State v. Russell
| Decision Date | 05 June 2015 |
| Docket Number | No. S–14–927.,S–14–927. |
| Parties | State of Nebraska, Appellee, v. Cory L. Russell, Appellant. |
| Court | Nebraska Supreme Court |
Bryan C. Meismer for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.
1. Statutes: Appeal and Error.Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.
2. Pleas: Appeal and Error.A trial court is given discretion as to whether to accept a guilty plea, and an appellate court will overturn that decision only where there is an abuse of discretion.
3. Sentences: Sexual Assault.For purposes of the authorized limits of an indeterminate sentence under Neb. Rev. Stat. § 29–2204(1)(a)(ii)(A) (Cum. Supp. 2014), both “mandatory minimum” as used in Neb. Rev. Stat. § 28–319.01(2) (Cum. Supp. 2014) and “minimum” as used in Neb. Rev. Stat. § 28–105 (Cum. Supp. 2014) in regard to a Class IB felony mean the lowest authorized minimum term of the indeterminate sentence.
4. Sentences: Probation and Parole.A person convicted of a felony for which a mandatory minimum sentence is prescribed is not eligible for probation.
5. Sentences.Good time reductions do not apply to mandatory minimum sentences.
6. Sentences: Probation and Parole: Sexual Assault.The mandatory minimum required by Neb. Rev. Stat. § 28–319.01(2) (Cum. Supp. 2014) affects both probation and parole.
7. Pleas.In order to support a finding that a plea of guilty or no contest has been entered freely, intelligently, voluntarily, and understandingly, among other requirements the record must establish that the defendant knew the range of penalties for the crime with which he or she is charged.
8. Statutes: Presumptions: Legislature: Intent: Appeal and Error.In construing a statute, appellate courts are guided by the presumption
that the Legislature intended a sensible rather than absurd result in enacting the statute.
9. Sentences: Sexual Assault.The range of penalties for sexual assault of a child in the first degree, first offense, under Neb. Rev. Stat. § 28–319.01(2) (Cum. Supp. 2014), is 15 years' to life imprisonment.
10. Sentences.A court's failure to advise a defendant of the correct statutory minimum and maximum penalties does not automatically warrant reversal.
11. Sentences: Probation and Parole.In the event of a discrepancy between the statement of the minimum limit of a sentence and the statement of parole eligibility, the statement of the minimum limit controls the calculation of an offender's term.
12. Sentences.The meaning of a sentence is, as a matter of law, determined by the contents of the sentence itself.
13. Judges: Sentences: Probation and Parole.A trial judge's incorrect statement regarding time for parole eligibility is not part of the sentence and does not evidence ambiguity in the sentence imposed.
Cory L. Russell appeals from his plea-based conviction and sentence for sexual assault of a child in the first degree. He argues that because he was not correctly advised of the 15–year “mandatory minimum,” his plea was not entered knowingly. To resolve the appeal, we (1) explain the distinction, in this context, between “minimum” and “mandatory minimum”; (2) determine the correct range of penalties; (3) conclude that the error was not prejudicial; and (4) describe why the different
good time calculation for a “mandatory minimum” does not affect the validity of the plea.
The controlling statute states, “Sexual assault of a child in the first degree is a Class IB felony with a mandatory minimum sentence of fifteen years in prison for the first offense.”1 The general statute prescribing the range of penalties for a Class IB felony specifies a “[m]inimum” of 20 years' imprisonment and a “[m]aximum” of life imprisonment.2
The State filed an information charging Russell with 27 counts of sexual assault of a child in the first degree. Pursuant to a plea agreement, the State agreed to file an amended information charging Russell with only one count of that offense in return for Russell's plea of no contest to the charge. The amended information did not allege that Russell had any prior convictions.
Prior to accepting Russell's plea, the district court advised Russell that the crime “carries a minimum of 20 years['] incarceration and a maximum of life.” The court accepted Russell's plea of no contest and adjudged him guilty of sexual assault of a child in the first degree.
At the sentencing hearing, the district court stated that the offense carried “a mandatory minimum of at least 20 years.” The court imposed a sentence of 40 to 50 years' imprisonment. The court advised Russell that he “must serve 20 years, less 332 days served on the minimum term before you would be eligible for parole, and 25 years, less 332 days served on the maximum term before mandatory release.”
Russell timely appealed, and we moved the case to our docket under our statutory authority to regulate the caseloads of the appellate courts of this state.3
Russell assigns that the district court erred by not properly advising him of the crime's range of penalties prior to the acceptance of his plea.
Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.4
A trial court is given discretion as to whether to accept a guilty plea, and an appellate court will overturn that decision only where there is an abuse of discretion.5
Meaning of “Mandatory Minimum”
In order to address Russell's assignment of error, we must determine the specific meaning of the phrase “mandatory minimum sentence” in § 28–319.01(2). From one context to another, the meaning of the term “mandatory minimum” can vary. In some instances, it may be a term of art, while in other circumstances, it may be used only in the general sense of the two words. For example, a “minimum” prescribed by § 28–105 can be described as “mandatory” in the sense that a judge is not authorized to impose an indeterminate sentence of imprisonment having a minimum term which is less than the statutorily authorized minimum sentence.6 We have previously stated that a court must advise a defendant of any mandatory minimum sentence that will apply.7 But in none of those cases were we faced with a “mandatory minimum sentence” in the
sense that the only consequences were to prohibit probation eligibility and to deny any good time prior to service of the mandatory minimum term. Those consequences did not exist in statute for a felony offense until 1995.8 Thus, we must explain the differences and similarities between the terms in the specific statutes before us.
For purposes of the authorized limits of an indeterminate sentence under § 29–2204(1)(a)(ii)(A), both “mandatory minimum” as used in § 28–319.01(2) and “minimum” as used in § 28–105 in regard to a Class IB felony mean the lowest authorized minimum term of the indeterminate sentence. Thus, in that sense, there is no difference between the two.
But the Legislature has prescribed different consequences regarding probation and parole, depending upon whether the bottom end of a sentence is a “minimum” or a “mandatory minimum.” Under current law regarding the specific statutes before us, there are two significant differences between a “minimum” and a “mandatory minimum.”
First, a court cannot place the convicted offender on probation. We have said that whether probation or incarceration is ordered is a choice within the discretion of the trial court, whose judgment denying probation will be upheld in the absence of an abuse of discretion.9 Thus, with respect to the “minimum” required for a Class IB felony under § 28–105, a court is generally authorized to suspend the sentence and impose a term of probation.10 But a person convicted of a felony for which a mandatory minimum sentence is prescribed is not eligible for probation.11 Because § 28–319.01(2) imposes a mandatory minimum of 15 years' imprisonment for sexual assault of a child in the first degree, a sentence to probation is not authorized.
The second consequence is that the offender will not receive any good time for the entire duration of the mandatory minimum. Good time reductions do not apply to mandatory minimum sentences.12 This has consequences for the good time calculations for both the minimum and maximum terms of an indeterminate sentence. We have held that in calculating parole eligibility, a defendant must serve the mandatory minimum plus one-half of any remaining minimum sentence before becoming eligible for parole.13 Thus, where the court sentences an offender to a minimum term equal to the applicable mandatory minimum, the offender becomes eligible for parole only after serving the full mandatory minimum. And we have determined that good time credit cannot be applied to the maximum term of an indeterminate sentence before the mandatory minimum sentence has been served.14 Thus, in calculating mandatory release, a defendant must serve the mandatory minimum plus one-half of any remaining maximum sentence.15
Therefore, under our current statutes, the mandatory minimum required by § 28–319.01(2) affects both probation and parole. Probation is not authorized in sentencing an offender for sexual assault of a child in the first degree. And good time credit cannot be allowed until the full amount of the mandatory minimum term of imprisonment has been served. The designation of the minimum as “mandatory” in § 28–319.01(2) does not affect the range of penalties, but the statute's specification of a different minimum does.
Long ago, we articulated that in order to support a finding that a plea of guilty or no contest has been entered
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...have held that the meaning of a sentence is, as a matter of law, determined by the contents of the sentence itself. State v. Russell , 291 Neb. 33, 863 N.W.2d 813 (2015). We have also held that the pronounced terms of imprisonment prevail over any conflicting truth-in-sentencing advisements......
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State v. Loding
...(1996).44 Neb. Rev. Stat. § 28-319.01(2) (Reissue 2016).45 Id. See, also, Neb. Rev. Stat. § 28-105 (Reissue 2016) ; State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).46 State v. Draper , supra note 3.47 Id.48 See ...
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State v. Miranda-Henriquez
...minimum of 15 years' imprisonment. See, Neb. Rev. Stat. §§ 28-105 (Reissue 2008) and 28-319.01(2). See, also, State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015). Miranda-Henriquez' sentences of 50 to 60 years'imprisonment with the 15-year mandatory minimums are within the statutory senten......
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State v. Brungardt
...did not prejudice Brungardt because he was advised of a higher potential penalty than the one he actually faced. See State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015). Although Russell, supra, involved an improper advisement at a plea hearing, it is nonetheless helpful here. In Russell, ......