State v. Hurbenca

• Decision Date: 10 October 2003
• Docket Number: No. S-02-1161.,S-02-1161.
• Citation: 266 Neb. 853,669 N.W.2d 668
• Parties: STATE of Nebraska, Appellee, v. Vasile HURBENCA, Appellant.
• Court: Nebraska Supreme Court

669 N.W.2d 668

266 Neb. 853

STATE of Nebraska, Appellee, v. Vasile HURBENCA, Appellant.

No. S-02-1161.

Supreme Court of Nebraska.

October 10, 2003.

James R. Mowbray, Lincoln and Nancy K. Peterson, of Nebraska Commission on Public Advocacy, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

WRIGHT, J.

I. NATURE OF CASE

Vasile Hurbenca pled guilty to a charge of attempted escape, and the district court for Lancaster County found him to be a habitual criminal under Neb.Rev.Stat. § 29-2221 (Reissue 1995). The court sentenced Hurbenca to 10 to 15 years' imprisonment to be served consecutively to any sentence he was currently serving and ordered that he serve a mandatory term of 10 years. Hurbenca appeals.

II. SCOPE OF REVIEW

Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the court below. State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002).

Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Segura, 265 Neb. 903, 660 N.W.2d 512 (2003).

III. FACTS

Hurbenca was charged by amended information with attempted escape and with being a habitual criminal. At the plea hearing, the State provided a factual basis which established that Hurbenca was an inmate of the Nebraska Department of Correctional Services at the Nebraska State Penitentiary when on the morning of April 25, 2001, he and three other inmates entered the prison chapel, where they taped and bound several inmates, prison employees, and a volunteer. Hurbenca and his cohorts then drove an all-terrain vehicle to the inner fence of the penitentiary and attempted to escape by climbing over the fences surrounding the penitentiary.

Hurbenca entered a plea of guilty to the charge of attempted escape, which was accepted by the district court. Hurbenca filed a motion to quash the amended information as it pertained to his habitual criminal status and requested that the court find § 29-2221 to be unconstitutional. The court subsequently overruled Hurbenca's motion to quash and found him to be a habitual criminal. The court sentenced Hurbenca to 10 to 15 years' imprisonment to be served consecutively to any sentence he was currently serving and ordered that he serve a mandatory term of 10 years.

Hurbenca timely filed this appeal, and we granted his petition to bypass the Nebraska Court of Appeals.

IV. ASSIGNMENTS OF ERROR

Hurbenca assigns, restated, that the district court (1) erred in overruling his motion to quash for the reason that § 29-2221 is unconstitutional because it (a) increases the potential punishment without providing for a finding of fact by a jury, (b) fails to require the prosecution to prove habitual criminality beyond a reasonable doubt, and (c) violates the Eighth Amendment prohibition against cruel and unusual punishment; (2) abused its discretion by imposing an excessive sentence; and (3) erred in admitting exhibits 2 through 6 and subsequently finding Hurbenca to be a habitual criminal.

V. ANALYSIS

1. MOTION TO QUASH

(a) Increase in Potential Punishment Without Finding of Fact by Jury

Hurbenca first argues that § 29-2221 violates his 6th Amendment right to a trial by jury, his rights under the Due Process Clause contained in the 14th Amendment to the U.S. Constitution, and his rights under article I, § 6, of the Nebraska Constitution. He claims that § 29-2221 is unconstitutional because it does not grant him the right to a jury trial to determine the existence of facts which authorize an increase in his punishment beyond that which is statutorily authorized for attempted escape, a Class IV felony. He asserts that because § 29-2221 authorized an increase in his sentence beyond the 5-year maximum for a Class IV felony without requiring a finding of fact by a jury, the statute is unconstitutional as it applies to him.

Thus, the issue before us is whether a jury must determine the fact of prior convictions for purposes of sentence enhancement under Nebraska's habitual criminal statute, § 29-2221. Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the court below. State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002).

Section 29-2221(1) provides:

Whoever has been twice convicted of a crime, sentenced, and committed to prison, in this or any other state or by the United States or once in this state and once at least in any other state or by the United States, for terms of not less than one year each shall, upon conviction of a felony committed in this state, be deemed to be an habitual criminal and shall be punished by imprisonment in a Department of Correctional Services adult correctional facility for a mandatory minimum term of ten years and a maximum term of not more than sixty years....

Hurbenca relies upon Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002); and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to support his position that any factor which could result in the increase of a sentence beyond the maximum allowed by statute is actually an element of the crime and must be decided by a jury. In support of his argument, Hurbenca notes the following excerpt from Harris:

Apprendi said that any fact extending the defendant's sentence beyond the maximum authorized by the jury's verdict would have been considered an element of an aggravated crime-and thus the domain of the jury-by those who framed the Bill of Rights. The same cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury's verdict has authorized the judge to impose the minimum with or without the finding.

536 U.S. at 557, 122 S.Ct. 2406. Hurbenca asserts that because § 29-2221 does not allow a jury to determine the issue of whether a defendant has prior criminal convictions, it is unconstitutional. For this reason, Hurbenca claims that his motion to quash was erroneously overruled and that the district court's finding that he is a habitual criminal was in error.

In Apprendi, supra, the defendant was convicted pursuant to a guilty plea of possession of a firearm for an unlawful purpose and unlawful possession of a prohibited weapon. He was sentenced to an extended term under New Jersey's "hate crime statute." Both the Superior Court and the New Jersey Supreme Court affirmed. Upon certiorari, the U.S. Supreme Court reversed, and remanded, finding that the state hate crime statute violated the Due Process Clause. The hate crime statute authorized an increase in maximum prison sentence based on a judge's finding by a preponderance of the evidence that the defendant acted with purpose to intimidate the victim based on the particular circumstances of the victim violated. However, the Court stated:

In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) ]. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), quoting Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (Stevens, J., concurring).

The Court set forth the rationale for treating prior convictions differently than elements of the offense when it noted in Apprendi that

recidivism "does not relate to the commission of the offense" itself.... [T]here is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.

530 U.S. at 496, 120 S.Ct. 2348.

Apprendi considered the determination of a prior conviction to be a narrow exception to the general rule that it is unconstitutional for a legislature to remove from a jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. In U.S. v. Henderson, 320 F.3d 92, 110 (1st Cir.2003), cert. denied ___ U.S. ___, 123 S.Ct. 2597, 156 L.Ed.2d 620, the Court of Appeals stated:

We have consistently observed with a "regularity bordering on the monotonous," that Apprendi does not apply to sentencing enhancements based on prior convictions. United States v. Moore, 286 F.3d 47, 50 (1st Cir.2002); see also United States v. Bradshaw, 281 F.3d 278, 294 (1st Cir.2002)

; United States v. Gomez-Estrada, 273 F.3d 400, 402 (1st Cir.2001).

Nebraska's recently amended capital sentencing scheme requires a jury to determine aggravating circumstances when the death penalty is sought. See 2002 Neb. Laws, 3d Special Sess., L.B. 1. In State v. Gales, 265 Neb. 598, 624, 658 N.W.2d 604, 624 (2003), we stated: "[T]he existence of any aggravating circumstance utilized in the imposition of [a] sentence of death, other than a prior criminal...