Nebraska Advance Sheets

STATE v. CASTERLINE 985

Cite as 290 Neb. 985

State of Nebraska, appellee, v. 

Shelley L. Casterline, appellant.

___ N.W.2d ___

Filed May 22, 2015. No. S-14-911.

1. Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

2. Statutes: Appeal and Error. Statutory interpretation is a question of law that an 

appellate court resolves independently of the trial court.

3. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When an 

appellate court judicially construes a statute and that construction fails to evoke 

an amendment, it is presumed that the Legislature has acquiesced in the court’s 

determination of the Legislature’s intent.

Appeal from the District Court for Webster County: Stephen

R. Illingworth, Judge. Affirmed.

James R. Mowbray and Jeffery A. Pickens, of Nebraska 

Commission on Public Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and George R. Love 

for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Heavican, C.J.

INTRODUCTION

The defendant, Shelley L. Casterline, pled guilty to second degree murder and was sentenced to a term of life-to-life 

imprisonment. Casterline appeals. We affirm.

FACTUAL BACKGROUND

On November 14, 2013, Casterline was charged with first 

degree murder, use of a weapon to commit a felony, and 

burglary in connection with the death of Virginia Barone. 

Pursuant to a plea bargain, on April 22, 2014, Casterline 

pled guilty to second degree murder, a Class IB felony. On 

September 30, Casterline was sentenced to “not less than life 

and not more than life imprisonment,” with credit for 353 

days’ time served.
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986 290 NEBRASKA REPORTS

ASSIGNMENT OF ERROR

On appeal, Casterline assigns, restated and consolidated, that 

the district court erred in sentencing her to a term of life-to-life 

imprisonment.

STANDARD OF REVIEW

[1] When dispositive issues on appeal present questions 

of law, an appellate court has an obligation to reach an 

independent conclusion irrespective of the decision of the 

court below.1

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

appellate court resolves independently of the trial court.2

ANALYSIS

Casterline’s argument on appeal is that the district court 

erred in sentencing her to a life-to-life term of imprisonment. 

Casterline advances two primary arguments in support of this: 

(1) that Neb. Rev. Stat § 29-2204 (Cum. Supp. 2014) requires 

a minimum limit of “any term of years” and that a term of life 

imprisonment does not qualify and (2) that her sentence violates Neb. Rev. Stat. §§ 28-105 (Cum. Supp. 2014), 28-304(2) 

(Reissue 2008), and § 29-2204.

Section 29-2204 provides in relevant part:

(1) Except when a term of life imprisonment is required 

by law, in imposing an indeterminate sentence upon an 

offender the court shall:

. . . .

[(a)](ii) Beginning July 1, 1998:

(A) Fix the minimum and maximum limits of the sentence to be served within the limits provided by law for 

any class of felony other than a Class IV felony, except 

that when a maximum limit of life is imposed by the 

court for a Class IB felony, the minimum limit may be 

any term of years not less than the statutory mandatory 

minimum. If the criminal offense is a Class IV felony, the 

court shall fix the minimum and maximum limits of the 

1 State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).

2 State v. Ramirez, 285 Neb. 203, 825 N.W.2d 801 (2013).
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STATE v. CASTERLINE 987

Cite as 290 Neb. 985

sentence, but the minimum limit fixed by the court shall 

not be less than the minimum provided by law nor more 

than one-third of the maximum term and the maximum 

limit shall not be greater than the maximum provided by 

law; or

(B) Impose a definite term of years, in which event the 

maximum term of the sentence shall be the term imposed 

by the court and the minimum term shall be the minimum 

sentence provided by law;

(b) Advise the offender on the record the time the 

offender will serve on his or her minimum term before 

attaining parole eligibility assuming that no good time for 

which the offender will be eligible is lost; and

(c) Advise the offender on the record the time the 

offender will serve on his or her maximum term before 

attaining mandatory release assuming that no good time 

for which the offender will be eligible is lost.

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 mandatory release, the statements of the minimum limit and 

the maximum limit shall control the calculation of the 

offender’s term. If the court imposes more than one sentence upon an offender or imposes a sentence upon an 

offender who is at that time serving another sentence, the 

court shall state whether the sentences are to be concurrent or consecutive.

Section 28-304(2) classifies the crime of second degree 

murder as a Class IB felony. And § 28-105 sets forth the 

minimum and maximum sentences for all classes of felonies, 

including a Class IB felony. A Class IB felony is subject to 

imprisonment for 20 years to life.3

We have addressed, and rejected, on several occasions 

Casterline’s general contention regarding the permissibility 

of life-to-life sentences for second degree murder. In State v. 

3 § 28-105(1).
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988 290 NEBRASKA REPORTS

Marrs,

4

 we held that “[a]lthough § 29-2204(1)(a)(ii) permits a 

sentencing judge imposing a maximum term of life imprisonment for a Class IB felony to impose a minimum term of years 

not less than the statutory mandatory minimum, it does not 

require the judge to do so.” We accordingly held that a lifeto-life sentence was permissible.5

 We affirmed this holding in

State v. Moore6 and State v. Abdulkadir.

7

[3] In fact, Casterline acknowledges that this is the current 

state of the law, and instead seeks to have these cases overturned. Casterline argues that this line of cases is based upon 

our decision in State v. Schnabel8 and its incorrect interpretation 

of § 29-2204. Casterline also argues both that the Legislature 

made a mistake when it amended § 29-2204 and that this court 

need not be bound by the doctrine of legislative acquiescence, 

because it is a fiction. That doctrine generally holds that “when 

an appellate court judicially construes a statute and that construction fails to evoke an amendment, it is presumed that the 

Legislature has acquiesced in the court’s determination of the 

Legislature’s intent.”9

In Schnabel, we held that “[w]hen a flat sentence of ‘life 

imprisonment’ is imposed and no minimum sentence is stated, 

by operation of law, the minimum sentence is the minimum 

imposed by law under the statute.”10 But Casterline argues that 

the statute we relied upon in Schnabel, § 29-2204(1)(a)(ii)(B), 

applies only where a court imposes a sentence of a “definite 

term of years” and that life imprisonment, while a flat sentence, is not a term of years. Rather, Casterline contends, 

we should have relied upon § 29-2204(a)(ii)(A), found the 

4 State v. Marrs, 272 Neb. 573, 578, 723 N.W.2d 499, 504 (2006).

5 Id.

6 State v. Moore, 277 Neb. 111, 759 N.W.2d 698 (2009).

7 State v. Abdulkadir, 286 Neb. 417, 837 N.W.2d 510 (2013).

8 State v. Schnabel, 260 Neb. 618, 618 N.W.2d 699 (2000).

9 Wetovick v. County of Nance, 279 Neb. 773, 790-91, 782 N.W.2d 298, 313 

(2010).

10 Schnabel, supra note 8, 260 Neb. at 622, 618 N.W.2d at 702.
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STATE v. CASTERLINE 989

Cite as 290 Neb. 985

defendant’s sentence in Schnabel lacking, and remanded the 

cause for resentencing.

We decline to overrule our decision in Schnabel. Casterline’s 

ultimate contention is based upon the conclusion that a term 

of life imprisonment is not a term of years. But we effectively 

found that it was in Marrs, Moore, and Abdulkadir, and we 

will not now revisit this conclusion.

Even assuming that a life sentence is not a term of years, 

Casterline’s conclusion would lead to a strained reading of 

§ 29-2204(1)(a)(ii)(B); where a flat term of years was given, 

that subsection would require that the statutory minimum was 

the minimum term of the sentence. But where a flat term of 

life imprisonment was given, that sentence would be invalid 

and require resentencing. This would be the result, despite 

the fact that life imprisonment is a permissible sentence for a 

Class IB felony.11

We reject Casterline’s arguments that the Legislature made 

a mistake in amending § 29-2004. And it is not the place of 

this court to rewrite legislation, if indeed any mistakes were 

made with respect to § 29-2204. Nor will we ignore the doctrine of legislative acquiescence, as counsel urges us to do. 

Counsel indicated at oral arguments that mistakes were made 

in the 1993 amendments to § 29-2204; but that section has 

been amended seven times since 1993. Since this court decided 

Schnabel in 2000, the Legislature has amended § 29-2004 

three times. This suggests that the Legislature has had ample 

opportunity to fix any “mistakes” that may have been made 

and, further, that the Legislature has had time to correct any 

misinterpretation of § 29-2204 made by this court.

We also reject Casterline’s assertion that her life-to-life 

sentence was impermissible as a violation of §§ 28-105 and 

28-304. Section 28-304 classifies second degree murder as a 

Class IB felony, while first degree murder is either a Class I 

or a Class IA felony. And § 28-105 states that the sentence 

for a Class I felony is death, a Class IA felony is life imprisonment, and a Class IB felony is a minimum of 20 years’ 

11 See § 28-105(1).
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990 290 NEBRASKA REPORTS

imprisonment and a maximum sentence of life imprisonment. Casterline’s argument is that she was convicted of a 

Class IB felony, but that her life-to-life sentence is an effective life sentence without parole and thus punishes her for a 

Class IA felony.

In Moore, we rejected the defendant’s argument that 

§ 28-105 prevented a life-to-life sentence for a Class IB felony. 

But Casterline additionally relies on State v. Castaneda12 for 

the proposition that a life-to-life sentence in Nebraska is effectively a sentence of life imprisonment without parole.

This is not what we held in Castaneda. Our decision in 

Castaneda was premised on the question of whether our sentencing schemes provided the “meaningful” opportunity for 

parole within the meaning of Miller v. Alabama.

13 Miller dealt 

with the propriety of sentencing a juvenile offender to life 

imprisonment. We did not hold that a life-to-life sentence was 

equivalent to a sentence of life without parole, but instead 

we held, in part, that a life-to-life sentence did not provide 

juveniles a meaningful opportunity for parole for purposes 

of Miller.

Our case law clearly holds that a life-to-life sentence is permissible. That case law supports the conclusion that contrary to 

Casterline’s arguments on appeal, a term of life imprisonment 

is a term of years within the meaning of the statute. There is no 

merit to Casterline’s assignment of error on appeal.

CONCLUSION

The sentence of the district court is affirmed.

Affirmed.

12 State v. Castaneda, 287 Neb. 289, 842 N.W.2d 740 (2014).

13 Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 

(2012).