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State of Nebraska, appellee, v.

Patrick R. Russell, appel

___ N.W.2d ___

Filed March 30, 2018. No. S-17-197.

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. 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.

4. Sentences. In determining a sentence to be imposed, relevant factors 

customarily considered and applied are 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.

5. ____. Where a defendant was under the age of 18 when he or she committed a Class IA felony, Neb. Rev. Stat. § 28-105.02 (Reissue 2016) 

dictates that the sentencing judge must also consider mitigating factors, 

such as the defendant’s (1) age at the time of the offense, (2) impetuosity, (3) family and community environment, and (4) ability to appreciate 

risks and consequences of the conduct, as well as (5) the outcome of a 

comprehensive mental health evaluation of the defendant conducted by 

an adolescent mental health professional licensed in Nebraska.

Appeal from the District Court for Douglas County: Thoma

A. Otepka, Judge. Affirme

Nebraska Supreme Court Online Library

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

06/01/2018 01:08 AM CDT
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Thomas C. Riley, Douglas County Public Defender, and 

Annie O. Hayden for appellant.

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

Vincent for appellee.

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

JJ., and Pirtle and Bishop, Judge

Cassel, J.

INTRODUCTION

In 1974, a court sentenced Patrick R. Russell to life imprisonment for a murder he committed at age 17. Following decisions in Miller v. Alabama1

 and State v. Mantich,

2

 Russell 

sought postconviction relief in the form of a new sentencing 

hearing. The court granted relief and resentenced Russell to 

110 to 126 years’ imprisonment, making him eligible for 

parole at age 72. Because the sentence does not constitute an 

abuse of discretion, we affirm.

BACKGROUND

Crime and Direct Ap

The facts and circumstances surrounding Russell’s crime 

are set out in greater detail in our decision resolving his direct 

appeal.3 On November 10, 1973, when Russell was 17 years 

old, he engaged in sexual activities with 8-year-old Joseph 

Edmonds. After Edmonds allegedly called Russell’s grandmother derogatory names, Russell used a pocketknife to cut a 

length of telephone cord. He told Edmonds to close his eyes, 

slipped the cord around Edmonds’ neck, and pulled it tight. 

Edmonds died due to the strangulation.

1 Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 

(2012).

2 State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 (2014).

3 State v. Russell, 194 Neb. 64, 230 N.W.2d 196 (1975).
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Our prior opinion also discussed Russell’s mental condition. At age 14, he was hospitalized for psychiatric treatment 

for approximately 1 month. Russell then resided at the Omaha 

Home for Boys for approximately 2 years. He returned to live 

with his mother in July 1973, and he was soon charged with 

three counts of assault and battery related to sexual attacks on 

young boys ranging from 4 to 8 years of age.

The district court convicted Russell of murder in the first 

degree and imposed a sentence of life imprisonment. We 

affirmed the court’s judgment.4

Postconviction and R

Following decisions in Miller5 and Mantich,

6

 Russell sought 

postconviction relief. He asked the district court to vacate and 

set aside his sentence and to hold a new sentencing hearing. 

The district court granted the requested relief.

The district court received evidence at a mitigation hearing. 

It received the deposition of an adolescent neuropsychologist 

who discussed newer revelations in science concerning the 

development of the adolescent brain. It also received documents regarding Russell’s misconduct reports, achievements 

while incarcerated, and reclassification forms used by the penitentiary to determine placement.

The district court heard live testimony from a witness. 

Kirk A.B. Newring, Ph.D., a psychologist, testified that studies show the brains of adolescents are not fully formed. He 

explained that the prefrontal cortex—which allows for deliberation, anticipation of future outcomes, assessment of risk, 

and impact—seems to be more fully developed around age 

25. The lack of prefrontal cortex development is most demonstratively impaired in “hot logic situations where there’s emotional arousal.” Newring testified that Russell reported a strong 

4 Id.

5 Miller v. Alabama, supra note 1.

6 State v. Mantich, supra note 2.
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attachment to his grandmother as the only relative who had 

a parenting-type relationship toward him. Newring gathered 

from his talks with Russell that Russell admitted to the crime 

to appease the parole board but was now saying that he did 

not do it. Russell explained that his attorney performed inadequately and that Russell was innocent.

Newring testified that with regard to classification, since 

2011, Russell had scores that would allow him to be at a community corrections center if he were not serving a life sentence. 

In other words, Russell “has the institutional behavior and history that would allow him to be placed at work release,” but 

instead, Russell is kept in total confinement due to the nature 

of his sentence. The presentence report (PSR) shows that during many annual custody reviews from at least 1989 to 2000, 

no change was recommended in Russell’s classification due 

to his refusal to take part in a psychological evaluation. He 

submitted to a psychological evaluation in 2002. That evaluation recommended that Russell complete all three levels of 

both “GOLF” (for mental health) and “SATOP” (for substance 

abuse) programming prior to being considered for a custody promotion. In 2002 through 2005, his classification was 

not changed, because the mental health recommendation was 

not favorable.

Newring assessed Russell at a low risk for future acts of 

violence. The risk factors were that Russell had a conviction of violence and a personality disorder. Newring assigned 

Russell a diagnosis of “Other Personality Disorder with Mixed 

Schizoid and Schizotypal Personality features” to “encapsulate 

that he’s a little bit asocial” and that “his presentation and 

perceptions are a little bit odd or eccentric.” Newring testified that Russell described a feasible and achievable release 

plan and recognized that he would need to work through the 

transition process of the Department of Correctional Services. 

Newring did not believe that Russell had any meaningful family support in the community. Newring explained that Russell 

was employable, did not have a major mental illness, had a 
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good work history, handled stress fairly well within the institution, and was cognizant of a need for supportive transition, 

all of which suggested a low risk for future acts of violence. 

Russell obtained a low score on a test that is a predictor of 

future violence.

The record showed steps taken by Russell to improve himself while incarcerated. In 1981, Russell obtained a diploma 

through the GED program and earned credentials of ministry in the “Church of the God Within.” The next year, the 

church awarded him an honorary doctor of divinity. The record 

shows that Russell completed other Bible studies. In 1988, he 

obtained a certificate in welding. Performance reviews show 

that Russell had an “exceptional” work history in prison. 

Between 1991 and 2016, Russell had 26 misconduct reports, 

with the most recent occurring in 2010.

According to the PSR, “Russell remains in a PreContemplative Stage of Change with regard to addressing 

his criminogenic needs.” Testing tools found Russell to be 

at a very high risk to reoffend. The report stated that Russell 

appeared to be unwilling to accept he has mental health problems and that his personality disorder would likely impact 

efforts to address his criminogenic needs.

Although Russell does not see himself as having a mental 

illness, his history suggests otherwise. On two occasions in 

1969, Russell was hospitalized at a psychiatric center after 

exhibiting violence toward family members. Russell was hospitalized in 1970 with an admission diagnosis of adolescent 

schizophrenia. After an evaluation, a doctor felt that Russell 

“represented borderline retardation and adolescent adjustment reaction.” Russell acknowledged that as a juvenile, he 

was seen by a psychiatrist, and that he was diagnosed with 

schizophrenia in 1972. In a Nebraska Penal and Correctional 

Complex progress report from March 1975, the author strongly 

recommended that Russell be placed in a mental institution. In 

a report the following year, the counselor stated that Russell 

should be under psychiatric care.
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Upon admission to a psychiatric hospital in 1978, Russell 

indicated that he had no mental disorders. However, staff perceived him as “having a severe mental disorder, and the main 

feature of which is paranoia.” An admission note and mental 

status examination report from that year stated that Russell, as 

an adolescent, carried a knife or a section of pipe on his person “for his own protection or in case someone bumped into 

him or in case he didn’t like someone’s face.” Russell reported 

that he had “attacked people from behind and struck them 

with the pipe because he didn’t like their looks or because 

they had accident[al]ly bumped into him on the street.” In this 

report, Russell offered strong racial opinions and indicated 

that he could get along with African Americans, “provided 

that they do not talk to him or look at him the wrong way.” 

The report showed a diagnostic impression of “Schizophrenia, 

Paranoid Type.”

The PSR shed light on crimes committed by Russell prior 

to the murder. In December 1972, a 7-year-old boy reported 

that Russell inserted a pencil in the victim’s rectum, made the 

victim perform oral sex on Russell, and pulled on the victim’s 

penis and testicles. When interviewed by the police, Russell 

stated that among other actions against the victim, he “tied 

a cord around [the victim’s] neck, and threatened to hang 

him over the side of the porch railing from the third floor for 

messing with the TV.” Russell told the officer that the victim 

harassed him, which made Russell angry, and that Russell 

was unable to control his temper. When an officer spoke with 

Russell’s mother, she informed him that Russell had been staying at the Omaha Home for Boys because he was “hard to handle,” but that he was home on holiday leave. She also said that 

prior to his admittance to the Omaha Home for Boys, Russell 

was receiving care from a doctor for “a [m]ental problem.” 

Russell told an officer that if he had been “taking medicine for 

his condition,” he “possibly would not have done what he did” 

to the victim. In November 1973, Russell was charged with 

stealing a vehicle.
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The PSR stated that Russell appeared to have a deep-seated 

need for power and control and that interpersonal relationships 

were problematic for Russell. It further stated that Russell’s 

level of suspicion toward authority figures “does not bode well 

for his prospects of succeeding in community-based supervision.” Russell showed “very little motivation to participate 

actively and meaningfully in a correctional plan.” According 

to the report, Russell “appears to be dreaming of living under 

a bridge in a warm climate.”

In February 2017, the court resentenced Russell. The court 

stated that it had spent days “going through everything” in 

preparation for the sentencing. The court recounted that it had 

reviewed the entirety of the PSR and opinions from this court 

as well as Miller.

7

 The court further stated that it considered 

Russell’s age, mentality, education and experience, social and 

cultural background, past record of criminal or law-abiding 

conduct, motivation for the offense, nature of the offense, and 

amount of violence involved in the commission of the crime. 

In addition, the court weighed mitigating factors under Neb. 

Rev. Stat. § 28-105.02(2) (Reissue 2016). The court reviewed 

this court’s opinion in Russell’s direct appeal8 and considered 

the evidence at the mitigation hearing.

The district court disagreed with Newring that Russell 

was impulsive. The court observed that on the same page of 

Newring’s report that Newring said Russell was impulsive, 

Newring wrote that Russell was now contending he did not 

commit the murder. The court noted that on a number of occasions in the PSR, it was reported that Russell denied and minimized responsibility for his actions and felt he had the right 

to defend his grandmother’s name. The court recalled reading 

that Russell had also blamed his attorney for not properly representing him.

7 Miller v. Alabama, supra note 1.

8 State v. Russell, supra note 3.
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The district court recognized the importance of considering mitigating factors before sentencing a juvenile offender. 

It stated:

[T]he State doesn’t challenge the vast body of neuroscientific and developmental science in adolescents that have 

implications for the treatment of juveniles in the justice 

system, and ultimately led to Miller [v.] Alabama. Before 

Miller [v.] Alabama, in 2012, a murder conviction meant 

a life sentence, regardless of the age of the actor. Since 

Miller, if the actor was under 18, the Court must consider mitigating factors before imposing a life sentence 

for murder.

. . . We are here today because of a change in the law 

that applies to cases like this across the country. Miller

[v.] Alabama requires the courts to — across the country 

at the state level to consider mitigating factors before 

sentencing a person who was under 18 at the time of 

the murder.

And I’ve mentioned the change in the law that 

our legislature made because of Miller [v.] Alabama, 

[§] 28-105.02, and all of the nonexhaustive list of mitigating factors, which the Court considered.

In attempting to fashion a fair and appropriate sentence 

— resentence, excuse me, based on the law and the evidence, the Court does so within the context of the facts of 

this case. All sentences are driven in part by the particular facts unique to them, and I mentioned this earlier. So 

it’s this case, these facts, that the Court considers.

The legislature has set the minimum sentence in these 

kinds of cases at 40 years. And it has set the maximum 

sentence at life. And where this case falls in that spectrum 

is ultimately left to the Court to determine.

The district court recognized that it must “also consider a 

sentence that will not depreciate the seriousness of the crime 

and serve to protect society.” The court resentenced Russell to 

110 to 126 years in prison, with credit for 15,789 days served. 
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Thus, the court stated that Russell would be eligible for parole 

after serving 55 years and, if he did not lose any good time, 

would be discharged after serving 63 years.

Russell timely appeals.

ASSIGNMENT OF ERROR

Russell assigns that the district court abused its discretion by 

imposing an excessive sentence.

STANDARD 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.9 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.10

ANALYSIS

We have recently decided a number of appeals involving 

juvenile offenders convicted of first degree murder who were 

sentenced to life imprisonment, who were subsequently resentenced in response to Miller, and who then appealed that sentence.11 This is another such appeal. Our prior cases set forth 

the legal background leading to the resentencing of juvenile 

offenders, and we do not repeat it here.

Russell argues that his sentence of 110 to 126 years’ imprisonment is excessive. He does not suggest that the court imposed 

9 State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017), cert. denied ___ 

U.S. ___, 138 S. Ct. 656, 199 L. Ed. 2d 549 (2018).

10 Id. 11 See, State v. Jones, supra note 9; State v. Jackson, 297 Neb. 22, 899 

N.W.2d 215 (2017); State v. Nollen, 296 Neb. 94, 892 N.W.2d 81 (2017), 

cert. denied ___ U.S. ___, 138 S. Ct. 165, 199 L. Ed. 2d 98; State v. 

Garza, 295 Neb. 434, 888 N.W.2d 526 (2016), cert. denied ___ U.S. ___, 

138 S. Ct. 83, 199 L. Ed. 2d 54 (2017); State v. Mantich, 295 Neb. 407, 

888 N.W.2d 376 (2016), cert. denied ___ U.S. ___, 138 S. Ct. 128, 199 L. 

Ed. 2d 78 (2017).
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a sentence outside the statutory limits; instead, he contends 

that the court abused its discretion in imposing the sentence. 

We disagree.

[3-5] 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.12 Relevant factors customarily considered and 

applied are 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.13 Because Russell was under the age of 18 when 

he committed a Class IA felony, § 28-105.02 dictates that the 

sentencing judge must also consider mitigating factors, such as 

the defendant’s (1) age at the time of the offense, (2) impetuosity, (3) family and community environment, and (4) ability to 

appreciate risks and consequences of the conduct, as well as 

(5) the outcome of a comprehensive mental health evaluation 

of the defendant conducted by an adolescent mental health professional licensed in Nebraska.14

Russell asserts that his sentence should be modified because 

it was tailored to fit the crime rather than the offender. He 

emphasizes decisions from the U.S. Supreme Court recognizing the reduced culpability of juveniles and developments in 

the field of neuropsychology.15 We, like the district court, are 

12 State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017), cert. denied ___ U.S. 

___, 138 S. Ct. 315, 199 L. Ed. 2d 208.

13 Id.

14 See id.

15 See, Miller v. Alabama, supra note 1; Graham v. Florida, 560 U.S. 48, 130 

S. Ct. 2011, 176 L. Ed. 2d 825 (2010); Roper v. Simmons, 543 U.S. 551, 

125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
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mindful of evidence showing that the brain of an adolescent is 

not fully developed. But that does not necessarily mean that an 

offender no longer poses a risk after age 25.

Under Miller, a juvenile offender convicted of a homicide 

offense may be sentenced to life imprisonment without parole 

so long as the sentencer considered specific, individualized 

factors before handing down that sentence.16 Rather than life 

imprisonment, the court sentenced Russell to a term of years 

that allows for parole eligibility. And it is clear from the court’s 

statements during the resentencing hearing that it considered 

the relevant sentencing factors set forth above.

Russell also argues that the sentence imposed was a de facto 

life sentence. He will be eligible for parole at age 72, and he 

will be 80 years old on his projected release date. Russell highlights cases from other states where courts have found shorter 

terms of imprisonment to be de facto life sentences.17 But we 

have declined to follow that line of cases.

In State v. Smith,

18 we considered a claim that a lengthy 

term-of-years sentence was a de facto life imprisonment. 

In doing so, we discussed in some detail the U.S. Supreme 

Court’s decision in Graham v. Florida.

19 The Graham Court 

found it unconstitutional to sentence a nonhomicide juvenile 

offender to a “sentence [that] guarantees he [or she] will 

die in prison without any meaningful opportunity to obtain 

release.”20 But we noted that the Court had not decided 

whether a lengthy term-of-years sentence was, for constitutional purposes, the same as a sentence of life imprisonment 

16 State v. Nollen, supra note 11.

17 See, Casiano v. Commissioner of Correction, 317 Conn. 52, 115 A.3d 

1031 (2015), cert. denied ___ U.S. ___, 136 S. Ct. 1364, 194 L. Ed. 2d 

376 (2016) (50-year sentence); State v. Ronquillo, 190 Wash. App. 765, 

361 P.3d 779 (2015) (mandatory release at age 68).

18 State v. Smith, supra note 12.

19 Graham v. Florida, supra note 15.

20 Id., 560 U.S. at 79.
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without the possibility of parole. We observed that “a number 

of courts have held that sentences that allow the juvenile 

offender to be released in his or her late sixties or early seventies satisfy the ‘meaningful opportunity’ requirement.”21 We 

also recognized that “other courts have interpreted Graham

to mean that the juvenile offender must be released a certain 

number of years before his life expectancy.”22 Ultimately, we 

concluded in Smith that a sentence for kidnapping in which 

the juvenile offender would be eligible for parole at age 62 

comported with the principles set forth in Graham.

Although this case involves a homicide, our analysis in 

Smith provides guidance. The Miller Court highlighted that the 

reasoning from Graham still applied to homicide offenses:

Graham’s flat ban on life without parole applied only to 

nonhomicide crimes, [but] none of what it said about children—about their distinctive (and transitory) mental traits 

and environmental vulnerabilities—is crime-specific. . 

. . So, Graham’s reasoning implicates any life-withoutparole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.23

And, in a homicide case,24 we adhered to our conclusions 

in Smith. There, we found no merit to the juvenile offender’s contention that his parole eligibility at age 56 was 

unconstitutional.

We digress at this point to recognize the reversal of State 

v. Zuber,

25 a New Jersey case that we have discussed26 and 

cited27 approvingly. In that case, the sentences imposed on a 

21 State v. Smith, supra note 12, 295 Neb. at 977, 892 N.W.2d at 65.

22 Id. (emphasis in original).

23 Miller v. Alabama, supra note 1, 567 U.S. at 473.

24 See State v. Jones, supra note 9.

25 State v. Zuber, 442 N.J. Super. 611, 126 A.3d 335 (2015), reversed 227 

N.J. 422, 152 A.3d 197 (2017).

26 See State v. Cardeilhac, 293 Neb. 200, 876 N.W.2d 876 (2016).

27 See State v. Smith, supra note 12.
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juvenile offender for nonhomicide crimes totaled 110 years 

but the offender would be eligible for parole in 55 years at 

approximately age 72. The Superior Court of New Jersey 

assumed, but did not decide, that Graham could apply. As 

part of its analysis, it used life expectancy tables, which predicted that the offender would outlive his parole ineligibility period. The court concluded that the aggregate sentence 

was not a de facto life sentence, because the offender had 

a meaningful and realistic opportunity to obtain release. We 

thus included this case as one in which a court found that a 

lengthy term of years was not the equivalent of a life sentence.28 Slightly over 1 year ago, the New Jersey Supreme 

Court reversed, and remanded for resentencing.29 It found that 

lengthy term-of-years sentences imposed on juveniles implicated the principles of Graham and Miller. It directed that at 

the new sentencing hearing, the trial court should consider the 

offender’s “‘immaturity, impetuosity, and failure to appreciate risks and consequences’; ‘family and home environment’; 

family and peer pressures; ‘inability to deal with police officers or prosecutors’ or his own attorney; and ‘the possibility 

of rehabilitation.’”30

The theme emerging from all the jurisprudence discussed 

above is that a sentencing court must consider a juvenile 

offender’s “youth and attendant characteristics”31 in fashioning a punishment. The district court has done that here. And 

we are mindful that the U.S. Supreme Court has not precluded 

a court from imposing a sentence of life imprisonment without possibility of parole for a juvenile convicted of homicide. 

The Miller Court stated: “Although we do not foreclose a 

sentencer’s ability to make that judgment in homicide cases, 

we require it to take into account how children are different, 

28 See, id.; State v. Cardeilhac, supra note 26.

29 State v. Zuber, 227 N.J. 422, 152 A.3d 197 (2017).

30 Id. at 453, 152 A.3d at 215.

31 Miller v. Alabama, supra note 1, 567 U.S. at 483.
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and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”32 While Russell will not be 

eligible for parole until age 72, the sentence imposed affords a 

“meaningful and realistic opportunity to obtain release”33 from 

prison. We cannot say that the court abused its discretion in 

resentencing Russell.

CONCLUSION

The record shows that the district court considered principles from Miller and the relevant sentencing factors. Because 

the district court did not abuse its discretion in resentencing 

Russell to 110 to 126 years in prison, we affirm.

Affirmed

Wright and Kelch, JJ., not participatin

32 Id., 567 U.S. at 480.

33 State v. Smith, supra note 12, 295 Neb. at 979, 892 N.W.2d at 66.