- 483 - N ebraska S upreme C ourt A dva nc e S heets 299 N ebraska R eports STATE v . RUSSELL Cite as 299 Neb. 483



### S tate of 

### N ebraska 

### , appellee 

### , v



### . P

atri c k 

### R

. R ussell 

### , appella n t



### . ___ N.W.2d ___
Filed March 30, 2018. No. S-17-197.

1. Sentences: Appeal and Error. An appellate court will not disturb a sen

tence 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 mat

ters 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) men

tality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) moti

vation 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 com

mitted 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) impetuos

ity, (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: T homas 

### A

. O tepka 

### , Judge. Affirmed. Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 04/20/2018 01:08 AM CDT- 484 - N ebraska S upreme C ourt A dva nc e S heets 299 N ebraska R eports STATE v . RUSSELL Cite as 299 Neb. 483 

### Thomas C. Riley, Douglas County Public Defender, and Annie O. Hayden for appellant. Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

H eavi c a n 

### , C.J., M iller



### - L erma n 

### , C assel 

### , S ta c y 

### , and F u n ke 

### , JJ., and P irtle 

### and B ishop 

### , Judges.

C assel 

### , J. INTRODUCTION In 1974, a court sentenced Patrick R. Russell to life impris

onment for a murder he committed at age 17. Following deci

sions in Miller v. Alabama 1 

### 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 C rime a n d 

### D ire c t 

### A ppeal 

### 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 grand

mother 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).- 485 - N ebraska S upreme C ourt A dva nc e S heets 299 N ebraska R eports STATE v . RUSSELL Cite as 299 Neb. 483 

### Our prior opinion also discussed Russell’s mental condi

tion. 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



### P ost c o n vi c tio n a n d 

### R ese n te nc i n g 

### Following decisions in Miller 5 

### 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 docu

ments regarding Russell’s misconduct reports, achievements while incarcerated, and reclassification forms used by the peni

tentiary to determine placement. The district court heard live testimony from a witness. Kirk A.B. Newring, Ph.D., a psychologist, testified that stud

ies show the brains of adolescents are not fully formed. He explained that the prefrontal cortex—which allows for delib

eration, 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 demon

stratively impaired in “hot logic situations where there’s emo

tional arousal.” Newring testified that Russell reported a strong

4 Id.

5 Miller v. Alabama, supra note 1.

6 State v. Mantich, supra note 2.- 486 - N ebraska S upreme C ourt A dva nc e S heets 299 N ebraska R eports STATE v . RUSSELL Cite as 299 Neb. 483 

### 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 inad

equately 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 com

munity corrections center if he were not serving a life sentence. In other words, Russell “has the institutional behavior and his

tory 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 dur

ing 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 evalu

ation 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 cus

tody 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 convic

tion 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 testi

fied 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 fam

ily support in the community. Newring explained that Russell was employable, did not have a major mental illness, had a- 487 - N ebraska S upreme C ourt A dva nc e S heets 299 N ebraska R eports STATE v . RUSSELL Cite as 299 Neb. 483 

### good work history, handled stress fairly well within the insti

tution, 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 him

self while incarcerated. In 1981, Russell obtained a diploma through the GED program and earned credentials of minis

try 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 prob

lems 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 hos

pitalized in 1970 with an admission diagnosis of adolescent schizophrenia. After an evaluation, a doctor felt that Russell “represented borderline retardation and adolescent adjust

ment 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.- 488 - N ebraska S upreme C ourt A dva nc e S heets 299 N ebraska R eports STATE v . RUSSELL Cite as 299 Neb. 483 

### Upon admission to a psychiatric hospital in 1978, Russell indicated that he had no mental disorders. However, staff per

ceived 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 per

son “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 stay

ing at the Omaha Home for Boys because he was “hard to han

dle,” 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.- 489 - N ebraska S upreme C ourt A dva nc e S heets 299 N ebraska R eports STATE v . RUSSELL Cite as 299 Neb. 483 

### 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 supervi

sion.” 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 appeal 8 

### 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 occa

sions in the PSR, it was reported that Russell denied and mini

mized 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 rep

resenting him.

7 Miller v. Alabama, supra note 1.

8 State v. Russell, supra note 3.- 490 - N ebraska S upreme C ourt A dva nc e S heets 299 N ebraska R eports STATE v . RUSSELL Cite as 299 Neb. 483 

### The district court recognized the importance of consider

ing mitigating factors before sentencing a juvenile offender. It stated: [T]he State doesn’t challenge the vast body of neurosci

entific 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 con

sider 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 mitigat

ing factors, which the Court considered. In attempting to fashion a fair and appropriate sentence — resentence, excuse me, based on the law and the evi

dence, the Court does so within the context of the facts of this case. All sentences are driven in part by the particu

lar 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.- 491 - N ebraska S upreme C ourt A dva nc e S heets 299 N ebraska R eports STATE v . RUSSELL Cite as 299 Neb. 483 

### 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 rea

sons 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 resen

tenced in response to Miller , and who then appealed that sen

tence. 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’ impris

onment 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).- 492 - N ebraska S upreme C ourt A dva nc e S heets 299 N ebraska R eports STATE v . RUSSELL Cite as 299 Neb. 483 

### 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) moti

vation 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) impetuos

ity, (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 pro

fessional 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 recogniz

ing 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).- 493 - N ebraska S upreme C ourt A dva nc e S heets 299 N ebraska R eports STATE v . RUSSELL Cite as 299 Neb. 483 

### 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 high

lights 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 constitu

tional 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.- 494 - N ebraska S upreme C ourt A dva nc e S heets 299 N ebraska R eports STATE v . RUSSELL Cite as 299 Neb. 483 

### 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 seven

ties 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 chil

dren—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 cat

egorical 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 offend

er’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 discussed 26 

### and cited 27 

### 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.- 495 - N ebraska S upreme C ourt A dva nc e S heets 299 N ebraska R eports STATE v . RUSSELL Cite as 299 Neb. 483 

### 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 pre

dicted that the offender would outlive his parole ineligibil

ity 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 sen

tence. 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 impli

cated 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 appreci

ate risks and consequences’; ‘family and home environment’; family and peer pressures; ‘inability to deal with police offi

cers 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 fashion

ing 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 with

out 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.- 496 - N ebraska S upreme C ourt A dva nc e S heets 299 N ebraska R eports STATE v . RUSSELL Cite as 299 Neb. 483 

### and how those differences counsel against irrevocably sentenc

ing 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 prin

ciples 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. A ffirmed



### . W right 

### and K el c h 

### , JJ., not participating.

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

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