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STATE v. CHACON

Cite as 296 Neb. 203

State of Nebraska, appellee, v. 

Jesus A. Chacon, appellant.

___ N.W.2d ___

Filed March 31, 2017. Nos. S-16-419, S-16-425.

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

statutory limits is alleged on appeal to be excessive, the 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. Sentences. When imposing a sentence, the sentencing judge should 

consider 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 violence involved in the 

commission of the offense. The sentencing court is not limited to any 

mathematically applied set of factors.

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. Appeal and Error. An appellate court always reserves the right to note 

plain error which was not complained of at trial or on appeal.

5. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower 

court’s determination.

6. ____: ____. Statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation to 

ascertain the meaning of statutory words which are plain, direct, and 

unambiguous.

7. Statutes. It is not within the province of a court to read a meaning into 

a statute that is not warranted by the language; neither is it within the 

Nebraska Supreme Court Online Library

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

06/23/2017 01:13 AM CDT
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province of a court to read anything plain, direct, or unambiguous out 

of a statute.

8. Statutes: Legislature: Intent. In reading a statute, a court must determine and give effect to the purpose and intent of the Legislature as 

ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.

9. ____: ____: ____. Components of a series or collection of statutes 

pertaining to a certain subject matter are in pari materia and should 

be conjunctively considered and construed to determine the intent of 

the Legislature, so that different provisions are consistent, harmonious, 

and sensible.

10. Criminal Law: Statutes: Legislature: Sentences. Generally, when the 

Legislature amends a criminal statute by mitigating the punishment after 

the commission of a prohibited act but before final judgment, the punishment is that provided by the amendatory act unless the Legislature 

specifically provided otherwise.

11. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

Appeals from the District Court for Hall County: John P. 

Icenogle, Judge. Judgment in No. S-16-419 affirmed. Judgment 

in No. S-16-425 affirmed in part and in part vacated, and cause 

remanded with directions.

Matthew A. Works, Deputy Hall County Public Defender, 

for appellant.

Douglas J. Peterson, Attorney General, and Sarah E. Marfisi 

for appellee.

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

Kelch, and Funke, JJ.

Kelch, J.

INTRODUCTION

In these consolidated appeals, Jesus A. Chacon challenges 

his sentences for his convictions of two counts of possession 

of a controlled substance and one count of driving under the 

influence. In both cases, Chacon assigns that his sentences 
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Cite as 296 Neb. 203

were excessive. We affirm Chacon’s sentence for possession 

of a controlled substance in case No. S-16-419 and his sentence for driving under the influence in case No. S-16-425. 

However, based on our analysis of 2015 Neb. Laws, L.B. 605, 

and 2016 Neb. Laws, L.B. 1094, we vacate Chacon’s sentence 

for possession of a controlled substance in case No. S-16-425 

and remand the cause for resentencing in accordance with 

this opinion.

BACKGROUND

In case No. S-16-419, the State brought criminal charges 

against Chacon as a result of events that occurred on July 16, 

2015. The State’s information charged that on July 16, Chacon 

(1) criminally impersonated another person and (2) possessed a 

controlled substance, methamphetamine.

Case No. S-16-425 arises from events that occurred on 

December 28, 2015. The State’s information alleged that on 

that date, Chacon unlawfully (l) possessed a controlled substance, methamphetamine; (2) tampered with physical evidence; (3) operated a motor vehicle while under the influence, 

second offense; and (4) operated a motor vehicle during a 

period of revocation, second offense.

On January 29, 2016, pursuant to a plea agreement encompassing both cases Nos. S-16-419 and S-16-425, and a third 

case not at issue on this appeal, Chacon pled no contest to 

the two Class IV felony charges of possession of a controlled 

substance and the single Class W misdemeanor charge of driving under the influence, second offense. In return for Chacon’s 

pleas, the State agreed to dismiss all other charges and to 

recommend concurrent sentences for all convictions resulting 

from the two cases now on appeal.

According to the factual basis provided by the State, on July 

16, 2015, law enforcement officers in Hall County, Nebraska, 

made contact with Chacon at a residence regarding loud music. 

When officers arrived, Chacon was at his vehicle. Chacon initially identified himself with a false name, but after a search 
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STATE v. CHACON

Cite as 296 Neb. 203

of the false name returned warrants and prompted officers 

to place Chacon under arrest, he admitted that his name was 

“Jesus Chacon” and that the initial name he had given was 

inaccurate. An officer observed a baggie in the front seat of 

Chacon’s vehicle containing a white crystal-like substance 

which the officer believed to be methamphetamine. A search 

of Chacon’s correct name showed multiple warrants, and he 

was arrested and transported to Hall County jail. Subsequent 

testing of the crystal-like substance returned a positive result 

for methamphetamine, weighing 2.3 grams.

On December 28, 2015, officers in Hall County observed 

a vehicle fail to yield and then execute two turns without signaling. Officers initiated a traffic stop and made contact with 

Chacon, who was driving the vehicle. A license check revealed 

that Chacon’s license was suspended. Officers observed that 

Chacon had bloodshot eyes and “rancid” breath; and Chacon 

was grinding his teeth and had rigid muscle tone, indicative 

of a person under the influence of a stimulant drug. Officers 

further observed a plastic baggie between the front passenger 

door and the passenger seat.

Chacon performed poorly on field sobriety tests. A preliminary breath test showed no alcohol content in his breath. 

Officers arrested Chacon and transported him to Hall County 

jail, where he was determined to be under the influence of 

a drug. A search of Chacon’s vehicle revealed methamphetamine. Officers also searched Chacon’s person and discovered a coin-sized Ziploc bag containing methamphetamine in 

his pocket.

The district court accepted Chacon’s pleas of no contest to 

possession of a controlled substance in cases Nos. S-16-419 

and S-16-425 and his plea of no contest to driving under the 

influence in case No. S-16-425. Regarding enhancement, the 

parties stipulated that the driving under the influence offense 

was a second offense and that Chacon had previously been 

convicted of driving under the influence in Dawson County, 

Nebraska, on June 19, 2014. The district court enhanced the 
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STATE v. CHACON

Cite as 296 Neb. 203

penalty to driving under the influence, second offense, and 

then found Chacon guilty of all three charges. The district court 

ordered a presentence investigation and scheduled sentencing 

for March 30, 2016.

Chacon was 45 years old at the time of the presentence 

investigation. He had graduated from high school and had 

worked in the construction and meatpacking industries, but 

had been unemployed since 2014. According to the presentence investigation, Chacon was divorced, with one child, 

age 16, residing with her mother in Arizona. Chacon reported 

that his closest companions served as positive supporters 

in his life and did not have issues with substance abuse or 

prior arrests.

The presentence investigation revealed that Chacon has 

a long criminal history beginning in 1992, with charges 

filed in at least 18 prior incidents. Chacon’s criminal history includes three convictions related to theft, three previous convictions for driving under the influence, and four 

previous convictions for driving under suspension and/or 

revocation or without an operator’s license. Further, at the 

time of the presentence investigation, Chacon had an open 

charge for second degree assault, a Class IV felony offense, 

in Dawson County. The presentence investigation noted that 

although the criminal impersonation charge was dismissed in 

this case pursuant to the plea deal, Chacon’s record shows 

several aliases.

Chacon had previously been sentenced to probation at least 

four times, but he reoffended during at least three of those 

terms, in 1992 and 2015. Chacon was court-ordered to complete a drug assessment in 2014 but did not attend that appointment. The presentence investigation rated him as an overall 

high risk for recidivism, with high risk in the categories of 

criminal history and procriminal attitude, and very high risk in 

the category of drug and/or alcohol abuse.

The presentence investigation also described significant 

mental health issues. Chacon experienced suicidal ideation 
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Cite as 296 Neb. 203

in 2007 when his marriage ended and again in 2014 when 

his girlfriend ended their relationship. During these periods, 

Chacon used cocaine or methamphetamine “to cope.” The 

presentence investigation reflects that Chacon had been hospitalized and committed due to his mental health issues, but 

he refused to engage in the treatment process and did not connect his mental health issues with his drug use. At the time of 

the presentence investigation, Chacon was taking antidepressant medication. Chacon reported that he would participate in 

any recommended treatment for substance abuse. The presentence investigation anticipated that Chacon’s inability to speak 

English could hinder his recovery.

On March 30, 2016, the district court conducted a sentencing hearing for both cases. The record demonstrates that 

in imposing its sentences, the district court heard evidence 

regarding Chacon’s history and character, as well as the nature 

and circumstances of each crime. The district court found that 

a sentence of probation would be unsuitable for protecting the 

public, because Chacon had a history of failed probationary 

sentences and would be best served by a treatment program 

facilitated by a correctional institution.

In case No. S-16-419, the case arising from the July 16, 

2015, possession offense, the district court sentenced Chacon to 

a period of incarceration with the Department of Correctional 

Services for 20 months to 5 years.

In case No. S-16-425, the case arising from the December 

28, 2015, offenses, the district court sentenced Chacon to 2 

years’ imprisonment with 12 months of postrelease supervision for possession of a controlled substance. For driving 

under the influence, the district court sentenced Chacon to 

6 months’ incarceration, fined him $500, and suspended his 

driving privileges for 18 months. Chacon was given credit 

for 135 days of time served against his sentences in case 

No. S-16-425.

The district court sentenced Chacon concurrently on all 

three convictions.
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Cite as 296 Neb. 203

Chacon now appeals his sentences in cases Nos. S-16-419 

and S-16-425. We granted the State’s motion to consolidate 

the appeals.

ASSIGNMENT OF ERROR

In both cases, Chacon assigns that the district court imposed 

excessive sentences.

ANALYSIS

Possession of Controlled Substance

in Case No. S-16-419: 

No Abuse of Discretion

In case No. S-16-419, Chacon assigns and argues that the 

district court imposed an excessive sentence for possession of 

a controlled substance. However, he concedes, and we agree, 

that his sentence on that charge falls within the statutory limits. 

The criminal activity underlying case No. S-16-419 occurred 

in July 2015. As a result, Chacon pled no contest to possession of a controlled substance, a Class IV felony, in violation 

of Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2014). For acts 

committed prior to August 30, 2015, a Class IV felony is 

punishable by up to 5 years’ imprisonment, a $10,000 fine, 

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

and § 28-105(7) (Supp. 2015). See, also, State v. Aguallo, 294 

Neb. 177, 881 N.W.2d 918 (2016) (changes made to penalties 

for Class IV felonies by L.B. 605 do not apply to any offense 

committed prior to August 30, 2015). Accordingly, Chacon’s 

sentence of 20 months’ to 5 years’ incarceration falls within 

the statutory limits.

[1-3] Where a sentence imposed within the statutory limits 

is alleged on appeal to be excessive, the 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. State v. Oldson, 293 Neb. 718, 884 N.W.2d 

10 (2016). When imposing a sentence, the sentencing judge 
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should consider 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 violence involved in the commission of the 

offense. Id. The sentencing court is not limited to any mathematically applied set of factors. 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.

The record demonstrates that the district court sufficiently 

considered Chacon’s background and the aforementioned factors in imposing Chacon’s sentence in case No. S-16-419. At 

the sentencing hearing, the district court noted that a sentence 

of probation would not adequately protect the public in light 

of Chacon’s past history of failing to comply with probation 

and his need for inpatient substance abuse treatment. Further, 

the district court ordered Chacon’s presentence investigation, 

which reveals a criminal history spanning decades and details 

a failure to succeed on probation or take advantage of treatment opportunities.

Given these considerations, the district court properly exercised its discretion in imposing Chacon’s sentence for possession of a controlled substance in case No. S-16-419. See State 

v. Oldson, supra.

Possession of Controlled Substance

in Case No. S-16-425: 

Plain Error

Chacon assigns and argues that the district court imposed 

an excessive sentence for possession of a controlled substance 

in case No. S-16-425. He acknowledges that the sentence 

imposed was within the statutory limits in effect at that time, 

but he asserts that the district court nonetheless abused its 

discretion because, under the factors to be considered in 
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sentencing, the circumstances support a lesser penalty. As we 

explain below, we agree that the district court acted within 

the statutory limits in effect at the time when it sentenced 

Chacon to 2 years’ imprisonment with 12 months of postrelease 

supervision for possession of a controlled substance in case 

No. S-16-425. However, considering again, as we did above, 

Chacon’s criminal history, failed attempts at probation, and 

past resistance to treatment, we find that the district court did 

not abuse its discretion in sentencing him on this conviction. 

See State v. Oldson, supra.

[4] However, an appellate court always reserves the right 

to note plain error which was not complained of at trial or 

on appeal. State v. Samayoa, 292 Neb. 334, 873 N.W.2d 449 

(2015). With respect to Chacon’s felony sentence in case 

No. S-16-425, the State opines that plain error has occurred 

due to the doctrine enunciated in State v. Randolph, 186 

Neb. 297, 183 N.W.2d 225 (1971), and the interplay between 

L.B. 605 and L.B. 1094, the latter of which took effect after 

Chacon’s sentence. We agree.

[5-9] We begin by recounting the principles that govern our 

analysis. Statutory interpretation presents a question of law, 

which an appellate court reviews independently of the lower 

court’s determination. State v. Draper, 289 Neb. 777, 857 

N.W.2d 334 (2015); State v. Smith, 286 Neb. 77, 834 N.W.2d 

799 (2013). Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are 

plain, direct, and unambiguous. State v. Raatz, 294 Neb. 852, 

885 N.W.2d 38 (2016). It is not within the province of a court 

to read a meaning into a statute that is not warranted by the 

language; neither is it within the province of a court to read 

anything plain, direct, or unambiguous out of a statute. Id. In 

reading a statute, a court must determine and give effect to the 

purpose and intent of the Legislature as ascertained from the 

entire language of the statute considered in its plain, ordinary, 

and popular sense. Id. Components of a series or collection 
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of statutes pertaining to a certain subject matter are in pari 

materia and should be conjunctively considered and construed 

to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible. Id.

L.B. 605 became effective on August 30, 2015, prior to 

sentencing in the instant case and prior to the events that led 

the State to charge Chacon with possession of a controlled substance in case No. S-16-425. L.B. 605 amended Neb. Rev. Stat. 

§ 29-2260(5) (Supp. 2015), which provided:

For all sentences of imprisonment for Class III, IIIA, 

or IV felonies, other than those imposed consecutively 

or concurrently with a sentence to imprisonment for 

a Class I, IA, IB, IC, ID, II, or IIA felony, the court 

shall impose a determinate sentence within the applicable range in section 28-105, including a period of postrelease supervision.

(Emphasis supplied.) Therefore, at the time Chacon was sentenced, Nebraska law required prison sentences for Class IV 

felonies, except for those sentenced concurrently or consecutively with higher class felonies, to be determinate with a period 

of postrelease supervision. See § 29-2260(5). On March 30, 

2016, the district court sentenced Chacon concurrently for two 

Class IV felonies and a Class W misdemeanor. Thus, Chacon 

was not sentenced for a Class IV felony that was imposed 

consecutively or concurrently with a higher class felony. As of 

the date of Chacon’s sentencing for the Class IV felony in case 

No. S-16-425, § 28-105(1) and (7) (Supp. 2015) authorized a 

maximum penalty of 2 years’ imprisonment with 12 months’ 

postrelease supervision, a $10,000 fine, or both. Accordingly, 

the district court’s determinate sentence of 2 years’ imprisonment with a 12-month period of postrelease supervision fell 

within the statutory limits and followed the proper procedure 

for Class IV felonies as outlined in § 29-2260(5) at the time 

of sentencing.

However, on April 20, 2016, after sentencing, but while 

this matter was pending on appeal, L.B. 1094 took effect. 
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L.B. 1094 struck subsection (5) from § 29-2260 and added 

Neb. Rev. Stat. § 29-2204.02(4) (Reissue 2016), which 

provides:

For any sentence of imprisonment for a Class III, IIIA, 

or IV felony for an offense committed on or after August 

30, 2015, imposed consecutively or concurrently with 

(a) a sentence for a Class III, IIIA, or IV felony for 

an offense committed prior to August 30, 2015, or (b)

a sentence of imprisonment for a Class I, IA, IB, IC, 

ID, II, or IIA felony, the court shall impose an indeterminate sentence within the applicable range in section 

28-105 that does not include a period of post-release 

supervision, in accordance with the process set forth in 

section 29-2204.

(Emphasis supplied.) Had Chacon been sentenced pursuant 

to L.B. 1094, he would have received an indeterminate sentence without postrelease supervision for possession of a controlled substance in case No. S-16-425. This penalty, without 

postrelease supervision, would have been more favorable to 

Chacon than the sentence he received under the statute in 

effect at the time of sentencing.

[10] Under the Randolph doctrine, generally, when the 

Legislature amends a criminal statute by mitigating the punishment after the commission of a prohibited act but before final 

judgment, the punishment is that provided by the amendatory 

act unless the Legislature specifically provided otherwise. See 

State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971). But, 

the Randolph doctrine does not apply if the Legislature created a “new crime” rather than merely changing the penalty 

for an existing crime. See State v. Duncan, 291 Neb. 1003, 870 

N.W.2d 422 (2015).

Chacon’s sentence for possession of a controlled substance in case No. S-16-425 fits the criteria contemplated by 

the Randolph doctrine. We have already explained that the 

application of L.B. 1094 would mitigate Chacon’s sentence, 

which is not yet final, given that this direct appeal is still 
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pending. See State v. Duncan, supra (sentence on appeal is 

not final judgment until entry of final mandate). Furthermore, 

L.B. 1094’s sentencing changes to Class IV felonies do not 

constitute a “new crime,” and the Legislature did not specifically provide that the changes wrought by L.B. 1094 ought 

not apply retroactively to Class IV felonies that predate it. 

Indeed, Neb. Rev. Stat. § 83-1,135.02 (Cum. Supp. 2016) 

provides that L.B. 1094’s amendments to § 29-2204.02 “apply 

to all committed offenders under sentence, on parole, or on 

probation on or after April 20, 2016.” Chacon was a committed offender under sentence as of April 20, 2016, L.B. 1094’s 

effective date.

Although L.B. 1094 was not in effect at the time of sentencing, the plain language of the statute and the Randolph

doctrine compel us to apply it to Chacon’s sentence for possession of a controlled substance in case No. S-16-425. As a 

matter of plain error, therefore, we conclude that Chacon is 

entitled to retroactive relief under L.B. 1094. Consequently, 

we vacate Chacon’s sentence for possession of a controlled 

substance in case No. S-16-425 and remand the cause for 

resentencing consistent with § 29-2204.02(4) and the standard set forth in State v. Artis, ante p. 172, ___ N.W.2d ___ 

(2017), wherein we recently explained L.B. 1094’s practical impact on sentencing for Class IV felonies pursuant to 

§ 29-2404.02(4).

Driving Under Influence in S-16-425: 

Not Assigned and Argued

[11] In case No. S-16-425, Chacon was sentenced for both 

possession of a controlled substance and driving under the 

influence. Chacon’s brief in case No. S-16-425 assigns that 

“[t]he sentence imposed in this case was excessive.” However, 

Chacon’s brief argues only that his sentence for possession of 

a controlled substance was excessive. An alleged error must 

be both specifically assigned and specifically argued in the 

brief of the party asserting the error to be considered by an 
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appellate court. State v. Filholm, 287 Neb. 763, 848 N.W.2d 

571 (2014). Accordingly, we do not consider the propriety 

of Chacon’s sentence for driving under the influence in case 

No. S-16-425.

CONCLUSION

In case No. S-16-419, we find that the district court did not 

abuse its discretion in sentencing Chacon for possession of a 

controlled substance, and we affirm. In case No. S-16-425, we 

also affirm Chacon’s sentence for driving under the influence. 

However, in light of our application of the Randolph doctrine 

to L.B. 1094, we vacate Chacon’s sentence for possession of 

a controlled substance in case No. S-16-425 and remand the 

cause for resentencing in accordance with this opinion.

Judgment in No. S-16-419 affirmed.

Judgment in No. S-16-425 affirmed in part

and in part vacated, and cause remanded

with directions.