State v. Nollen
| Decision Date | 17 March 2017 |
| Docket Number | No. S-16-133.,S-16-133. |
| Citation | 892 N.W.2d 81,296 Neb. 94 |
| Parties | STATE of Nebraska, appellee, v. Dale V. NOLLEN, appellant. |
| Court | Nebraska Supreme Court |
Adam J. Sipple, of Johnson & Mock, P.C., L.L.O., Oakland, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
In 1983, Dale V. Nollen, at age 17, pled guilty to first degree murder and was sentenced to a mandatory term of life imprisonment. Pursuant to the U.S. Supreme Court decision in Miller v. Alabama ,1 this sentence was vacated. Prior to resentencing, a hearing was held, and Nollen produced evidence of certain mitigating factors, as well as evidence of his reform while in prison. Following the hearing, Nollen was resentenced to 90 years' to life imprisonment. Nollen appeals this sentence, alleging, among other things, that the sentence violates the 8th and 14th Amendments to the U.S. Constitution and the principles set forth in Miller and Graham v. Florida .2
Nollen was 17 years old in January 1983 when he and a friend, Brian D. Smith, participated in criminal acts which led to the death of Mary Jo Hovendick (Mary Jo). Nollen turned himself in to the police, pled guilty to first degree murder, and was sentenced to mandatory life imprisonment.
In 2010, the U.S. Supreme Court decided Graham ,3 in which it held that the Eighth Amendment prohibits the imposition of life imprisonment without parole upon juvenile offenders who have not committed homicide. In 2012, in Miller ,4 the Court held that the Eighth Amendment prohibits mandatory life imprisonment without parole for juvenile offenders.
In 2013, Nollen filed a motion for postconviction relief, which was granted. The district court vacated Nollen's sentence and ordered a presentence report and comprehensive mental health examination pursuant to Neb. Rev. Stat. § 28-105.02 (Reissue 2016). A resentencing hearing was set for January 4, 2016.
At the resentencing hearing, Nollen's counsel argued that Nollen should receive a lesser sentence because of mitigating circumstances at the time of the crime and because Nollen's character had been reformed while he was in prison. In summarizing the evidence presented at the resentencing hearing, we take a chronological approach. We first review the evidence of mitigating circumstances leading up to Nollen's offense. We next review the evidence of the offense, Nollen's confession and conviction, Nollen's time in prison, and the results of a comprehensive mental health examination conducted on Nollen in 2015. Finally, we set forth the facts concerning the district court's disposition of this case.
The evidence of mitigating circumstances comes mostly from the presentence report. According to the presentence report, Nollen ran away from home on December 31, 1982—11 days before the events leading to his conviction. Nollen reported that at the time of his offense, his father was an alcoholic and was physically abusive toward Nollen and his mother. His mother was also an alcoholic.
In 1983, Nollen's neighbors gave written statements indicating that there was "constant fighting" within Nollen's home and that Nollen was often left home alone with his younger sister. One neighbor stated that Nollen "always seemed eager to do things with [the neighbor's] family" and would sometimes visit just to "get away from home when there were family problems." Other Blair, Nebraska, citizens were aware of Nollen's parents' drinking problems and that Nollen's homelife was "not very pleasant." Records indicate that the police received several calls regarding the Nollen residence for such things as child abuse and neglect. Due to a fire, however, reports made in connection with those calls are not available.
On January 3 or 4, 1983 (2 to 3 days after Nollen left his home), Nollen dropped out of school. He was in his senior year. Nollen reported that high school was " ‘rough,’ " that he didn't " ‘fit in,’ " and that other students made fun of him for wearing "hand-me-down" clothing.
On January 5, 1983, Smith attended a church choir rehearsal in Blair. According to a statement made by the director of the choir, Nollen went to her and informed her of his plans to run away to Missouri with his friend, Smith. The director and the director's mother, who was an accompanist for the group, asked Nollen if he wanted to talk to the reverend about it. The director's mother found the reverend, and the three of them talked to Nollen about why he wanted to run away. Nollen talked about "bad family life—parents drinking, parents taking his money, no one ever caring." Although the three adults tried to convince Nollen to finish school and stay home at least until he was 18, Nollen stated that he was " ‘at the end of [his] rope.’ "
The following version of the offense is taken primarily from Nollen's 2007 application for commutation, which was admitted into evidence at his resentencing hearing. The application was also admitted into evidence at Smith's resentencing hearing. Accordingly, the facts set forth below are almost identical to those set forth in this court's opinion disposing of Smith's appeal.5
On January 11, 1983, Nollen was living with his friend Smith's older brother and the older brother's girlfriend. Nollen had "a bit of a crush" on her and accompanied her to Omaha, Nebraska, for a job interview. On the way back to Blair from Omaha, she asked Nollen if he knew where they could get $50 to pay a gas bill. Nollen thought for a while and came up with the idea to rob a doughnut shop in Blair. He had worked there previously and was familiar with the layout. When Nollen worked there, the money from a day's sales was left in the store overnight and deposited the next morning by the owner. Nollen explained in the application, Smith's older brother's girlfriend agreed to the plan, but told Nollen not to tell Smith's older brother because he would not approve.
When Smith's older brother's girlfriend and Nollen returned to Smith's residence, Nollen told Smith about the plan and asked Smith if he wanted to go with him. Smith said he did.
At around 3 p.m. on January 11, 1983, Smith and Nollen went into the doughnut shop to see who was working. It was 21-year-old Mary Jo. After Smith and Nollen talked to Mary Jo briefly, they left the doughnut shop through the front door, walked around to the back alley, through a back door of the doughnut shop, and into the basement of the shop.
Smith and Nollen waited in the basement. They "smoked a couple bowls of pot and talked about how pretty Mary Jo is." Nollen made a comment "about the only way [they] would have a chance with her would be to take it." Smith asked Nollen if he wanted to, and Nollen laughed and said "okay." According to Nollen, they got up and walked toward the stairs and Nollen then stopped and said, "[F]___ that, if we did that we would have to kill her so she wouldn't tell on us." Smith and Nollen went back and sat down again.
Smith and Nollen did not talk much for the next hour or so. During that time, Nollen thought about how pretty Mary Jo was and "how nice it would be to have sex with her." Nollen knew Mary Jo from school. Nollen wrote, Nollen "fell asleep thinking about [Mary Jo]," and Smith woke him up about an hour later.
Because neither Smith nor Nollen had a watch, neither one knew how long they had been waiting. Without knowing what time it was, they walked upstairs to see if they could hear anything. They determined that the store was closed, because Mary Jo was in the office. Nollen could hear her counting the money and told Smith that she was getting the money ready for deposit. He explained that this meant that she would take it to the bank and there would be only $20 left in the register (instead of about $200). Nollen asked Smith what he wanted to do, and Smith said, "[L]et's get it all."
Smith ran to the stairs and hid, and Nollen waited by the office door. After Mary Jo saw Nollen, Nollen walked up to her and put his hand over her mouth so she would not scream. Nollen took her out to the hallway and instructed Smith to go and get the money. Smith got the money and put it in his pockets.
Nollen asked Mary Jo about her car, and she told him where it was. Nollen told Smith that he was going to get the car and that when Nollen honked the horn, Smith was to come out with Mary Jo. Smith complied. After the two of them got into the car with Nollen, he drove off. They stopped at a gas station, and Smith got out and put gas in the car, then went in and paid for it. After they left the gas station, Smith said he wanted to drive, so Smith and Nollen changed places. Smith drove around country roads while Nollen went through Mary Jo's purse, took $20 and gave it to Smith, then threw her purse and its contents out the window.
Mary Jo had been sitting on the center console, so Nollen told her she could sit on his lap and pulled her toward him. Mary Jo slid over and sat on one of Nollen's legs. According to Nollen, he started thinking about having sex with Mary Jo again. He wrote, "It was really intense now, because I could smell her perfume and feel how soft her skin is." Nollen told Smith to pull over, and Smith complied. Nollen forced Mary Jo into the back seat and climbed back there with her. He told Mary Jo to take her clothes off. At first, she did not comply, but then Nollen told her angrily "so she would listen." Eventually Mary Jo complied. Nollen got on top...
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