2023 Nebraska Revised Statutes › Chapter 29 - Criminal Procedure › 29-2204.02 - Sentence for Class III, IIIA, or IV felony; court; duties; defendant under eighteen years of age; disposition.

29-2204.02.
Sentence for Class III, IIIA, or IV felony; court; duties; defendant under eighteen years of age; disposition.
(1) Except when a term of probation is required by law as provided in subsection (2) of this section or except as otherwise provided in subsection (4) of this section, in imposing a sentence upon an offender for a Class III, IIIA, or IV felony, the court shall:
(a) Impose a determinate sentence of imprisonment within the applicable range in section 28-105; and
(b) Impose a sentence of post-release supervision, under the jurisdiction of the Office of Probation Administration, within the applicable range in section 28-105.
(2) If the criminal offense is a Class IV felony, the court shall impose a sentence of probation unless:
(a) The defendant is concurrently or consecutively sentenced to imprisonment for any felony other than another Class IV felony;
(b) The defendant has been deemed a habitual criminal pursuant to section 29-2221; or
(c) There are substantial and compelling reasons why the defendant cannot effectively and safely be supervised in the community, including, but not limited to, the criteria in subsections (2) and (3) of section 29-2260. Unless other reasons are found to be present, that the offender has not previously succeeded on probation is not, standing alone, a substantial and compelling reason.
(3) If a sentence of probation is not imposed, the court shall state its reasoning on the record, advise the defendant of his or her right to appeal the sentence, and impose a sentence as provided in subsection (1) of this section.
(4) For any sentence of imprisonment for a Class III, IIIA, or IV felony for an offense committed on or after August 30, 2015, imposed consecutively or concurrently with (a) a sentence for a Class III, IIIA, or IV felony for an offense committed prior to August 30, 2015, or (b) a sentence of imprisonment for a Class I, IA, IB, IC, ID, II, or IIA felony, the court shall impose an indeterminate sentence within the applicable range in section 28-105 that does not include a period of post-release supervision, in accordance with the process set forth in section 29-2204.
(5) For any sentence of imprisonment for a misdemeanor imposed consecutively or concurrently with a sentence of imprisonment for a Class III, IIIA, or IV felony for an offense committed on or after August 30, 2015, the court shall impose a determinate sentence within the applicable range in section 28-106 unless the person is also committed to the Department of Correctional Services in accordance with section 29-2204 for (a) a sentence of imprisonment for a Class III, IIIA, or IV felony committed prior to August 30, 2015, or (b) a sentence of imprisonment for a Class I, IA, IB, IC, ID, II, or IIA felony.
(6) If the defendant was under eighteen years of age at the time he or she committed the crime for which he or she was convicted, the court may, in its discretion, instead of imposing the penalty provided for the crime, make such disposition of the defendant as the court deems proper under the Nebraska Juvenile Code.
(7)(a) When imposing a determinate sentence upon an offender under this section, the court shall:
(i) Advise the offender on the record the time the offender will serve on his or her term of imprisonment before his or her term of post-release supervision assuming that no good time for which the offender will be eligible is lost;
(ii) Advise the offender on the record the time the offender will serve on his or her term of post-release supervision; and
(iii) When imposing a sentence following revocation of post-release supervision, advise the offender on the record the time the offender will serve on his or her term of imprisonment, including credit for time served, assuming that no good time for which the offender will be eligible is lost.
(b) If a period of post-release supervision is required but not imposed by the sentencing court, the term of post-release supervision shall be the minimum provided by law.
(c) 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.
(d) If the offender has been sentenced to two or more determinate sentences and one or more terms of post-release supervision, the offender shall serve all determinate sentences before being released on post-release supervision.
Source
Laws 2015, LB605, § 61;
Laws 2016, LB1094, § 11.
Cross References
Nebraska Juvenile Code, see section 43-2,129.
Annotations
1. Determinate or indeterminate sentence
2. Sentence of probation
3. Retroactivity of legislation
4. Miscellaneous
1. Determinate or indeterminate sentence
For purposes of the indeterminacy requirement in subsection (4) of this section, it matters not when the underlying offenses occurred in relation to each other or that some of the relevant charges were brought via charging documents; subsection (4) is broad enough that it theoretically could be read to impose an indeterminacy requirement upon a Class III, Class IIIA, or Class IV felony sentence imposed consecutively or concurrently with a Class I, IA, IB, IC, ID, II, or IIA felony sentence that is already in progress. What matters under subsection (4) is that the sentences for those offenses are imposed consecutively or concurrently to each other. State v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021).
It is plain error under subsection (4) of this section for a sentencing court to order determinate sentences for three Class IV felonies to be imposed consecutively with a Class IIA felony sentence. State v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021).
A sentence of imprisonment upon revocation from post-release supervision is a determinate sentence within the meaning of this section. State v. Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020).
Where the district court sentenced a defendant for a Class II felony and imposed a concurrent sentence for a Class IV felony for offenses occurring in 2017, the court plainly erred by imposing a determinate sentence rather than an indeterminate sentence for the Class IV felony. State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
A determinate sentence, as used in subdivision (1)(a) of this section, is imposed when the defendant is sentenced to a single term of years. State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).
A determinate sentence is imposed when the defendant is sentenced to a single term of years, such as a sentence of 2 years' imprisonment. In contrast, when imposing an indeterminate sentence, a sentencing court ordinarily articulates either a minimum term and maximum term or a range of time for which a defendant is to be incarcerated. State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017).
In Nebraska, the fact that the minimum term and maximum term of a sentence are the same does not affect the sentence's status as an indeterminate sentence. State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017).
A defendant's sentence on a Class IIIA felony needed to be an indeterminate sentence because the defendant was also sentenced on Class II felonies. State v. Wells, 28 Neb. App. 118, 940 N.W.2d 847 (2020).
A defendant's sentences on various misdemeanors needed to be indeterminate sentences pursuant to subsection (5) of this section, because the defendant was also sentenced on Class II felonies. State v. Wells, 28 Neb. App. 118, 940 N.W.2d 847 (2020).
2. Sentence of probation
This section encompasses a policy decision by the Legislature favoring probationary sentences for Class IV felonies, and findings required under this section do not necessarily apply to sentencing decisions pertaining to higher-level offenses. State v. McGovern, 311 Neb. 705, 974 N.W.2d 595 (2022).
A determination of whether there are substantial and compelling reasons under subdivision (2)(c) of this section is within the trial court's discretion and will not be reversed on appeal absent an abuse of discretion. State v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017).
The court may fulfill the requirement of subsection (3) of this section to state its reasoning on the record by a combination of the sentencing hearing and sentencing order. State v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017).
The court's determination of substantial and compelling reasons under subdivision (2)(c) of this section should be based on a review of the record, including the presentence investigation report and the record of the trial, and its determination must be supported by such record. State v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017).
3. Retroactivity of legislation
The trial court did not plainly err by failing to impose an indeterminate sentence where an information alleged that a Class IIIA felony occurred over a period of time both before and after August 30, 2015; the evidence about when the assaults occurred could cover dates before and after August 30; and the jury did not make a specific finding demonstrating that it found the offense was committed after August 30. State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).
The defendant's sentence of 2 years' imprisonment with a 12-month period of post-release supervision for possession of a controlled substance was vacated pursuant to State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971), where the defendant was sentenced concurrently for two Class IV felonies and a Class W misdemeanor and where after sentencing, but while the matter was pending on appeal, 2016 Neb. Laws, L.B. 1094, struck section 29-2260(5) and added subsection (4) of this section, which precluded post-release supervision. State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).
Under the nonretroactive provision of section 28-105(7), the changes made in this section to the penalties for Class IV felony convictions by 2015 Neb. Laws, L.B. 605, do not apply to any offense committed before August 30, 2015. State v. Benavides, 294 Neb. 902, 884 N.W.2d 923 (2016).
It is clear that the Legislature did not intend to apply this section retroactively. State v. Raatz, 294 Neb. 852, 885 N.W.2d 38 (2016).
4. Miscellaneous
The statutory provisions of this section and section 28-105 relating to post-release supervision are mandatory, and a sentence that fails to impose post-release supervision when required is an appropriate matter for an appellate court's discretionary plain error review. State v. Roth, 311 Neb. 1007, 977 N.W.2d 221 (2022).
A transfer from juvenile court to criminal court does not eliminate the possibility of disposition under the juvenile code. In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018).
Section 29-2204 and subsection (4) of this section do not require a sentence for a Class IV felony to have a minimum term less than the maximum term. State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017).
If a defendant was previously subject to parole under preexisting sentences and subsequently sentenced in other cases either concurrently or consecutively to the prior sentences, subsection (4) of this section prevents the defendant from being subject to post-release supervision. State v. Lillard, 27 Neb. App. 824, 937 N.W.2d 1 (2019).
Subsection (4) of this section applies in a situation where sentences are imposed and the defendant is serving preexisting sentences. State v. Lillard, 27 Neb. App. 824, 937 N.W.2d 1 (2019).