C.H.] in the face while [C.H.] was seated in the pickup.

Another person told Wells to get off [C.H.] and let 

him go. At this point Vanderheiden . . . grabbed the bug 

guard on [W.F.’s] pickup and broke off a piece, then came 

around to the driver’s side and broke the driver’s side 

mirror. . . .

One of Wells’ friends grabbed . . . Wells, restraining 

him and yelled at [W.F.] to go. [W.F.] started the pickup 

and left immediately with [C.H.], [T.B.], and [B.K.] in the 

pickup with him.
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[W.F.] was driving down WPA Road when a pickup 

driven by Wells, with Vanderheiden as his passenger, 

overtook [W.F.’s] pickup and swung the pickup sideways 

on the road effectively blocking the road so [W.F.] could 

not pass. [W.F.] put his vehicle in reverse and started to 

back up to get away from Wells and Vanderheiden.

At that point Wells exited his pickup holding a shotgun, 

which he pointed at [W.F.] Vanderheiden also exited the 

pickup holding a rifle. Wells pointed his weapon at [C.H.] 

and demanded he get the fuck out of the vehicle. Wells 

pulled [C.H.] out of the passenger side of [W.F.’s] pickup. 

During the same time, Vanderheiden stated, “We could 

kill all of you and bury you and no one would know.” The 

same statement, or similar words, were repeated several 

times by Vanderheiden during this course of events, and 

in the presence of Wells, as well as [W.F.], [C.H.], [T.B.], 

and [B.K.], the victims.

Wells stated, “I’m going to get in [W.F.’s] truck and 

you go get in with [Vanderheiden].” Vanderheiden pointed 

his rifle at [C.H.] and walked [C.H.] over to Wells’ 

pickup. Vanderheiden then forced [C.H.] into Wells’ 

pickup. Wells got into [W.F.’s] pickup in the front passenger seat. Vanderheiden proceeded to drive off in Wells’ 

pickup, and Wells told [W.F.] to follow [Vanderheiden]. 

[W.F.] complied. During the drive Wells stated to [W.F.], 

[T.B.], and [B.K.], “You guys made this a lot worse 

by leaving.”

After traveling approximately a half to three-quarters 

of a mile, Vanderheiden stopped Wells’ pickup. [W.F.] 

stopped as well. Vanderheiden told [C.H.] to get out with 

your hands up or I’ll put a round in your dome. [C.H.] 

exited Wells’ pickup. Vanderheiden pointed a rifle at 

[C.H.] and they both walked towards [W.F.’s] pickup. 

Vanderheiden told [C.H.], “I’ve been waiting to do this 

for a long time”, and “I will kill you and bury you in 

a hog confinement”. Wells yelled at [C.H.] and [W.F.] 
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warning them that if they tried anything he wouldn’t 

hesitate to shoot all of us. [T.B.] and [B.K.] were in this 

presence [sic] when all of this occurred. They’re in the 

backseat of the pickup.

Wells exited [W.F.’s] pickup and spoke briefly with 

Vanderheiden. Vanderheiden then approached [W.F.’s] 

door and opened it. After he yelled continually at [W.F.], 

Vanderheiden punched [W.F.], pulled him out of the 

pickup and continued to assault him. At that point Wells 

. . . continued to assault [W.F.] At some point [W.F.] got 

back into his pickup. Wells then told him again to exit 

the pickup. [W.F.] did so, walked around to the passenger 

side of the pickup.

At that point, Vanderheiden demanded that [W.F.] get 

back into his vehicle. As [W.F.] was walking back towards 

the driver’s side of the pickup, Vanderheiden jabbed the 

butt of the rifle he was holding into [W.F.’s] back and 

told him, “I will shoot you.” Right as [W.F.] was getting 

back into his pickup, Vanderheiden pulled him out again 

and started hitting [W.F.] [C.H.] and Wells were behind 

[W.F.’s] pickup.

At this point, [B.B.], who was driving along WPA 

Road, came upon this scene. He jumped out of his pickup 

and began yelling at Wells. Wells put his weapon down 

on the pickup, and [B.B.] then pushed Vanderheiden, who 

still had a rifle. Wells ran toward [B.B.] and began hitting 

and kicking [B.B.] Vanderheiden began assaulting [B.B.], 

as well. The assault ended when [B.B.] got free, returned 

to his pickup, and left. Wells and Vanderheiden told 

[W.F.] and [C.H.] to leave. Wells stated, “[B.B.’s] dead 

now.” [C.H.] and [W.F.] got back into [W.F.’s] pickup and 

left. So, the four victims left in [W.F.’s] pickup.

[B.B.] contacted [law enforcement]. Wells and 

Vanderheiden left the scene. Several contacts were made 

to 911, and [law enforcement was] dispatched to the 

scene. Law enforcement arrived at [the location of the 
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going away party] where Wells’ pickup was found parked. 

On seeing weapons in plain sight in the vehicle, law 

enforcement confiscated the weapons in the vehicle, 

which included a .308 caliber rifle and a 12-gauge tactical shotgun described by victims, as well as high-capacity 

magazines for the shotgun and three other weapons.

The juveniles, victims’ names and ages at the time of 

the offense: [W.F.], 17 years old; [C.H.], 17 years old; 

[T.B.], 16 years old; and [B.K.], 15 years old. These 

events did take place in Greeley County, Nebraska.

Upon inquiry from the district court, the State said that B.B. 

was 20 years old. When asked by the court why he wanted 

to fight W.F., Wells stated, “Alcohol. There was some stuff 

between a girlfriend and my kid.” And when asked why he 

was driving around with guns in his vehicle, Wells responded, 

“We were trap shooting earlier that day.” He further stated, “I 

always have my .22 and my .308 with me. That’s just one gun 

I always carried, and then the rest were shotguns that we had 

there to use to trap shoot.” Defense counsel also informed the 

court that the going away party was at a trapshooting facility. The district court accepted Wells’ no contest pleas to each 

count and found him guilty of the same. The case was set 

for sentencing.

After a hearing on February 25, 2019, the district court 

sentenced Wells to 5 to 10 years’ imprisonment on count I, 5 

to 10 years’ imprisonment on count II, 3 years’ imprisonment 

on count III, 1 year’s imprisonment each on counts IV, V, and 

VI, and 6 months’ imprisonment on count VII. The sentences 

in counts II through VII were to be served concurrently with 

each other, but consecutively to count I. Wells was given credit 

for 4 days’ time served. Additionally, Wells was ordered to 

pay restitution in the amount of $606.94 to W.F. and $343.86 

to C.H.; restitution was to be paid “jointly and severally with 

. . . Vanderheiden within 2 years of [Wells’] final release date 

from imprisonment.”

Wells appeals.
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STATE v. WELLS

Cite as 28 Neb. App. 118

ASSIGNMENT OF ERROR

Wells assigns the district court erred by imposing excessive sentences.

STANDARD OF REVIEW

[1] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by 

the trial court. State v. Leahy, 301 Neb. 228, 917 N.W.2d 

895 (2018).

ANALYSIS

Wells asserts that the district court imposed excessive sentences and that upon consideration of all of the appropriate 

sentencing factors, and considering mitigating circumstances, 

an overall lesser sentence would have been more appropriate. 

The State contends that Wells’ sentences were not excessive, 

but that the sentences in counts III through VII did involve 

plain error, as discussed below.

[2,3] In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant’s (1) 

age, (2) mentality, (3) education and experience, (4) social and 

cultural background, (5) past criminal record or record of lawabiding conduct, and (6) motivation for the offense, as well as 

(7) the nature of the offense and (8) the amount of violence 

involved in the commission of the crime. Id. The appropriateness of a sentence is necessarily a subjective judgment and 

includes the sentencing judge’s observation of the defendant’s 

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

Wells was 20 years old at the time of sentencing. According 

to the presentence report (PSR), his marital status was single, 

but he was in a relationship with the mother of his child. 

He graduated from high school in 2017. At the time of the 

presentence investigation interview, he reported having been 

employed as a welder for the past week and being previously 

employed at a hog barn and as a farmhand.
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Wells’ criminal history includes a conviction for “MIPAlcohol,” for which he was sentenced to 2 days’ jail time and 

12 months’ probation; however, his probation was revoked, 

and he was sentenced to 15 days’ jail time. He has also been 

cited for numerous traffic offenses for which he received 

fines. His current convictions were for the amended charges 

of possession of a firearm during the commission of a felony, 

kidnapping W.F., making terroristic threats against C.H., the 

second degree false imprisonments of T.B. and B.K., the third 

degree assault of B.B., and “Criminal Mischief $500-$1,500” 

for damage caused to W.F.’s pickup.

The probation officer conducted a “Level of Service/Case 

Management Inventory.” Wells was assessed as an overall 

“[m]edium [h]igh” risk to reoffend. He scored “[h]igh” in 

the criminogenic risk factor domains for leisure/recreation 

and alcohol/drug problem. He scored “[m]edium” risk in the 

domains for criminal history, companions, procriminal attitude/

orientation, and antisocial pattern. And he scored “[v]ery [l]ow” 

risk in the domains for education/employment and family/

marital. He scored in the “problem-risk range” in the areas of 

alcohol and violence on the “Substance Abuse Questionnaire.” 

During the presentence investigation interview, Wells reported 

that his father used to be an alcoholic and was addicted to 

opiates, but has been clean for some unknown period of time. 

Wells reported first trying alcohol around age 14, consuming 

alcohol “‘a lot’” from ages 16 to 18, and consuming alcohol 

almost every night by the age of 19. He reported that he last 

used alcohol the night of the incident that led to his current 

convictions. After his arrest, he attended treatment from May 

to June 2018, where he was diagnosed with “Alcohol Use 

Disorder Severe.” Wells reported that the day of the incident 

leading to his convictions involved trapshooting and alcohol 

consumption. According to the PSR, Wells “does feel he was 

in the wrong in this incident as he stated, ‘this is completely 

stupid and I was not thinking straight.’” “In regard to the victims, [Wells] stated this was a ‘stupid drunk incident.’” Wells 
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“reported this is not the only time an incident like this has 

happened,” but “he ‘just got caught this time.’” According to 

the PSR, Wells was on probation when this incident occurred. 

The probation officer stated, “Considering the nature of this 

incident, this officer feels incarceration is appropriate. I would 

consider [Wells] an appropriate candidate for probation/

post-release supervision with the class of crimes he is eligible 

for.” However, the probation officer recommended certain 

conditions if the court were to sentence Wells to probation or 

post-release supervision.

At the sentencing hearing, Wells stipulated to a restitution payment (jointly and severally) of $606.94 to W.F. and 

$343.86 to C.H. The State read victim impact statements by 

C.H. and W.F. on the record; the statements noted emotional 

and psychological damage from the incident.

The State argued that “probation won’t work at all” as Wells 

had been “been given probation and he did not comply with 

probation.” The State also claimed Wells’ “behavior of bullying and physical violence has been escalating since he was 

14 years old.” (We note the PSR notes “multiple disciplinary 

issues” when Wells was in school to include having a rifle 

on school property and suspensions due to bullying, violating off-campus lunch policies, and showing disrespect toward 

teachers. Additionally, in C.H.’s victim impact statement, he 

recounted being assaulted by Wells in the past, as well as 

Wells’ assaulting another person in the past.) The State noted 

Wells’ actions were not provoked by his victims and argued 

that “insignificant imprisonment term[s] would depreciate the 

seriousness of these crimes, [and] promote disrespect for 

the law.”

Wells’ counsel provided some background as to Wells which 

counsel believed was “critically important in explaining how 

we arrive here.” Counsel noted that Wells comes from a family with divorced parents (for which Wells blames himself) 

and alcoholism. After his grandfather passed away, Wells had 

a “downhill spiral” and drank more. Later, Wells was in a car 
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accident with some friends; he was not the driver, but was 

the first to discover one of his friends had been killed in the 

accident. Rather than seek help through counseling, Wells continued to drink. Counsel stated:

[A]ll of these things are building up inside of [Wells] and 

it culminated in what we are here for today; an incident 

that was alcohol-fueled and . . . was the result of alcohol 

and anger . . . and just a lot of problems that hadn’t been 

addressed that should have been addressed earlier.

Counsel argued that Wells did not show up looking to use 

his guns as weapons, but, rather, he was “shooting trap with 

these kids.” Counsel stated, “I don’t think it would have happened but for the alcohol, and but for the fact that they were 

at a shooting range with guns.” Counsel noted that Wells went 

directly from jail to residential treatment and completed that 

program. Further, Wells “stepped up to his obligations” to 

his child. Counsel asked the district court to order a sentence 

of probation.

Wells spoke in his own behalf and apologized to “all you 

guys and families.” He also recounted his upbringing, his 

grandfather’s passing, the car accident he was in, and how 

he coped by drinking alcohol. He stated he was glad he 

went to treatment following this incident because “[i]t needed 

to happen.”

The district court stated that it had considered the relevant 

sentencing factors. The court acknowledged that Wells was 

present when his codefendant was sentenced. The court added:

These are the most difficult kind of cases for me as a 

Judge. And, I understand that you had some difficulties 

that maybe not every kid has to deal with, but there’s 

something going on with you where your sorrow is 

transferred to anger and violence . . . . That’s something 

that . . . the public needs to be protected from. . . . Here 

you’re at a party, you want to fight these people, I still 

don’t have a real good reason as to why you wanted to 

fight them. . . .
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[T]hey could not have done more to avoid any confrontation with you, yet you persisted while they were at 

the party trying to fight them. You had to be held back. 

They escape you once, you track them down again. . . . 

[D]runk or not, that is not normal behavior . . . .

The court also questioned the reason Wells was carrying 

around tactical weapons and high-capacity magazines, noting 

that it was “one thing” to have a shotgun if they were trapshooting. Wells stated that the tactical rifle was a shotgun and 

that he brought it for trapshooting. The court also noted that 

Wells forced the victims into different vehicles at gunpoint and 

threatened them and that if B.B. would not have shown up to 

diffuse the situation “who knows what could have happened”; 

but “instead of thanking [B.B.,] [Wells] and . . . Vanderheiden 

assault[ed] him, too, at gunpoint.” The court found that Wells 

was not a good candidate for probation and sentenced him to 5 

to 10 years’ imprisonment on count I (possession of a firearm 

during the commission of a felony), 5 to 10 years’ imprisonment on count II (kidnapping), 3 years’ imprisonment on count 

III (terroristic threats), 1 year’s imprisonment on count IV 

(second degree false imprisonment), 1 year’s imprisonment on 

count V (second degree false imprisonment), 1 year’s imprisonment on count VI (third degree assault), and 6 months’ 

imprisonment on count VII (criminal mischief). The sentences 

in counts II through VII were to be served concurrently with 

each other, but consecutively to count I. Wells was given credit 

for 4 days’ time served. Additionally, Wells was ordered to 

pay restitution in the amount of $606.94 to W.F. and $343.86 

to C.H.; restitution was to be paid “jointly and severally with 

. . . Vanderheiden within 2 years of [Wells’] final release date 

from imprisonment.”

Counts I and II

Wells was convicted of possession of a firearm during the 

commission of a felony (count I) and kidnapping (count II), 

each a Class II felony. A Class II felony is punishable by 
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1 to 50 years’ imprisonment. See Neb. Rev. Stat. § 28-105(1) 

(Reissue 2016). The district court sentenced Wells to 5 to 10 

years’ imprisonment for possessing a firearm during the commission of a felony and 5 to 10 years’ imprisonment for the 

kidnapping, with the sentences to be served consecutively. His 

sentences were within the statutory range. However, Wells 

argues the sentences constituted an abuse of discretion “when 

considered in the context of Wells’ background; his relatively 

minor and non-violent criminal record; the unique factual circumstances that led to the presence of the firearms; and the 

significantly harsher punishment imposed upon Wells in relation to . . . Vanderheiden.” Brief for appellant at 10. We note 

that Vanderheiden pled no contest to and was convicted of 

the same charges as Wells and that Vanderheiden’s sentences 

were the same as Wells’ sentences, except that Vanderheiden 

was sentenced to 3 to 10 years’ imprisonment for kidnapping rather than 5 to 10 years’ imprisonment. See State 

v. Vanderheiden, No. A-19-279, 2019 WL 3934770 (Neb. 

App. Aug. 20, 2019) (selected for posting to court website). 

Having considered the relevant factors in this case, we find 

that Wells’ sentences on counts I and II were not excessive 

or an abuse of discretion and that his sentences are therefore 

affirmed. See State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 

(2018) (sentence imposed within statutory limits will not be 

disturbed on appeal absent abuse of discretion by trial court; 

it is within trial court’s discretion to direct that sentences 

imposed for separate crimes be served either concurrently 

or consecutively).

Count III

[4] Wells was convicted of one count of terroristic threats 

(Count III), a Class IIIA felony. He was sentenced to 3 years’ 

imprisonment. A Class IIIA felony is punishable by up to 

3 years’ imprisonment and 18 months’ post-release supervision, a $10,000 fine, or both; there is no minimum sentence of imprisonment, but there is a minimum of 9 months’ 
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post-release supervision if imprisonment is imposed. See 

§ 28-105. However, a person sentenced to imprisonment for 

a Class II felony and sentenced concurrently or consecutively 

to imprisonment for a Class IIIA felony shall not be subject to 

post-release supervision. See § 28-105(6). Additionally, Neb. 

Rev. Stat. § 29-2204.02(4) (Reissue 2016) provides in relevant 

part that for any sentence of imprisonment for a Class IIIA 

felony for an offense committed on or after August 30, 2015, 

imposed consecutively or concurrently with a sentence of 

imprisonment for a Class II felony, the court shall impose an 

indeterminate sentence within the applicable range in § 28-105 

that does not include a period of post-release supervision. See, 

also, State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018) 

(indeterminate sentence is minimum term and maximum term 

or range of time for which defendant is to be incarcerated, even 

if minimum and maximum number are same).

The district court sentenced Wells to 3 years’ imprisonment 

for making terroristic threats, with the sentence concurrent with 

count II, but consecutive to count I (both Class II felonies). 

Having considered the relevant factors in this case, we find 

that Wells’ sentence on count III was not excessive. However, 

as noted by the State, the sentence on count III needed to be an 

indeterminate sentence pursuant to § 29-2204.02(4), because 

Wells was also sentenced on the two Class II felonies; the 

court’s imposition of a determinate sentence, rather than an 

indeterminate sentence, on count III constitutes plain error. 

Given this plain error, we vacate Wells’ sentence for his conviction on count III and remand that count for resentencing. 

See State v. Thompson, 301 Neb. 472, 919 N.W.2d 122 (2018) 

(finding plain error and vacating sentences and remanding 

cause for resentencing where sentences did not comply with 

§ 29-2204.02(4)). See, also, State v. Vanderheiden, supra.

Counts IV Through VII

A similar issue exists with respect to the sentences imposed 

on the four misdemeanor counts. Wells was convicted of two 
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counts of second degree false imprisonment, each a Class I 

misdemeanor (counts IV and V); one count of third degree 

assault, a Class I misdemeanor (count VI); and one count of 

“Criminal Mischief $500-$1,500,” a Class II misdemeanor 

(count VII). A Class I misdemeanor is punishable by up to 1 

year’s imprisonment, a $1,000 fine, or both. See Neb. Rev. 

Stat. § 28-106 (Reissue 2016). And a Class II misdemeanor is 

punishable by up to 6 months’ imprisonment, a $1,000 fine, or 

both. See § 28-106.

[5] Ordinarily, a sentence of imprisonment for a misdemeanor is served in the county jail, but when the sentence is to 

be served concurrently or consecutively with a felony conviction and the combined sentences total more than 1 year, the 

misdemeanor sentence may be served under the jurisdiction 

of the Department of Correctional Services. See § 28-106(2). 

When a sentence for a misdemeanor is imposed consecutively 

or concurrently with sentences for felony convictions, the 

felony classifications will dictate whether the misdemeanor 

sentence should be a determinate or indeterminate sentence. 

Section 29-2204.02(5) states:

For any sentence of imprisonment for a misdemeanor 

imposed consecutively or concurrently with a sentence 

of imprisonment for a Class III, IIIA, or IV felony for an 

offense committed on or after August 30, 2015, the court 

shall impose a determinate sentence within the applicable 

range in section 28-106 unless the person is also committed to the Department of Correctional Services in accord

ance with section 29-2204 for (a) a sentence of imprisonment for a Class III, IIIA, or IV felony committed prior to 

August 30, 2015, or (b) a sentence of imprisonment for a 

Class I, IA, IB, IC, ID, II, or IIA felony.

In this case, the misdemeanor sentences were imposed 

concurrently with count III (terroristic threats, a Class IIIA 

felony), which ordinarily would have called for determinate 

sentences. However, as noted above, § 29-2204.02(5) provides an exception to the determinate sentences, because 
- 133 -

Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

STATE v. WELLS

Cite as 28 Neb. App. 118

Wells was also committed to the Department of Correctional 

Services for sentences of imprisonment on his convictions for 

his Class II felonies.

The district court sentenced Wells to determinate sentences 

of 1 year’s imprisonment for each count of second degree false 

imprisonment and for the third degree assault, and it sentenced 

Wells to 6 months’ imprisonment for the criminal mischief. 

The misdemeanor sentences (counts IV, V, VI, and VII), along 

with count II (Class II felony) and count III (Class IIIA felony), were to run concurrently with each other but consecutive 

to count I (Class II felony). Having considered the relevant 

factors in this case, we find that Wells’ sentences on counts 

IV through VII were not excessive. However, the sentences on 

counts IV through VII needed to be indeterminate sentences 

pursuant to § 29-2204.02(5), because Wells was also sentenced 

on a Class IIIA felony and two Class II felonies; the court’s 

imposition of determinate, rather than indeterminate, sentences 

on counts IV through VII constitutes plain error. Given this 

plain error, we vacate Wells’ sentences for his convictions on 

counts IV through VII and remand those counts for resentencing. See State v. Thompson, 301 Neb. 472, 919 N.W.2d 122 

(2018). See, also, State v. Vanderheiden, No. A-19-279, 2019 

WL 3934770 (Neb. App. Aug. 20, 2019) (selected for posting 

to court website).

CONCLUSION

For the reasons stated above, we affirm the sentences 

imposed on Wells as to counts I and II. However, we find 

plain error as to the sentences on the remaining counts. Thus, 

we vacate the sentences imposed on counts III through VII, 

and we remand the matter to the district court for resentencing 

on counts III through VII in accordance with § 29-2204.02(4) 

and (5).

Affirmed in part, and in part vacated 

and remanded for resentencing.