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Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

STATE V. EVAN

Cite as 316 Neb. 943

State of Nebraska, appellee, v.

Allen Evans, appellant.

___ N.W.3d ___

Filed June 21, 2024. No. S-24-013.

1. Statutes: Appeal and Error. Statutory interpretation is a question of 

law that an appellate court resolves independently of the trial court.

2. Sentences: Appeal and Error. A sentence imposed within statutory 

limits will not be disturbed on appeal absent an abuse of discretion by 

the trial court.

3. ____: ____. An abuse of discretion takes place when the sentencing 

court’s reasons or rulings are clearly untenable and unfairly deprive a 

litigant of a substantial right and a just result.

4. Sentences: Probation and Parole. Neb. Rev. Stat. § 83-1,110 (Supp. 

2023) concerns parole eligibility calculations and not the permissible 

sentencing range of the underlying sentence imposed by the trial court.

5. ____: ____. The court’s truth-in-sentencing advisement estimating 

parole eligibility and mandatory release is not the sentence.

6. Sentences. The Nebraska Criminal Code, Neb. Rev. Stat. §§ 28-101 to 

28-1357, 28-1601 to 28-1603, and 28-1701 (Reissue 2016, Cum. Supp. 

2022 & Supp. 2023), principally governs the trial court’s power to sentence a defendant in a criminal case and, in conjunction with Neb. Rev. 

Stat. § 29-2204 (Reissue 2016), governs the term that may be imposed.

7. ____. A sentence is illegal when it is not authorized by the judgment 

of conviction or when it is greater or less than the permissible statutory 

penalty for the crime.

8. Statutes: Appeal and Error. An appellate court will not read meaning 

into a statute that is not there or read anything direct and plain out of 

a statute.

9. Judges: Sentences: Probation and Parole. A trial judge’s incorrect 

statement regarding time for parole eligibility is not part of the sentence 

imposed and does not evidence ambiguity in the sentence imposed.

Nebraska Supreme Court Online Library

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

07/10/2024 06:08 PM CDT
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Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

STATE V. EVAN

Cite as 316 Neb. 943

Appeal from the District Court for Gage County, Ricky A. 

Schreiner, Judge. Affirmed.

Robert W. Kortus, of Nebraska Commission on Public 

Advocacy, for appellant.

Michael T. Hilgers, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Freudenberg, J.

INTRODUCTION

The defendant pled no contest to two counts of first degree 

sexual abuse of a protected individual. The district court sentenced the defendant to 18 to 20 years’ imprisonment for each 

conviction and ordered the sentences to run consecutively, 

resulting in an aggregate term of imprisonment of 36 to 40 

years. The defendant appeals, arguing his sentences are invalid 

because, under Neb. Rev. Stat. § 83-1,110 (Supp. 2023), he 

may be eligible for parole before serving his minimum term 

of 36 years. Because § 83-1,110 does not require a sentencing 

court to determine a defendant’s future parole eligibility and 

sentence the defendant in accordance with that determination, 

we affirm.

BACKGROUND

Allen Evans was charged by amended information in the 

district court for Gage County, Nebraska, with two counts of 

first degree sexual abuse of a protected individual, both Class 

IIA felonies. The charges arose after a resident of the Beatrice 

State Development Center reported that Evans had sexually 

assaulted her while Evans was employed with the Department 

of Health and Human Services.
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STATE V. EVAN

Cite as 316 Neb. 943

Pursuant to a plea agreement, Evans pled no contest to both 

counts. Subsequently, the district court sentenced Evans to 18 

to 20 years’ imprisonment for each conviction, resulting in an 

aggregate term of imprisonment of 36 to 40 years. Consistent 

with the parties’ joint recommendation, the court ordered the 

sentences to run consecutively.

After pronouncing the sentences, the court stated the following with respect to Evans’ parole eligibility:

Your parole eligibility date/mandatory discharge date 

will be . . . calculated by the Nebraska Department of 

Corrections pursuant to the Truth in Sentencing.

Assuming you lose no good time, you become eligible 

for parole after serving approximately 18 years of this 

sentence less the 605 days you’ve already served. You 

become eligible for mandatory release by dividing that 

maximum sentence of 20 years in half and subtracting the 

605 days that you have already served.

Evans’ attorney then stated: “Judge I — I do question the 

sentence in light of LB50, but the defendant has the right to 

appeal, so I don’t think there is anything I can do at this point 

other than just question it.” The court did not respond to these 

comments. However, contrary to the district court’s sentencing 

statements, Evans’ maximum sentence is 40 years. The court 

corrected this error in its written sentencing order.

Evans timely appealed his sentences, asserting the district 

court “did not apply or abide by the statutory parameters 

articulated in Neb. Rev. Stat. § 83-1,110(3)(a)(iii),” 1 which 

were recently enacted after the passage of 2023 Neb. Laws, 

L.B. 50, and determine when a committed offender is eligible 

for parole.

Upon the State’s request to bypass the Nebraska Court of 

Appeals, we moved the matter to our docket to consider the 

effect, if any, of the recent statutory amendments to Evans’ 

sentence.

1 Brief for appellant at 9.
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Nebraska Supreme Court Advance Sheets

316 Nebraska Reports

STATE V. EVAN

Cite as 316 Neb. 943

ASSIGNMENT OF ERROR

Evans assigns that the district court “[e]rroneously 

[s]entenced” him to “[t]erms of [i]mprisonment” that exceeded 

§ 83-1,110.

STANDARD OF REVIEW

[1] Statutory interpretation is a question of law that an 

appellate court resolves independently of the trial court. 2

[2] A sentence imposed within statutory limits will not 

be disturbed on appeal absent an abuse of discretion by the 

trial court. 3

[3] An abuse of discretion takes place when the sentencing 

court’s reasons or rulings are clearly untenable and unfairly 

deprive a litigant of a substantial right and a just result. 4

ANALYSIS

[4,5] Evans argues on appeal that the sentence imposed by 

the district court “exceed[s] the maximum sentence permitted 

by Neb. Rev. Stat. § 83-1,110.” 5 Specifically, he contends that 

under the parole eligibility criteria of a recent amendment to 

§ 83-1,110(3)(c)(iii), “[t]he maximum sentence for an aggregate sentence of 40 years cannot exceed 32 years,” 6 because 

80 percent of a maximum term of 40 years is 32 years. Thus, 

even though his sentence falls within the range of permissible statutory penalties set forth in Neb. Rev. Stat. § 28-105 

(Cum. Supp. 2022), Evans argues it was invalid because it 

violated § 83-1,110(3)(c)(iii). We hold that § 83-1,110 concerns parole eligibility calculations and not the permissible 

sentencing range of the underlying sentence imposed by the 

trial court. And we reiterate that the court’s truth-in-sentencing 

2 State v. Thompson, 294 Neb. 197, 881 N.W.2d 609 (2016).

3 State v. Miller, 315 Neb. 951, 2 N.W.3d 345 (2024).

4 Id.

5 Brief for appellant at 7.

6 Id. at 9.
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STATE V. EVAN

Cite as 316 Neb. 943

advisement estimating parole eligibility and mandatory release 

is not the sentence. 7 The court’s aggregate sentence of 36 to 40 

years was valid, and we need not address the correctness of the 

court’s truth-in-sentencing advisement in light of the amendments to § 83-1,110(3)(c)(iii).

[6,7] The Nebraska Criminal Code, Neb. Rev. Stat. §§ 28-101 

to 28-1357, 28-1601 to 28-1603, and 28-1701 (Reissue 2016, 

Cum. Supp. 2022 & Supp. 2023), principally governs the trial 

court’s power to sentence a defendant in a criminal case and, 

in conjunction with Neb. Rev. Stat. § 29-2204 (Reissue 2016), 

governs the term that may be imposed. Under § 28-105(1), a 

Class IIA felony is punishable by a term of imprisonment of 

0 to 20 years. Both sentences imposed by the district court 

fell within the range of the permissible statutory penalties. A 

sentence is illegal when it is not authorized by the judgment 

of conviction or when it is greater or less than the permissible statutory penalty for the crime. 8 In contrast, a sentence 

imposed within statutory limits will not be disturbed on appeal 

absent an abuse of discretion by the trial court. 9

In 1993, Nebraska passed truth-in-sentencing legislation, 

which was codified at § 29-2204 (Supp. 1993). Currently, 

§ 29-2204(6)(a) (Reissue 2016) provides that when imposing 

an indeterminate sentence, the court shall advise the offender 

on the record of the time the offender will serve both on 

the minimum sentence before attaining parole eligibility and 

on the maximum term before attaining mandatory release, 

assuming that no good time for which the offender will be 

eligible is lost. But, under § 29-2204(6)(b):

If any discrepancy exists between the statement of 

the minimum limit of the sentence and the statement 

of parole eligibility or between the statement of the 

maximum limit of the sentence and the statement of 

7 See State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).

8 State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).

9 See State v. Miller, supra note 3.
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STATE V. EVAN

Cite as 316 Neb. 943

mandatory release, the statements of the minimum limit 

and the maximum limit shall control the calculation of 

the offender’s term.

Since 1969, § 83-1,110 has been the principal statute 

addressing when an offender is eligible for parole and mandatory release, 10 and it is the basis upon which the court makes 

its truth-in-sentencing advisement. Section 83-1,110 was 

amended effective September 2, 2023. Before this amendment, 

the entirety of § 83-1,110 (Reissue 2016) read as follows:

(1) Every committed offender shall be eligible for 

parole when the offender has served one-half the minimum term of his or her sentence as provided in sections 

83-1,107 and 83-1,108. The board shall conduct a parole 

review not later than sixty days prior to the date a committed offender becomes eligible for parole as provided 

in this subsection, except that if a committed offender 

is eligible for parole upon his or her commitment to the 

department, a parole review shall occur as early as is 

practical. No such reduction of sentence shall be applied 

to any sentence imposing a mandatory minimum term.

(2) Every committed offender sentenced to consecutive 

terms, whether received at the same time or at any time 

during the original sentence, shall be eligible for release 

on parole when the offender has served the total of onehalf the minimum term as provided in sections 83-1,107 

and 83-1,108. The maximum terms shall be added to 

compute the new maximum term which, less good time, 

shall determine the date when discharge from the custody 

of the state becomes mandatory. 11

The entirety of § 83-1,110 (Supp. 2023) now provides:

(1) Every committed offender shall be eligible for 

parole upon the earliest of the following:

10 See Adams v. State, 293 Neb. 612, 879 N.W.2d 18 (2016).

11 See 2003 Neb. Laws, L.B. 46, § 23.
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STATE V. EVAN

Cite as 316 Neb. 943

(a) When the offender has served one-half the minimum term of his or her sentence as provided in sections 

83-1,107 and 83-1,108;

(b) For a committed offender serving a maximum term 

of twenty years or less, two years prior to the offender’s 

mandatory discharge date; or

(c) For a committed offender serving a maximum term 

of more than twenty years, when the offender has served 

eighty percent of the time until the offender’s mandatory 

discharge date.

(2) The board shall conduct a parole review not later 

than sixty days prior to the date a committed offender 

becomes eligible for parole as provided in this subsection, 

except that if a committed offender is eligible for parole 

upon his or her commitment to the department, a parole 

review shall occur as early as is practical. No such reduction of sentence shall be applied to any sentence imposing 

a mandatory minimum term.

(3)(a) This subsection applies to any committed offender 

sentenced to consecutive terms, whether received at the 

same time or at any time during the original sentence.

(b) The maximum terms shall be added to compute the 

new maximum term which, less good time, shall determine the date when discharge from the custody of the 

state becomes mandatory.

(c) The committed offender shall be eligible for release 

on parole upon the earliest of the following:

(i) When the offender has served the total of one-half 

the minimum term as provided in sections 83-1,107 and 

83-1,108;

(ii) For a committed offender serving a maximum term 

of twenty years or less, two years prior to the offender’s 

mandatory discharge date; or

(iii) For a committed offender serving a maximum term 

of more than twenty years, when the offender has served 
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STATE V. EVAN

Cite as 316 Neb. 943

eighty percent of the time until the offender’s mandatory 

discharge date.

[8] Evans appears to conflate the criminal sentence imposed 

by the trial court with the parole board’s calculation of parole 

eligibility under § 83-1,110. Nothing in the language of 

§ 83-1,110 as amended indicates an intent to govern the permissible term of the underlying sentence imposed by the trial 

court. We will not read meaning into a statute that is not there 

or read anything direct and plain out of a statute. 12

Similar to the language before the amendment, the plain language of § 83-1,110(3)(c) governs when the offender is “eligible for release on parole.” It then provides, as a calculation 

for when the committed offender shall be eligible for release 

on parole—if it is the earliest of the three calculations—“[f]or 

a committed offender serving a maximum term of more than 

twenty years, when the offender has served eighty percent 

of the time until the offender’s mandatory discharge date.” 13

As with the previous version of the statute, parole eligibility 

is determined by the board of parole, which shall conduct a 

parole review.

[9] To the extent Evans takes issue with the court’s truthin-sentencing advisement, we find that it presents no grounds 

for reversal. As we have said before, § 29-2204(6)(b) plainly 

provides that it is the sentence imposed that controls parole 

eligibility and mandatory release, not any erroneous advisement thereof. Stated differently, the pronounced terms of 

imprisonment prevail over any conflicting truth-in-sentencing 

advisements. 14 The meaning of a sentence is, as a matter of 

law, determined by the contents of the sentence itself. 15 A 

trial judge’s incorrect statement regarding time for parole 

12 State v. Simons, 315 Neb. 415, 996 N.W.2d 607 (2023).

13 See § 83-1,110(3)(c)(iii).

14 See State v. Russell, supra note 7.

15 Schaeffer v. Frakes, 306 Neb. 904, 947 N.W.2d 714 (2020); State v. 

Russell, supra note 7.
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STATE V. EVAN

Cite as 316 Neb. 943

eligibility is not part of the sentence and does not evidence 

ambiguity in the sentence imposed. 16

Moreover, under “the ABA Standards,” the court is “‘not 

required to inform [the] defendant about parole eligibility 

before accepting [the] guilty plea.’” 17 This is consistent with 

§ 29-2204, which does not require the truth-in-sentencing 

advisements described therein until a sentence is pronounced. 

As such, an incorrect truth-in-sentencing advisement as to 

parole or mandatory release eligibility also does not affect the 

validity of a defendant’s plea.

In sum, a truth-in-sentencing advisement containing a miscalculation as to the expected parole eligibility or mandatory 

release date does not affect the validity of either the sentence 

or the plea. We express no opinion about the correctness of 

the court’s estimation of Evans’ parole eligibility date. The 

validity of the sentence imposed on Evans is governed by the 

Nebraska Criminal Code, and the district court’s imposition 

of consecutive sentences of 18 to 20 years’ imprisonment for 

each conviction (aggregate sentence of 36 to 40 years’ imprisonment) did not violate the Nebraska Criminal Code. We find 

no merit to Evans’ assignment of error that the district court 

“[e]rroneously [s]entenced” him to “[t]erms of [i]mprisonment” that exceeded § 83-1,110.

CONCLUSION

For the reasons set forth above, we affirm the sentences 

imposed by the district court.

Affirmed.

Miller-Lerman, J., participating on briefs.

16 State v. Russell, supra note 7.

17 Id. at 43, 863 N.W.2d at 821.