State v. Miller
| Decision Date | 07 February 1986 |
| Docket Number | No. 85-396,85-396 |
| Citation | 221 Neb. 862,381 N.W.2d 156 |
| Parties | STATE of Nebraska, Appellee, v. Jerald MILLER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Sentences: Due Process: Constitutional Law. Although a defendant is entitled to due process upon sentencing, the Constitution does not require that he be given the full panoply of rights accorded when the issue is guilt or innocence.
2. Sentences: Due Process. Due process safeguards must be observed when a new charge leading to magnified criminal punishment is made in an enhanced sentence proceeding.
3. Sentences: Evidence. Trial courts have broad discretion in sentencing, both in the evidence to be considered and in the procedure by which such evidence is gathered and used.
Dennis R. Keefe, Lancaster County Public Defender, and Richard L. Goos, Sp. Deputy Public Defender, for appellant.
Robert M. Spire, Atty. Gen., and Terry R. Schaaf, Asst. Atty. Gen., for appellee.
The defendant, Jerald Miller, appeals from the finding by the district court that he was not entitled to a full due process evidentiary hearing, including confrontation of witnesses, on the issue as to whether he was a mentally disordered sex offender.
On September 10, 1984, the defendant was charged with first degree sexual assault on a child, a Class II felony under Neb.Rev.Stat. § 28-319(1)(c) (Reissue 1979). On February 26, 1985, pursuant to discussions between the State and the defendant, the defendant was rearraigned on an amended information charging him with the misdemeanor offense of third degree sexual assault upon a person physically or mentally incapable of resisting or appraising the nature of his conduct. Neb.Rev.Stat. § 28-320(1)(b) (Reissue 1979). The defendant thereupon, after being fully advised as to his constitutional rights, voluntarily and intelligently entered a plea of no contest. The court accepted the defendant's plea and found him guilty.
Pursuant to Neb.Rev.Stat. § 29-2912 (Reissue 1979), the trial court ordered a presentence investigation which was to include evaluation of the defendant by a psychiatrist and a psychologist to determine whether he was a mentally disordered sex offender and whether he was treatable. Neb.Rev.Stat. § 29-2913 (Reissue 1979). After the first two reports had been received, the defendant requested a second evaluation by another psychiatrist and psychologist. § 29-2913. This request was granted.
On April 25, 1985, the defendant filed a "Motion for Evidence Hearing and Right of Confrontation" concerning the mentally disordered sex offender issue. He also filed a motion to declare the statute unconstitutional. These motions were overruled.
At the sentencing hearing the trial court considered the reports that had been received and determined that the defendant was a treatable mentally disordered sex offender. The defendant was sentenced to imprisonment for 1 year, the sentence to be served at the Lincoln Regional Center, where he could receive treatment for the mental disorder. He was given 257 days' credit for time spent in custody awaiting trial. This appeal followed.
The defendant assigns five errors which raise but one issue: whether he was denied due process and his right of confrontation because he was not given a full evidentiary hearing on the issue as to whether he was a treatable mentally disordered sex offender.
Neb.Rev.Stat. § 29-2915 (Reissue 1979) sets out the procedure under which a defendant is to be sentenced, committed, and discharged if found to be a treatable mentally disordered sex offender. The statute provides:
[T]he court shall, after first sentencing the defendant as provided by law for the offense for which he or she has been convicted, commit the defendant for treatment ... until such time as the court determines ... that the defendant is no longer mentally disordered or until the defendant has received the maximum benefit of treatment, except that no sentence to treatment shall exceed the maximum length of such offender's sentence.
The statute further provides:
The entire proceeding to determine whether the defendant is a mentally-disordered sex offender and treatable shall be deemed a critical stage of a criminal prosecution at which the defendant shall be accorded all the rights a defendant has in sentencing proceedings. The court's decision that the defendant is a mentally-disordered sex offender and the decision to commit the defendant for treatment may be appealed.
The defendant argues that his right to due process and his right of confrontation were abridged by the trial court's denial of a full evidentiary hearing because of the decision in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). The defendant contends that Specht is controlling and mandates that he be given a hearing, including confrontation of witnesses, prior to sentencing. The defendant, however, misinterprets the decision in Specht. Although a defendant is entitled to due process upon sentencing, the Constitution does not require that he be given the full panoply of rights accorded when the issue is guilt or innocence. See, Gardner v. Florida, 430 U.S. 349, 358 n. 9, 97 S.Ct. 1197, 1205 n. 9, 51 L.Ed.2d 393 (1977); State v. Goodpasture, 215 Neb. 341, 338 N.W.2d 446 (1983).
In Specht v. Patterson, supra, the Court dealt with a challenge to Colorado's sex offenders act. In that case the defendant had been convicted under an indecent liberty statute but was sentenced under the sex offenders act which allowed for the imposition of an indeterminate term of from 1 day to life. The U.S. Supreme Court held that due process safeguards must be observed when a new charge leading to magnified criminal punishment is made in an enhanced sentence proceeding.
The Nebraska statute is distinguishable in that "no sentence to treatment shall exceed the maximum length of such offender's sentence." § 29-2915. The statute does not allow any enhancement of the defendant's sentence because he is a mentally disordered sex offender. Furthermore, the Nebraska statute recognizes that the defendant "shall be accorded all the [due process] rights a defendant has in sentencing proceedings."
Trial courts have broad discretion in sentencing, both in the evidence to be considered and in the procedure by which such evidence is gathered and used. See, State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984); State v. Goodpasture, supra; State v. Anderson and Hochstein, 207 Neb. 51, 296 N.W.2d 440 (1980), cert. denied 450 U.S. 1025, 101 S.Ct. 1731, 68 L.Ed.2d 219 (1981). More specifically, this court has stated:
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