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Nebraska Supreme Court Advance S

298 Nebraska Report

STATE v. STONE

Cite as 298 Neb. 53

State of Nebraska, appellee, v.

Harold L. Stone, appel

___ N.W.2d ___

Filed October 13, 2017. No. S-16-941.

1. Constitutional Law: Statutes: Appeal and Error. The constitutionality 

of a statute presents a question of law, which an appellate court independently reviews.

2. 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.

3. Constitutional Law: Statutes: Pleas. As-applied challenges to the constitutionality of a criminal statute are preserved by a defendant’s plea of 

not guilty.

4. Constitutional Law: Statutes: Waiver. The proper procedure for raising a facial constitutional challenge to a criminal statute is to file a 

motion to quash, and all defects not raised in a motion to quash are 

taken as waived by a defendant pleading the general issue.

5. Constitutional Law: Statutes. Regardless of how the parties label a 

constitutional challenge, a court will classify the challenge based upon 

the nature of the alleged constitutional defect.

6. ____: ____. Generally, a facial challenge seeks to void the statute in all 

contexts for all parties. In contrast, an as-applied challenge often concedes the statute is constitutional in some of its applications, but contends it is unconstitutional as applied to the particular facts of the case.

7. ____: ____. An as-applied challenge does not seek to void the statute 

for all purposes, but seeks only to prevent the statute’s application to the 

facts before the court.

8. Sentences. Generally, it is within a trial court’s discretion to direct that 

sentences imposed for separate crimes be served either concurrently 

or consecutively. This is so, even when offenses carry a mandatory 

minimum sentence, unless the statute requires that consecutive sentences 

be imposed.

Nebraska Supreme Court Online Library

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

11/09/2017 09:13 AM CST
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STATE v. STONE

Cite as 298 Neb. 53

9. 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.

10. Sentences. When imposing a sentence, the sentencing court is to 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 amount of violence 

involved in the commission of the crime.

Appeal from the District Court for Thayer County: Vicky 

Johnson, Judge. Affirme

Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., 

L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

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

Kelch, and Funke,

Stacy, 

In this direct appeal of his criminal convictions and sentences, Harold L. Stone seeks to challenge the constitutionality 

of the mandatory minimum sentencing scheme for first degree 

sexual assault of a child.1 He also challenges his sentences as 

excessive. We conclude Stone did not preserve his constitutional challenge for appellate review, and we find no merit to 

his excessive-sentence claim. Accordingly, we affirm the judgment and sentences of the district court.

1 See Neb. Rev. Stat. § 28-319.01 (Reissue 2016).
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Nebraska Supreme Court Advance S

298 Nebraska Report

STATE v. STONE

Cite as 298 Neb. 53

FACTS

Convict

In 2016, Stone was charged with five counts of first degree 

sexual assault of a child,2 one count of third degree sexual assault of a child,3

 and one count of child abuse.4 The 

amended information alleged Stone sexually penetrated H.W. 

on five separate occasions in 2014 and 2015, at a time when 

H.W. was under the age of 16 and Stone was over the age of 

25. Stone entered pleas of not guilty, and the matter proceeded 

to trial.

The facts underlying Stone’s charges are not directly relevant to his assignments of error, so we do not recount them 

in detail. Generally, evidence at trial showed that Stone, a 

58-year-old man, befriended, groomed, and sexually assaulted 

H.W., a 15-year-old child with behavioral disabilities.

The jury returned a verdict finding Stone guilty of four 

counts of first degree sexual assault of a child and one count 

of child abuse. Each sexual assault conviction was a Class IB 

felony carrying a mandatory minimum prison sentence of 15 

years5 and a maximum sentence of life imprisonment.6

Sente

At the sentencing hearing, Stone argued the mandatory 

minimum sentencing scheme of § 28-319.01 violated the Equal 

Protection Clauses of the U.S. and Nebraska Constitutions 

by treating him more harshly than younger offenders. Stone 

asserted that if he had been 19 to 24 years old, rather than 

58, at the time of his crimes, the sexual assaults would have 

been classified as Class II felonies with a 1-year minimum 

2 § 28-319.01(1)(b).

3 Neb. Rev. Stat. § 28-320.01(1) (Reissue 2016).

4 Neb. Rev. Stat. § 28-707(1)(a) and (d) (Cum. Supp. 2014).

5 See § 28-319.01(1)(b) and (2).

6 See Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014).
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STATE v. STONE

Cite as 298 Neb. 53

term,7 instead of Class IB felonies with a 15-year mandatory 

minimum term.8 Stone contended there was no rational basis 

to treat him more harshly based on his age, and he asked the 

court to sentence him “as if the offense were a Class II felony.” 

Stone ultimately conceded that “[a]ssuming the validity of 

the sentencing scheme, the Court has no legal option but to 

impose a sentence of not less than a mandatory 15-year sentence on [the sexual assault convictions] and . . . then has to 

consider whether any sentences imposed should be concurrent 

or consecutive.” Stone asked the court to run his sentences 

concurrently rather than consecutively, suggesting the mandatory minimum was already “harsher than it should be legally 

or constitutionally.”

The trial court rejected Stone’s constitutional arguments 

and, on each of the four sexual assault convictions, sentenced 

Stone to imprisonment for a mandatory minimum term of 15 

years and a maximum term of 20 years. On the child abuse 

conviction, Stone was sentenced to a term of 4 to 5 years’ 

imprisonment. The court ordered two of the sexual assault sentences to be served consecutively and ordered the remaining 

sentences to be served concurrently.

Stone timely appealed, and he filed a notice of constitutional 

question under Neb. Ct. R. App. P. § 2-109(E) (rev. 2014), 

advising that “this appeal presents a question as to the constitutionality of . . . §28-319.01(1)(b) [and] (2), as applied.” We 

moved the case to our docket on our own motion.9

ASSIGNMENTS OF ERROR

Stone assigns (1) that the mandatory minimum term of 

15 years’ imprisonment under § 28-319.01(2), based upon 

age, has no rational basis and violates the Equal Protection 

7 See Neb. Rev. Stat. § 28-319 (Reissue 2016) and § 28-105.

8 § 28-319.01(2).

9 Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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STATE v. STONE

Cite as 298 Neb. 53

Clauses of the U.S. and Nebraska Constitutions and (2) that 

the imposition of consecutive mandatory minimum sentences 

was unreasonable and excessive.

STANDARD OF REVIEW

[1] The constitutionality of a statute presents a question of 

law, which we independently review.10

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

within the statutory limits absent an abuse of discretion by the 

trial court.11

ANALYSIS

Facial or As-Applied Chal

As a threshold matter, we consider whether Stone has properly presented his constitutional challenge to § 28-319.01. The 

proper procedure for raising and preserving a constitutional 

challenge differs depending on whether it is a facial or an 

as-applied challenge.12

[3,4] As-applied challenges to the constitutionality of a 

criminal statute are preserved by a defendant’s plea of not 

guilty.13 But the proper procedure for raising a facial constitutional challenge to a criminal statute is to file a motion to 

quash, and all defects not raised in a motion to quash are taken 

as waived by a defendant pleading the general issue.14

Stone did not file a motion to quash in this case and concedes he has waived any facial challenge to § 28-319.01. 

Instead, he characterizes his equal protection claim as an 

“as-applied” constitutional challenge to § 28-319.01. The State 

takes issue with this characterization and argues that Stone is 

10 J.M. v. Hobbs, 288 Neb. 546, 849 N.W.2d 480 (2014).

11 State v. Policky, 285 Neb. 612, 828 N.W.2d 163 (2013).

12 See State v. Harris, 284 Neb. 214, 817 N.W.2d 258 (2012).

13 State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016); Harris, supra

note 12.

14 Harris, supra note 12.
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STATE v. STONE

Cite as 298 Neb. 53

actually mounting a facial challenge to the constitutionality of 

§ 28-319.01.

[5-7] Regardless of how the parties label a constitutional 

challenge, a court will classify the challenge based upon the 

nature of the alleged constitutional defect.15 We have described 

a facial challenge as a “‘challenge to a statute, asserting that 

no valid application of the statute exists because it is unconstitutional on its face.’”16 Generally, a facial challenge seeks to 

void the statute in all contexts for all parties.17 In contrast, an 

as-applied challenge often concedes the statute is constitutional 

in some of its applications, but contends it is unconstitutional 

as applied to the particular facts of the case.18 An as-applied 

challenge does not seek to void the statute for all purposes, 

but seeks only to prevent the statute’s application to the facts 

before the court.19

After reviewing the record and the parties’ arguments, we 

conclude that although Stone attempts to frame it otherwise, 

he is asserting a facial challenge to the statutory classification 

scheme under § 28-319.01. Stone argues there is no rational 

basis for a “statutory classification which imposes a substantially harsher sentence [for sexual assault of a child] when 

the actor is 25 years of age or older than when the actor is 

19 years of age or older.”20 In making this argument, Stone 

does not premise the alleged constitutional violation on any 

15 See, e.g., State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005).

16 Id. at 905, 697 N.W.2d at 667, quoting State v. Hynek, 263 Neb. 310, 640 

N.W.2d 1 (2002).

17 See 16 C.J.S. Constitutional Law § 243 (2015). See, also, Harris, supra

note 12, 284 Neb. at 221, 817 N.W.2d at 268 (“a plaintiff can only succeed 

in a facial challenge by establishing that no set of circumstances exists 

under which the act would be valid, i.e., that the law is unconstitutional in 

all of its applications”).

18 16 C.J.S., supra note 17.

19 Id.

20 Brief for appellant at 7.
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STATE v. STONE

Cite as 298 Neb. 53

facts specific to his case or circumstances. Instead, the nature 

of the constitutional defect he raises—that the age classification in § 28-319.01 is arbitrary and has no rational basis—is 

one that every offender 25 years of age or older could raise. 

His challenge seeks to void the statutory age classification 

in all contexts for all parties and is properly classified as a 

facial challenge.

Because Stone has not preserved this facial challenge 

for appellate review, we do not reach his first assignment 

of error.

Consecutive Sen

Stone argues the sentencing court abused its discretion by 

ordering two of the mandatory minimum sentences to run consecutively. We find no abuse of discretion on this record.

[8] Generally, it is within a trial court’s discretion to direct 

that sentences imposed for separate crimes be served either 

concurrently or consecutively.21 This is so, even when offenses 

carry a mandatory minimum sentence,22 unless the statute 

requires that consecutive sentences be imposed.23

Section 28-319.01(2) requires a mandatory minimum 

prison sentence of 15 years24 and classifies Stone’s crime as a 

Class IB felony, which carries a maximum term of life imprisonment.25 The jury convicted Stone of four separate counts of 

first degree sexual assault of a child. The trial court imposed 

21 State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014); Policky, supra

note 11.

22 See, State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016); State v. 

Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).

23 Berney, supra note 21.

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

15-year mandatory minimum in § 28-319.01(2) for first degree sexual 

assault of child controls over general 20-year minimum for Class IB 

felonies in § 28-105).

25 § 28-105.
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STATE v. STONE

Cite as 298 Neb. 53

a sentence of 15 to 20 years’ imprisonment on each of the 

four convictions under § 28-319.01(2) and ordered two of the 

sentences to be served consecutively. All other sentences were 

ordered to be served concurrently.

[9,10] 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.26 When imposing a sentence, the sentencing 

court is to 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 amount of violence involved in the commission of the crime.27

Here, the sentences imposed were well within the statutory 

range and the record shows the court considered and applied 

all the necessary sentencing factors. Stone committed serious 

felonies that caused lasting harm. He groomed his child victim 

and befriended her family to increase his access to the victim. 

He was found to be in the moderate-high risk range on a sex 

offender specific assessment. We find no abuse of discretion in 

ordering consecutive mandatory minimum sentences.

CONCLUSION

For the foregoing reasons, the judgment and sentences of 

the district court are affirmed.

Affirmed

26 State v. Garza, 295 Neb. 434, 888 N.W.2d 526 (2016).

27 State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).