State v. Bainbridge

• Decision Date: 02 February 1996
• Docket Number: No. S-95-067,S-95-067
• Citation: 543 N.W.2d 154,249 Neb. 260
• Parties: STATE of Nebraska, Appellee, v. Brian Howard BAINBRIDGE, Appellant.
• Court: Nebraska Supreme Court

Page 154

543 N.W.2d 154

249 Neb. 260

STATE of Nebraska, Appellee, v. Brian Howard BAINBRIDGE, Appellant.

No. S-95-067.

Supreme Court of Nebraska.

Feb. 2, 1996.

Syllabus by the Court

1. Constitutional Law: Statutes: Appeal and Error. The alleged unconstitutionality of a statute presents a question of law which must be determined by a reviewing

court independently from the conclusion reached by the inferior court.

2. Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality.

3. Constitutional Law: Criminal Law: Statutes. A penal statute must be construed so as to meet constitutional requirements if such can reasonably be done.

4. Constitutional Law: Statutes: Proof. The burden of establishing a statute's unconstitutionality is on the party claiming it to be unconstitutional.

5. Constitutional Law: Statutes: Proof. The unconstitutionality of a statute must be clearly established before a court may declare it void.

6. Constitutional Law: Appeal and Error. A constitutional issue that has not been presented to or passed upon by the trial court is not appropriate for consideration on appeal.

7. Constitutional Law: Statutes. The issue of constitutionality of a statute must be specifically called to the trial court's attention in some way so that it has an opportunity to rule upon it.

8. Constitutional Law. The powers of the state government are separated into three distinct departments, none of which shall exercise the powers belonging to the others.

9. Constitutional Law: Board of Pardons. The Governor, Attorney General, and Secretary of State, sitting as a board, shall have power to grant commutations in all cases of conviction for offenses against the laws of the state.

10. Constitutional Law: Board of Pardons: Statutes: Sentences. Neb. Const. art. IV, § 13, clearly entrusts the power of commutation to the Board of Pardons, and a statute empowering the judiciary to reduce sentences already imposed violates the separation of powers clause.

11. Courts: Sentences. A sentencing court which chooses to substitute a milder punishment for the sentence it had originally imposed does the very thing which defines an act of commutation.

12. Sentences. The essence of a commutation of a sentence is the substitution of a milder punishment.

13. Statutes. When the words of a statute are plain, direct, and unambiguous, no interpretation is necessary or will be indulged to ascertain their meaning.

Appeal from the District Court for Douglas County; Gerald E. Moran, Judge, on appeal thereto from the County Court for Douglas County; Robert C. Vondrasek, Judge.

Michael W. Heavey, Papillion, for appellant.

Don Stenberg, Attorney General, and Mark D. Starr, Lincoln, for appellee.

WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, and GERRARD, JJ., and NORTON, District Judge, Retired.

PER CURIAM.

This is an appeal by Brian Howard Bainbridge, defendant-appellant, from the denial of his application, pursuant to former Neb.Rev.Stat. § 39-669.19 (Cum.Supp.1992), for reduction to time served of a 15-year revocation of his motor vehicle operator's license. Section 39-669.19 has since been transferred to Neb.Rev.Stat. § 60-6,209 (Reissue 1993). The county court for Douglas County denied Bainbridge's application for reduction. The court found that Bainbridge had not been cured and therefore concluded that he was not entitled to a reduction. The court, following State v. Philipps, 246 Neb. 610, 521 N.W.2d 913 (1994), held that it did not have the constitutional authority to reduce Bainbridge's sentence because § 60-6,209 violated the separation of powers clause contained in Neb. Const. art. II, § 1. The district court for Douglas County affirmed.

Bainbridge assigns two errors. He contends that (1) the trial court erred in determining that § 60-6,209 violates the Nebraska Constitution's separation of powers clause, and (2) if the statute is constitutional, the trial court abused its discretion by failing to reduce the revocation of Bainbridge's operator's license to time served. We affirm the judgment of the district court.

On March 14, 1989, Bainbridge was sentenced on a charge of driving while intoxicated (DWI). This was his sixth such offense. Bainbridge was sentenced to 180 days in jail and a $500 fine. The court also sentenced Bainbridge to a 15-year revocation of his motor vehicle operator's license pursuant to Neb.Rev.Stat. § 39-669.07(c) (Reissue 1988), since transferred to Neb.Rev.Stat. § 60-6,196(2)(c) (Reissue 1993).

In April 1994, Bainbridge filed an application to have his license revocation reduced to time served pursuant to § 39-669.19, since transferred to § 60-6,209.

On September 29, 1994, the county court held a hearing to determine whether a reduction should be granted. At the hearing, the State argued to the county court that § 60-6,209 was unconstitutional. The prosecutor stated at the hearing:

At this time, Judge, in light of the recent Supreme Court decision that was decided last week, the State would contend that the statute that the legislature passed enacting the provision that the Court may reduce the 15-year term to a 5-year term, is unconstitutional as a violation of the separation of powers.

At the conclusion of the proceedings, the county court held that Bainbridge's sentence should not be reduced. The court stated that based on the evidence, Bainbridge had not yet been cured. The judge also concluded that he no longer had the constitutional authority to reduce the revocation sentence. He based this conclusion on the Nebraska Supreme Court decision in Philipps, supra, decided 6 days prior to the hearing, which held that a sentence reduction statute was unconstitutional.

Concerning this court's standard of review, the alleged unconstitutionality of a statute presents a question of law which must be determined by a reviewing court independently from the conclusion reached by the inferior court. State v. Jones, 248 Neb. 117, 532 N.W.2d 293 (1995); Philipps, supra; State v. Schmailzl, 243 Neb. 734, 502 N.W.2d 463 (1993). "A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality." Jones, 248 Neb. at 119, 532 N.W.2d at 295. Accord Philipps, supra. Regarding a penal statute, it must be construed so as to meet constitutional requirements if such can reasonably be done. Jones, supra. The burden of establishing a statute's unconstitutionality is on the party claiming it to be unconstitutional. Id.; Philipps, supra. Also, the unconstitutionality of a statute must be clearly established before a court may declare it void. Philipps, supra; State v. LaChapelle, 234 Neb. 458, 451 N.W.2d 689 (1990).

Under his first assignment of error, Bainbridge contends that the court erred in finding the sentence reduction statute previously found in § 39-669.19, now found in § 60-6,209, unconstitutional. Bainbridge first argues that the county court should never have considered the constitutionality issue, claiming the State failed to properly raise the issue at Bainbridge's hearing. It is true that a constitutional issue that has not been presented to or passed upon by the trial court is not appropriate for consideration on appeal. Houska v. City of Wahoo, 235 Neb. 635, 456 N.W.2d 750 (1990); Snyder v. IBP, Inc., 235 Neb. 319, 455 N.W.2d 157 (1990). " '[W]e have long held that the issue must be specifically called to the trial court's attention in some way so that it has an opportunity to rule upon it....' " State v. Ulrich, 217 Neb. 817, 819-20, 351 N.W.2d 417, 419 (1984). In this case, the constitutional issue on appeal was called to the attention of the county judge. The record indicates that the court based its final decision in part on its finding that the statute was unconstitutional. This assignment is without merit.

Bainbridge contends that even if it was proper for the court to consider the constitutionality issue, the court erred in determining § 60-6,209 unconstitutional as a violation of the separation of powers clause. In Neb. Const. art. II, § 1, the powers of the state government are separated into three distinct departments, none of which shall exercise the powers belonging to the others. The power to commute sentences is entrusted in an executive department board of our state government known as the Board of Pardons. Article IV, § 13, of the Nebraska Constitution reads, in relevant part, "The Governor, Attorney General and Secretary of State, sitting as a board, shall have power to ... grant ... commutations in all cases of conviction for offenses against the laws of the state...."

In State v. Philipps, 246 Neb. 610, 521 N.W.2d 913 (1994), this court found unconstitutional Neb.Rev.Stat. § 29-2308.01 (Reissue 1989), which provided that the sentencing court may reduce a sentence it had previously imposed within 120 days after (1) the sentence was imposed or probation revoked or (2) the court received a mandate issued upon affirmance of the judgment or dismissal of the appeal. This court held that article IV, § 13, clearly entrusts the power of commutation to the Board of Pardons and that a statute empowering the judiciary to reduce sentences already imposed violates the separation of powers clause found in article II, § 1. We stated that "a sentencing court which chooses to substitute a milder punishment for the sentence it had originally imposed does the very thing which defines an act of commutation." Philipps, 246 Neb. at 616, 521 N.W.2d at 917.

The holding and rationale of Philipps were followed by this court in State v. Jones, 248 Neb. 117, 532 N.W.2d 293 (1995). The defendant in Jones was a sex offender seeking a sentence redetermination under Neb.Rev.Stat. § 29-2931 (Cum.Supp.1994), which provided the trial judge authority to (1) reduce the offender's sentence by placing him on probation with the condition that...