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301 Nebraska Report

STATE v. SHAULL

Cite as 301 Neb. 82

State of Nebraska, appellee, v.

Steven D. Shaull, appel

___ N.W.2d ___

Filed September 14, 2018. No. S-17-943.

1. Sentences: Appeal and Error. Where a sentence imposed within the 

statutory limits is alleged to be excessive, an appellate court must determine whether the sentencing court abused its discretion in considering 

and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

2. Judgments: Appeal and Error. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

Appeal from the District Court for Lancaster County: Lor

A. Maret, Judge. Affirme

Joseph D. Nigro, Lancaster County Public Defender, John 

C. Jorgensen, and Sarah L. Burghaus, Senior Certified Law 

Student, for appellant.

Douglas J. Peterson, Attorney General, and Joe Meyer for 

appellee.

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

Papik, and Freudenberg, 

Heavican, C

INTRODUCTION

Steven D. Shaull was convicted of theft by deception and 

sentenced to 2 years’ imprisonment and 12 months’ postrelease 

Nebraska Supreme Court Online Library

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

09/14/2018 08:09 AM CDT
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STATE v. SHAULL

Cite as 301 Neb. 82

supervision. He appeals from the conditions set by the district 

court. We affirm.

FACTUAL BACKGROUND

On June 29, 2017, Shaull was charged by amended information with theft by deception, a Class IV felony pursuant 

to Neb. Rev. Stat. § 28-518 (Reissue 2016), in connection 

with the fraudulent sale of a vehicle engine through an online 

auction service. Shaull, a resident of Anaheim, California, 

received $11,500 for the engine from a resident of Lancaster 

County, Nebraska, but never delivered the engine. An investigation showed that Shaull sold, but failed to deliver, the same 

engine to individuals in multiple states.

Shaull was extradited to Nebraska and eventually pled 

no contest to theft by deception. As noted, Shaull was sentenced to 2 years’ imprisonment and 1 year of postrelease 

supervision. That supervision was subject to 20 conditions, 

which are set forth in the district court’s order of postrelease 

supervision.

At the sentencing hearing, Shaull’s counsel, citing to State 

v. Phillips,

1

 which was at the time pending with this court, 

objected to the terms of postrelease supervision. Counsel 

specifically argued that because Shaull was to be extradited 

to Kentucky to face charges there, the conditions specific 

to remaining in Nebraska were not feasible. Counsel also 

argued that the imposition of various fees was error, because 

Shaull was indigent. Counsel’s objections were noted and 

overruled.

Shaull appeals.

ASSIGNMENT OF ERROR

Shaull assigns that the district court abused its discretion in failing to impose terms and conditions of postrelease 

supervision that (1) could be served by Shaull while he was 

1 State v. Phillips, 297 Neb. 469, 900 N.W.2d 522 (2017).
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incarcerated in another state and (2) were reasonably related 

to his rehabilitation.

STANDARD OF REVIEW

[1,2] Where a sentence imposed within the statutory limits 

is alleged to be excessive, an appellate court must determine 

whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable 

legal principles in determining the sentence to be imposed.2

An abuse of discretion occurs when a trial court’s decision 

is based upon reasons that are untenable or unreasonable or 

if its action is clearly against justice or conscience, reason, 

and evidence.3

ANALYSIS

On appeal, Shaull assigns that the district court erred by 

imposing terms and conditions for his postrelease supervision 

that were not related to his rehabilitation and that could not 

be met, because he would be serving that term of postrelease 

supervision in the custody of another state’s criminal justice system.

Postrelease supervision is a relatively new concept in 

Nebraska. Both Neb. Rev. Stat. §§ 28-105 and 29-2204.02 

(Supp. 2017) authorize the imposition of postrelease supervision as part of a determinate sentence. Section 28-105(5) 

provides that “[a]ll sentences of post-release supervision shall 

be served under the jurisdiction of the Office of Probation 

Administration and shall be subject to conditions imposed pursuant to section 29-2262 and subject to sanctions authorized 

pursuant to section 29-2266.02.”

Neb. Ct. R. § 6-1904(A) (rev. 2016) provides the process to 

undertake when imposing a sentence of postrelease supervision. According to that rule:

2 Id.

3 Id.
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In cases requiring a determinate sentence pursuant to 

Neb. Rev. Stat. § 29-2204.02, the court shall, at the time 

a sentence is pronounced, impose a term of incarceration 

and a term of post-release supervision pursuant to Neb. 

Rev. Stat. § 29-2204.02(1), and shall enter a separate 

post-release supervision order that includes conditions 

pursuant to Neb. Rev. Stat. § 29-2262. The court shall 

specify, on the record, that conditions of the order of 

post-release supervision may be modified or eliminated 

pursuant to Neb. Rev. Stat. § 29-2263(3).

Our case law generally provides that a conviction and sentence in a criminal case is a final, appealable order.4

 And we 

held in State v. Phillips that a term of postrelease supervision 

ordered alongside a determinate sentence is final.5

Section 6-1904(A) requires the conditions to be imposed 

upon the defendant at the time of sentence. Subsections (B) and 

(C) of § 6-1904 provide that prior to an individualized release 

date (45 days for inmates incarcerated with the Department of 

Correctional Services and 30 days if in the county jail), the 

“court shall receive a post-release supervision plan” and “shall 

consider modification to the post-release supervision order, 

upon application and recommendation, based upon the postrelease supervision plan from the probation office.” In the case 

of inmates within the Department of Correctional Services, 

the “plan shall be collaboratively prepared by the Office of 

Probation Administration and the Department of Correctional 

Services to provide information regarding performance and 

programming while incarcerated, an updated risk/needs assessment, along with a community needs and service assessment.” 

And subsection (D) of § 6-1904 provides that “the court shall, 

if applicable, modify the post-release supervision order” within 

4 See, generally, State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

5 State v. Phillips, supra note 1.
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30 days (Department of Correctional Services inmates) or 15 

days (county jail).

The imposition of conditions at the time of sentencing is 

done to guide a defendant to needed services during incarceration. And our rule provides that conditions may need to be 

modified upon a defendant’s “performance and programming 

while incarcerated.”6

On appeal, Shaull assigns that the district court erred in 

imposing conditions to his postrelease supervision (1) that he 

cannot comply with because he will be incarcerated out of 

state and (2) that do not bear a reasonable relationship to the 

purposes of postrelease supervision—namely leading a lawabiding life.

We do not address Shaull’s second argument, because a 

review of the record reveals that no objection was made to any 

of the conditions of employment on the basis that they did not 

bear a reasonable relationship to the purposes of his supervision. As such, Shaull has waived such objections.

We turn then to Shaull’s first argument. Shaull argues that he 

will be unable to comply with the conditions of his postrelease 

supervision, because he will be extradited to another state once 

he finishes serving his term of imprisonment in Nebraska.

While counsel argued that Shaull would be extradited, that 

action had not taken place at the time of sentencing. Nor was 

there any evidence presented that such extradition was a certainty. In the event such extradition takes place, we observe 

that the conditions of postrelease supervision are modifiable 

upon motion of the defendant or on the court’s own motion.7

Thus, if Shaull were to be extradited, he could seek a modification to those terms with which he feels he would be unable 

to comply.

6 § 6-1904(B).

7 Neb. Rev. Stat. § 29-2263(3) (Supp. 2017); § 6-1904.
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We review the imposition of a sentence for an abuse of 

discretion. The sentence and conditions imposed are within 

the statutory limits.8 We have reviewed the presentence report 

and further conclude that the sentence and conditions are not 

otherwise an abuse of discretion.9 Shaull’s arguments on appeal 

are without merit.

CONCLUSION

The sentence of the district court is affirmed.

Affirmed

8 § 28-105.

9 See State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).