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STATE v. JONES

Cite as 297 Neb. 557

State of Nebraska, appellee, v. 

Daniel Lee Jones, appellant.

___ N.W.2d ___

Filed August 18, 2017. No. S-16-1001.

1. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

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

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

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

3. Constitutional Law: Sentences. Whether a sentence constitutes cruel 

and unusual punishment in violation of the Eighth Amendment presents 

a question of law.

4. Judgments: Appeal and Error. When reviewing a question of law, 

an appellate court reaches a conclusion independent of the lower 

court’s ruling.

5. Constitutional Law: Minors: Homicide: Sentences. The Eighth 

Amendment forbids a state sentencing scheme that mandates life in 

prison without the possibility of parole for a juvenile offender convicted 

of homicide.

6. Minors: Homicide: Sentences. A sentencing court must consider specific, individualized factors before handing down a sentence of life 

imprisonment without parole for a juvenile convicted of a homicide.

Appeal from the District Court for Sarpy County: David K. 

Arterburn, Judge. Affirmed.

Julie E. Bear, of Reinsch, Slattery, Bear & Minahan, P.C., 

L.L.O., for appellant.

Nebraska Supreme Court Online Library

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

10/06/2017 08:11 AM CDT
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STATE v. JONES

Cite as 297 Neb. 557

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

Vincent for appellee.

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

Kelch, and Funke, JJ.

Miller-Lerman, J.

NATURE OF CASE

Daniel Lee Jones pled no contest to first degree murder in 

1999 and was sentenced to imprisonment for life. Jones was 16 

years old at the time of the murder, and therefore, his life sentence was vacated in 2015 pursuant to Miller v. Alabama, 567 

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

was granted a resentencing. After a hearing, the district court 

for Sarpy County resentenced Jones to imprisonment for 80 

years to life. Jones appeals his resentencing. We affirm.

STATEMENT OF FACTS

Jones was charged with first degree murder and use of a 

weapon to commit a felony in connection with the stabbing 

death of Scott Catenacci. Jones’ birth date is November 7, 

1981. The killing occurred on or about September 29, 1998. 

Pursuant to a plea agreement, Jones pled no contest to first 

degree murder and the State dismissed the use of a weapon 

charge. The factual basis presented by the State at the plea 

hearing indicated that Jones, in concert with other defendants, 

had attacked Catenacci and stabbed him to death. The attack 

on Catenacci, having been discussed several days beforehand, 

was premeditated, deliberate, and malicious. Jones stabbed 

Cateneacci several times, and Catenacci died as a result of the 

wounds. Jones was convicted, and on June 28, 1999, the district court sentenced him to imprisonment for life.

Jones’ first direct appeal was dismissed for failure to pay the 

statutory docket fee, but Jones obtained a new direct appeal 

as postconviction relief. Jones’ conviction and sentence were 

affirmed by this court in the new direct appeal. State v. Jones, 

274 Neb. 271, 739 N.W.2d 193 (2007).
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STATE v. JONES

Cite as 297 Neb. 557

On June 25, 2012, the U.S. Supreme Court held in Miller, 

supra, that “mandatory life without parole for those under 

the age of 18 at the time of their crimes violates the Eighth 

Amendment’s prohibition on ‘cruel and unusual punishments.’” 567 U.S. at 465. Although the Court in Miller concluded that the Eighth Amendment prohibited a mandatory 

life sentence without parole, the Court allowed the possibility that a juvenile convicted of a homicide offense could be 

sentenced to life in prison, but only after “consideration of 

the juvenile’s special circumstances in light of the principles 

and purposes of juvenile sentencing.” See Montgomery v. 

Louisiana, ___ U.S. ____, 136 S. Ct. 718, 725, 193 L. Ed. 2d 

599 (2016). In response to Miller, the Nebraska Legislature 

enacted Neb. Rev. Stat. § 28-105.02 (Reissue 2016), which, 

inter alia, sets forth mitigating factors that a court must consider when sentencing a juvenile convicted of a Class IA 

felony. In State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 

(2014), we held that the rule announced in Miller v. Alabama, 

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

applied retroactively to a case on collateral review. See, also, 

Montgomery, supra.

On June 21, 2013, Jones, who was 16 years old at the time 

of the murder, filed a motion for postconviction relief based on 

Miller. After this court’s holding in Mantich and after an evidentiary hearing, the district court on July 9, 2015, sustained 

Jones’ motion and, as postconviction relief, vacated his sentence and set the matter for resentencing.

In August 2016, the court held a mitigation hearing as 

part of the resentencing. At the mitigation hearing, Jones 

presented evidence including the deposition testimony of a 

certified child and adult psychologist regarding adolescent 

brain development and the significant differences between 

juveniles and adults. Jones presented live testimony of witnesses including Jones’ sister, who testified regarding Jones’ 

childhood experiences and his home and family life while 

growing up. She generally testified that the family moved 
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STATE v. JONES

Cite as 297 Neb. 557

frequently during Jones’ childhood and mostly lived in areas 

of poor socioeconomic status that were prone to crime and 

gang violence, that Jones never knew or was involved with 

his father when growing up, that their mother had a succession of boyfriends who were abusive, and that Jones had very 

little supervision and ended up going “along with the [wrong] 

crowd.” Jones also presented testimony by a unit manager in 

the prison where Jones was incarcerated that Jones was quiet, 

followed the rules, and was not a problem inmate. Jones also 

presented testimony by a clinical psychologist who had performed a comprehensive mental health evaluation of Jones 

for purposes of the mitigation hearing. He testified regarding 

various findings with respect to Jones’ mental and psychological functioning and his neuropsychological development. He 

further testified, inter alia, that Jones had matured over time 

and had supports in place for employability and residence in 

the community. He opined in a report that Jones was at a low 

risk for future violence.

The district court resentenced Jones on October 3, 2016. 

At the sentencing hearing, the court stated that it had considered Jones’

age, now and at the time of the offense, his mentality, 

education, experience, social and cultural background, 

past criminal record or record of law-abiding conduct, 

the motivation for the offense, as well as the nature and 

severity of the offense and the significant amount of violence involved in the commission of the crime.

The court stated that it had also considered, inter alia,

all of the evidence adduced at the mitigation hearing, 

including, but not limited to, the expert testimony, the 

pertinent case law, including, but not limited to, the 

rationale underlying the case [Miller, supra], . . . the 

records of the Department of Corrections concerning 

[Jones’] actions and behavior while incarcerated,

and “the factors set forth in [§] 28-105.02(2).” The court also 

noted that the crime committed by Jones “was an extremely 
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Cite as 297 Neb. 557

heinous crime” involving a “brutal, brutal murder” and that 

Jones had “participated both in planning and the execution of the crime.” The court concluded that “a sentence of 

some severity is required but not such severity that [Jones] 

would never have hope of being released from prison.” The 

court resentenced Jones to imprisonment for 80 years to life 

with credit for time served and statutory parole eligibility at 

age 56.

Jones appeals the district court’s resentencing.

ASSIGNMENTS OF ERROR

Jones claims, restated and summarized, that his sentence of 

80 years’ to life imprisonment with parole eligibility at age 

56 is excessive and, in particular, that the court (1) abused its 

discretion by imposing a de facto life sentence which violated 

constitutional protections against cruel and unusual punishment 

and denied him a meaningful opportunity for release based 

upon demonstrated maturity and rehabilitation, (2) violated his 

constitutional due process rights when it failed to make specific findings to demonstrate that it adequately considered his 

age-related characteristics, and (3) violated his constitutional 

rights against cruel and unusual punishment by imposing a 

sentence which was not proportional.

STANDARDS OF REVIEW

[1,2] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by 

the trial court. State v. Jackson, ante p. 22, ___ N.W.2d ___ 

(2017); State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 

(2014). 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. Id.

[3,4] Whether a sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment presents a 

question of law. State v. Nollen, 296 Neb. 94, 892 N.W.2d 81 
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STATE v. JONES

Cite as 297 Neb. 557

(2017). When reviewing a question of law, an appellate court 

reaches a conclusion independent of the lower court’s ruling. Id.

ANALYSIS

[5,6] In Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 

183 L. Ed. 2d 407 (2012), the U.S. Supreme Court held the 

Eighth Amendment forbids a state sentencing scheme that 

mandates life in prison without the possibility of parole for a 

juvenile offender convicted of homicide. Miller did not “categorically bar” the imposition of a sentence of life imprisonment without parole, but, instead, “held that a [sentencing 

court] must consider specific, individualized factors before 

handing down a sentence of life imprisonment without parole 

for a juvenile” convicted of a homicide. Mantich, 287 Neb. 

at 339-40, 842 N.W.2d at 730. We have previously held, in 

Mantich, that Miller applied retroactively and that therefore, 

any juvenile sentenced to mandatory life imprisonment without 

parole could have his or her sentence vacated and the cause 

remanded for resentencing.

In response to Miller, the Nebraska Legislature amended 

the sentencing laws for juveniles convicted of first degree 

murder.

Section 28-105.02, which applies to this case, provides 

as follows:

(1) Notwithstanding any other provision of law, the 

penalty for any person convicted of a Class IA felony for 

an offense committed when such person was under the 

age of eighteen years shall be a maximum sentence of not 

greater than life imprisonment and a minimum sentence 

of not less than forty years’ imprisonment.

(2) In determining the sentence of a convicted person 

under subsection (1) of this section, the court shall consider mitigating factors which led to the commission of 

the offense. The convicted person may submit mitigating 

factors to the court, including, but not limited to:
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Cite as 297 Neb. 557

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

offense;

(b) The impetuosity of the convicted person;

(c) The convicted person’s family and community 

environment;

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

risks and consequences of the conduct;

(e) The convicted person’s intellectual capacity; and

(f) The outcome of a comprehensive mental health 

evaluation of the convicted person conducted by an adolescent mental health professional licensed in this state. 

The evaluation shall include, but not be limited to, interviews with the convicted person’s family in order to learn 

about the convicted person’s prenatal history, developmental history, medical history, substance abuse treatment 

history, if any, social history, and psychological history.

With these principles in mind, we analyze Jones’ assignments of error, each of which challenges the appropriateness of 

the sentence imposed at the resentencing.

The Sentencing Court Did Not Impose a 

De Facto Life Sentence in Violation of 

the Eighth Amendment and Neb. 

Const. art. I, §§ 9 and 15.

Jones asserts that his sentence of 80 years’ to life imprisonment “is the functional equivalent of life without parole.” 

Brief for appellant at 27. In this regard, at the sentencing 

hearing, Jones submitted and the district court considered life 

expectancy information for the purpose of illustrating that convicted persons incarcerated in their youth can expect a shorter 

lifespan. Jones contends that convicted persons incarcerated 

in their youth may never reach parole eligibility age or that if 

they reach parole eligibility at an advanced age, the sentence 

is tantamount to a life sentence. Jones similarly contends that 

a “geriatric parole” does not afford him an opportunity for 

meaningful release. Id.
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STATE v. JONES

Cite as 297 Neb. 557

We have recently considered and rejected these contentions. In State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017), 

we declined to find that life expectancy is the sole controlling issue, but we acknowledged that it is a matter the sentencing court can consider. In Smith, we also concluded that 

U.S. Supreme Court precedent indicated that the “meaningful 

opportunity” requirement requires a “meaningful and realistic 

opportunity to obtain release” from prison but did not refer 

to the enjoyment of life after release. 295 Neb. at 979, 892 

N.W.2d at 66.

We continue to believe our conclusions in Smith are sound, 

and we apply them here. In this regard, we note that when 

resentencing Jones, the district court explicitly considered 

Jones’ anticipated release and intended to give Jones “hope of 

being released from prison.” Given the record and our jurisprudence, we find no merit to Jones’ contention that his parole 

eligibility at age 56 is unconstitutional.

The District Court Did Not Err When It Did Not 

Make Specific Findings of Fact Regarding 

Age-Related Characteristics.

Jones contends that his constitutional rights to due process 

were violated because the district court did not make specific 

findings regarding age-related characteristics. We recently 

considered and rejected a comparable argument in State v. 

Garza, 295 Neb. 434, 888 N.W.2d 526 (2016). In Garza, 

we stated, “[The appellant] argues that when the sentencing 

court imposed the 90-to-90-year sentence, it failed to make 

a specific finding that [he] was that ‘“rare juvenile offender 

whose crime reflects irreparable corruption”’ as opposed to 

‘“transient immaturity.”’” 295 Neb. at 447, 888 N.W.2d 

at 534. Like the defendant in Garza, because Jones was 

not sentenced to life imprisonment without parole, we find 

no merit to Jones’ argument that the sentencing court was 

required to make specific findings including a finding regarding “irreparable corruption.” See, also, State v. Jackson, ante
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STATE v. JONES

Cite as 297 Neb. 557

p. 22, ___ N.W.2d ___ (2017); State v. Nollen, 296 Neb. 94, 

892 N.W.2d 81 (2017); State v. Mantich, 287 Neb. 320, 842 

N.W.2d 716 (2014).

Jones suggests that other courts have chosen to require findings of fact. Compare Sen v. State, 301 P.3d 106 (Wyo. 2013) 

(stating in case imposing life sentence without parole that 

findings of fact are generally indicated). However, as Jones 

acknowledges, Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 

2455, 183 L. Ed. 2d 407 (2012), did not impose a formal factfinding requirement where the sentence includes the possibility 

of parole. Accordingly, we continue to adhere to our previously 

announced jurisprudence in this area.

We have reviewed the record and the resentencing court’s 

order. By the announcement of its consideration of the factors 

in § 28-105.02(2), not repeated here, as well as the customary 

factors in imposing sentences, we believe the sentencing court 

met the due process required by the Constitution, Miller, and 

Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193 

L. Ed. 2d 599 (2016).

The Sentence Is Not Unconstitutionally 

Disproportionate.

Jones argues that in his case, the punishment does not fit 

the offender, based on “‘the basic “precept of justice that 

punishment for crime should be graduated and proportioned”’ 

to both the offender and the offense.” See Miller, 567 U.S. 

at 469.

Jones urges us to give considerable weight to his youth 

because, although his age was considered in sentencing, he 

claims that his crime reflects “‘“unfortunate yet transient 

immaturity”’” and that thus, his sentence still violates the 

Eighth Amendment. See Montgomery, 136 S. Ct. at 734. In 

Montgomery, the Court recognized that because of a juvenile 

homicide offender’s “‘diminished culpability and heightened 

capacity for change,’” it should be uncommon to deny a 

juvenile offender parole except in cases involving “the rare 
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Cite as 297 Neb. 557

juvenile offender who exhibits such irretrievable depravity that 

rehabilitation is impossible.” 136 S. Ct. at 733. Jones compares 

his sentence to those of other juvenile homicide offenders and 

contends that his prior immaturity at age 16, coupled with 

improved behavior since his coming of age, establishes his 

capacity for remorse and reform.

In this regard, at the sentencing hearing, Jones submitted 

and the court considered a matrix of sentences imposed on 

other juveniles resentenced in Nebraska under Miller. Jones 

suggests his sentence was comparatively more severe. We do 

not agree.

We have previously considered and rejected a broad proportionality claim in Mantich, supra. In Mantich, we stated:

The Eighth Amendment “prohibits not only barbaric 

punishments, but also sentences that are disproportionate to the crime committed.” The U.S. Supreme Court 

has characterized this as a “‘narrow proportionality principle’” which “‘does not require strict proportionality 

between crime and sentence’” but, rather, “‘forbids only 

extreme sentences that are “grossly disproportionate” to 

the crime.’”

287 Neb. at 353-54, 842 N.W.2d at 738.

In this case, we recognize Jones’ youthful status in that he 

was 6 weeks shy of his 17th birthday when he participated 

in the murder. However, evidence showed Jones planned 

the murder in advance, executed the crime, and, after seeing it through to completion, undertook acts of concealment, 

including disposing of the knife used during the murder and 

lying to the police. Jones’ actions were not merely youthful 

impulse; they were calculated, malicious, and violent. The 

sentencing court stated “a sentence of some severity” was 

required. We agree with the sentencing court that the sentence 

is appropriate for the offense and offender. We therefore conclude that the sentence was not disproportionate under the 

Eighth Amendment.
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STATE v. JONES

Cite as 297 Neb. 557

CONCLUSION

The appropriateness of a sentence is necessarily a subjective 

judgment and includes the sentencing judge’s observations of 

a convicted person’s demeanor and attitude and all of the facts 

and circumstances surrounding his life. The sentencing court 

adhered to these principles. Upon our review of the record, we 

conclude that Jones’ sentence of 80 years’ to life imprisonment 

with parole eligibility at age 56 is in accordance with constitutional principles; Miller v. Alabama, 567 U.S. 460, 132 S. 

Ct. 2455, 183 L. Ed. 2d 407 (2012); and § 28-105.02, and we 

therefore affirm Jones’ sentence.

Affirmed.