State v. Shockley
| Decision Date | 17 February 1989 |
| Docket Number | No. 88-366,88-366 |
| Citation | 435 N.W.2d 903,231 Neb. 247 |
| Parties | STATE of Nebraska, Appellee, v. Douglas A. SHOCKLEY, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. 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.
2. Constitutional Law: Mentally Disordered Sex Offender: Due Process. Neb.Rev.Stat. §§ 29-2911 et seq. (Reissue 1985), regarding the determination of whether a criminal is a mentally disordered sex offender, afford sufficient procedural protections to survive constitutional attack.
3. Sentences: Appeal and Error. Sentences imposed within the limits prescribed by the statutes in question will not be disturbed on appeal absent an abuse of discretion.
Dennis R. Keefe, Lancaster County Public Defender, and Coleen J. Nielsen, Lincoln, for appellant.
Robert M. Spire, Atty. Gen., and Vanessa R. Jones, Lincoln, for appellee.
This is an appeal from a criminal conviction returned after a plea of no contest to attempted first degree sexual assault on a child, a Class III felony. After the appellant's conviction, the court ordered a presentence investigation, including a mentally disordered sex offender evaluation.
Two months later, on January 13, 1988, the defendant requested additional evaluations. That request was granted. On March 11, the defendant filed three motions with regard to the mentally disordered sex offender determination. The first was entitled "Motion to Determine Statutes Unconstitutional." In that motion, the appellant asked the court to declare the mentally disordered sex offender act, Neb.Rev.Stat. §§ 29-2911 et seq. (Reissue 1985), void and unenforceable as unconstitutional, asserting that the statutes deprived the defendant of his right to due process of law, confrontation, and compulsory process.
The second defense motion concerned the burden of proof in the determination of whether the defendant was a mentally disordered sex offender. The final motion requested an evidentiary hearing regarding the determination of the mentally disordered sex offender status. All motions were overruled by the court on March 21.
The defendant was sentenced to imprisonment under the jurisdiction of the Department of Correctional Services for a term of not less than 4 nor more than 8 years. The defendant was then committed to the Lincoln Regional Center for treatment of his mental disorder until such time as he is no longer mentally disordered, or when he has received the maximum benefit of treatment.
The defendant contends that the district court erred in (1) denying the appellant an evidentiary hearing and refusing to find the mentally disordered sex offender act unconstitutional, and (2) imposing an excessive sentence.
The appellant is urging this court to abandon its holding in State v. Miller, 221 Neb. 862, 381 N.W.2d 156 (1986), in which we distinguished the Nebraska mentally disordered sex offenders act from the Colorado sex offender statute, which was held unconstitutional by the U.S. Supreme Court in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). We decline to do so.
Although in Miller we were concerned with a misdemeanor conviction, while in the present case the appellant stands convicted of a felony, the logic of our opinion in Miller is equally applicable in this case. In fact, the appellant in the present action is statutorily accorded more due process rights than the appellant in Miller, as § 29-2912 states that the procedural protections of §§ 29-2911 to 29-2921 are merely discretionary with the court in cases of misdemeanors. Therefore, we find Miller controlling, and affirm the judgment of the district court.
As discussed in Miller, Specht concerned a challenge to Colorado's sex offenders act. The defendant in Specht 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. We distinguished the statute at issue in Specht from § 29-2915, stating:
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."
State v. Miller, supra 221 Neb. at 865, 381 N.W.2d at 158. Because we can see no basis for distinguishing the present case from Miller, this first assignment of error is without merit.
Next, the appellant challenges the sentence imposed by the district court, contending that it is excessive. The appellant was convicted of attempted first degree sexual assault on a child, a Class III felony. This crime carries a penalty of 1 to 20 years' imprisonment. The sentence imposed of 4 to 8 years is within the limits prescribed by statute. This court has repeatedly held that sentences imposed within the limits prescribed by the statutes in question will not be disturbed on appeal absent an abuse of discretion. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988); State v. Dillon, 222 Neb 131, 382 N.W.2d 353 (1986). It does not appear from the record that the trial judge abused his discretion. Therefore, this assignment of error is also without merit.
Because we find both of appellant's assignments of error to be meritless, the judgment of the district court is affirmed.
AFFIRMED.
I dissent in the present case for the reasons articulated in my dissent in State v. Miller, 221 Neb. 862, 381 N.W.2d 156 (1986). In Miller, I stated at 866-67, 381 N.W.2d at 159:
That a person may be confined in the same institution as a sex offender without having the opportunity to examine the basis (if any) of the analyst's conclusion, while the mentally ill patient has had that right, does not seem to me to be consistent with due process or equal protection of the law.
I maintain my belief that such disparate treatment is incompatible with the constitutional guarantees of due process and equal protection, and additionally believe that both the present case and Miller are inconsistent with the reasoning of the U.S. Supreme Court in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980).
In Vitek, the Supreme Court affirmed the decision of the federal district court of Nebraska in declaring Neb.Rev.Stat. § 83-180 (Reissue 1987) unconstitutional. Section 83-180 provided for the transfer of inmates from a correctional facility into a mental institution, merely on the basis of the recommendation of a physician or psychologist. The statute provided no procedure to ensure compliance with due process guarantees. The district court invalidated the statute on two grounds, and the Supreme Court agreed that both of the grounds were independently sufficient to declare the statute unconstitutional. The first basis relied upon for declaring the statute unconstitutional concerned the statutorily created liberty right contained in the particular statutory scheme. The second ground, however, is equally applicable to proceedings pursuant to Neb.Rev.Stat. §§ 29-2911 et seq. (Reissue 1985), the statutes at issue in this appeal.
As stated by the Supreme Court, "The District Court was also correct in holding that independently...
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State v. James
...that he was convicted of a crime that does not exist in Nebraska. We find this argument to be without merit. In State v. Shockley, 231 Neb. 247, 435 N.W.2d 903 (1989), this court affirmed a criminal conviction for attempted first degree sexual assault on a child, which is a crime in James a......
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State v. Cook
...was not entitled to confront adverse witnesses on the issue of whether the offender is mentally disordered. In State v. Shockley, 231 Neb. 247, 435 N.W.2d 903 (1989), the same majority of this court refused to hold the subject act unconstitutional on the grounds it deprived an offender of h......
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