State v. Boche
| Decision Date | 07 October 2016 |
| Docket Number | No. S-15-677.,S-15-677. |
| Citation | 294 Neb. 912,885 N.W.2d 523 |
| Parties | State of Nebraska, appellee, v. Jason J. Boche, appellant. |
| Court | Nebraska Supreme Court |
Barbara J. Masilko and Chelsey R. Hartner, Deputy Madison County Public Defenders, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
Wright, Connolly, Miller–Lerman, Cassel, and Stacy, JJ., and Moore and Bishop, Judges.
Jason J. Boche was convicted of first degree sexual assault committed while he was a juvenile. He was sentenced to 1 year's imprisonment and was found to be subject to both lifetime sex offender registration and lifetime community supervision. Boche contends the lifetime requirements are cruel and unusual punishments because he was a juvenile when the offense was committed. We conclude neither lifetime requirement amounts to cruel and unusual punishment, and affirm the conviction and sentence.
On December 1, 2014, Boche was charged with first degree sexual assault in the district court for Madison County. The information alleged he subjected another to sexual penetration without consent on or about January 1, 2005, through December 31, 2008. Boche was a juvenile at the time the alleged acts occurred, but had reached the age of majority by the time charges were filed in district court.
Boche eventually entered into a plea agreement. In exchange for his plea of no contest, the State agreed to recommend a sentence of not more than 1 year's imprisonment and agreed to file no additional charges. Prior to accepting the plea, the court informed Boche that if a jury found the offense was aggravated, he would be subject to mandatory lifetime registration requirements under the Sex Offender Registration Act (SORA) and to mandatory lifetime community supervision by the Office of Parole Administration.1
As a factual basis for the plea, the State recited that the victim was born in June 1997, that Boche had penile-vaginal intercourse with the victim on several occasions, and that during a taped interview, Boche admitted he and the victim engaged in oral sex. The sexual acts occurred while the victim was between the ages of 6 and 11 and Boche was between the ages of 11 and 16. Boche waived his right to a jury trial on the aggravation issue, and after an evidentiary hearing, the court concluded it was an aggravated offense under § 29–4001.01, because the victim was under the age of 13. Section 29–4001.01 provides:
(1) Aggravated offense means any registrable offense under section 29–4003 which involves the penetration of, direct genital touching of, oral to anal contact with, or oral to genital contact with (a) a victim age thirteen years or older without the consent of the victim, (b) a victim under the age of thirteen years, or (c) a victim who the sex offender knew or should have known was mentally or physically incapable of resisting or appraising the nature of his or her conduct.
Boche argued that because he was a juvenile at the time the acts occurred, finding him to be an aggravated offender and thus subject to lifetime registration under § 29–4005(1)(b) of SORA and to lifetime community supervision under § 83–174.03 would subject him to cruel and unusual punishment, in violation of the Eighth Amendment to the U.S. Constitution. The district court found § 29–4001.01 made no distinction based on the age of the offender and sentenced Boche to 1 year's imprisonment, ordered him to register under SORA for life, and found he was subject to lifetime community supervision. Boche filed this timely appeal.
Boche assigns, restated, that the trial court erred in (1) imposing cruel and unusual punishment on him by sentencing him to lifetime sex offender registration and lifetime community supervision when he committed the aggravated offense as a juvenile and (2) violating the Ex Post Facto Clause when it sentenced him to lifetime community supervision.
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 The constitutionality of a statute presents a question of law.3
The State contends that neither of Boche's two assignments of error are properly before us because Boche did not file a notice of constitutional question pursuant to Neb. Ct. R. App. P. § 2–109(E) (rev. 2014), which states:
A party presenting a case involving the federal or state constitutionality of a statute must file and serve notice thereof with the Supreme Court Clerk by a separate written notice or by notice in a Petition to Bypass at the time of filing of such party's brief. If the Attorney General is not already a party to an action where the constitutionality of the statute is in issue, a copy of the brief assigning unconstitutionality must be served on the Attorney General within 5 days of the filing of the brief with the Supreme Court Clerk; proof of such service shall be filed with the Supreme Court Clerk.
The § 2–109(E) requirement is driven by the mandates of article V, § 2, of the Nebraska Constitution, which provides in pertinent part:
A majority of the members [of the Supreme Court] sitting shall have authority to pronounce a decision except in cases involving the constitutionality of an act of the Legislature. No legislative act shall be held unconstitutional except by the concurrence of five judges.... The judges of the Supreme Court, sitting without division, shall hear and determine all cases involving the constitutionality of a statute....
The § 2–109(E) notice requirement was implemented because it “assists the clerk and this court in ensuring that an appeal involving the constitutionality of a statute is heard by the full court.”4 The rule also ensures the Attorney General is promptly advised of a constitutional challenge to a statute so the appeal may be staffed and handled accordingly.
Here, Boche is not arguing that §§ 29–4001.01, 29–4003, 29–4005(1)(b), and 83–174.03 are unconstitutional on their face and must be judicially invalidated. Instead, he contends the registration and community supervision provisions of those statutes, although valid and enforceable on their face, cannot constitutionally be applied to him. The initial question before us is whether a § 2–109(E) notice is required in such a situation.
In Zawaideh v. Nebraska Dept. of Health & Human Services,5 we implied that a § 2–109(E) notice was not required unless a litigant was presenting a facial challenge to the constitutionality of a statute:
Although [appellant] is presenting a facial challenge to the constitutionality of a statute, he did not file a notice of constitutional question pursuant to Neb. Ct. R. App. P. § 2–109(E) (rev. 2008), which requires that a party challenging a statute's constitutionality file and serve notice with the Supreme Court Clerk at the time of filing the party's brief. And we have repeatedly held that strict compliance with § 2–109(E) is required for the court to address a constitutional claim. Therefore, we do not address [appellant's] claims regarding the constitutionality of various statutes. However, we do consider his claims that the application of those statutes in this instance violated his right to due process .
Our language in Zawaideh has caused confusion, and may explain why no § 2–109(E) notice was filed in the present appeal.
The distinction drawn in Zawaideh between facial and as-applied challenges can be important when it comes to determining whether a constitutional issue has been preserved for appellate review. This is because challenges to the constitutionality of a criminal statute as applied to a defendant are preserved by a plea of not guilty,6 but to bring a constitutional challenge to the facial validity of a statute, the proper procedure is to file a motion to quash, and all defects not raised in a motion to quash are taken as waived by a defendant pleading the general issue.7
But the distinction between facial and as-applied constitutional challenges is immaterial when it comes to the § 2–109(E) notice. Neither the constitutional provision which prompted our court rule, nor the court rule itself, make any distinction between facial and as-applied constitutional challenges. Nor, in terms of the underpinnings of the court rule, is there any rationale for distinguishing between facial and as-applied challenges; all challenges to the constitutionality of a statute should be heard by a full court, and a supermajority is required to declare any statute unconstitutional, without regard to whether the challenge is facial or as-applied.
In prior cases, we have insisted on “strict compliance” with § 2–109(E).8 The importance of a constitutional challenge demands our full attention and adherence to constitutional mandates. We take this opportunity to clarify that strict compliance with § 2–109(E) is necessary whenever a litigant challenges the constitutionality of a statute, regardless of how that constitutional challenge may be characterized. To the extent we suggested otherwise in Zawaideh, we expressly disapprove of such language. But because the absence of a § 2–109(E) notice in this appeal may have been prompted by our language in Zawaideh, we conclude it is appropriate to consider the as-applied constitutional challenges Boche presents.
Once a plea of guilty has been accepted, the defendant waives every defense to the charge. All defects not raised in a motion to quash are taken as waived by a defendant pleading the general issue.9 The voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge, whether the defense is procedural, statutory, or constitutional.10
Here, Boche entered a plea of no contest to the charge of first degree sexual assault, and in doing so, he waived every...
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People ex rel. T.B.
...measure, and the requirement bears a rational relationship to the Legislature's purpose ...." (emphasis added)); State v. Boche, 294 Neb. 912, 885 N.W.2d 523, 532 (2016) ("Because we conclude the lifetime registration requirements imposed on [the juvenile] are not punishment, his argument t......
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People ex rel. T.B.
...sex offender registration is punishment, his claim that registration is cruel and unusual punishment must fail."); State v. Boche , 294 Neb. 912, 885 N.W.2d 523, 532 (2016) ("Because we conclude the lifetime registration requirements imposed on [the juvenile] are not punishment, his argumen......
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State v. Trail
...161 L. Ed. 2d 1 (2005).152 Id. , quoting Trop v. Dulles , 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d. 630 (1958).153 State v. Boche , 294 Neb. 912, 885 N.W.2d 523 (2016).154 Johnson v. Mississippi , 486 U.S. 578, 584, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988) (internal quotation marks omitted)......
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White v. Busboom
...v. Nebraska Dept. of Health & Human Servs., 280 Neb. 997, 792 N.W.2d 484 (2011), disapproved on other grounds, State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).10 See, Scott v. County of Richardson, 280 Neb. 694, 789 N.W.2d 44 (2010) ; 63C Am. Jur. 2d Public Officers and Employees § 136 ......