State v. Stratton

• Decision Date: 20 September 1985
• Docket Number: No. 85-088,85-088
• Citation: 374 N.W.2d 31,220 Neb. 854
• Parties: STATE of Nebraska, Appellee, v. James D. STRATTON, Appellant.
• Court: Nebraska Supreme Court

Page 31

374 N.W.2d 31

220 Neb. 854

STATE of Nebraska, Appellee, v. James D. STRATTON, Appellant.

No. 85-088.

Supreme Court of Nebraska.

Sept. 20, 1985.

Syllabus by the Court

1. Statutes: Words and Phrases. As a general rule, in the construction of statutes the word "shall" is considered mandatory, and inconsistent with the idea of discretion.

2. Statutes: Words and Phrases. A statute is not open to construction as a matter of course; in the absence of anything to indicate the contrary, words must be given their ordinary meaning.

3. Statutes: Appeal and Error. It is not within the province of the Nebraska Supreme Court to read a meaning into a statute that is not there, nor to read anything direct and plain out of a statute.

4. Constitutional Law: Legislature: Courts. The determination of what constitutes a legislative function and what constitutes a judicial one must be made on a case-by-case basis.

5. Constitutional Law: Criminal Law: Sentences: Legislature. Legislatures are not required to select the least severe penalty possible, so long as the penalty selected is neither cruelly inhumane nor disproportionate to the crime involved.

6. Constitutional Law: Criminal Law: Sentences: Courts. The law places upon judges the primary responsibility for imposing sentences within limits fixed by statute.

7. Constitutional Law: Criminal Law: Sentences: Legislature: Courts. The Legislature is clothed with the power of defining crimes and misdemeanors and fixing their punishment; its discretion in this respect, exercised within constitutional limits, is not subject to review by the courts.

8. Courts. It is the duty of courts to administer the law as it exists.

9. Constitutional Law: Criminal Law: Sentences. The requirement of Neb.Rev.Stat. § 28-1205(3) (Reissue 1979) that sentences imposed for the use of firearms to commit a felony be consecutive to any other sentence imposed does not constitute a violation of the distribution of powers mandated by Neb. Const. art. II, § 1, art. III, § 1, or art. V, § 9.

Paul D. Merritt, Jr., of McGinley, Lane, Mueller, O'Donnell & Merritt, P.C., Ogallala, for appellant.

Robert M. Spire, Atty. Gen., and Terry R. Schaaf, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, and GRANT, JJ., and BLUE, District Judge.

CAPORALE, Justice.

Defendant, James D. Stratton, appeals from the consecutive sentences imposed following his pleas of guilty to the charge of manslaughter and to the charge of using firearms to commit a felony. He assigns as errors (1) the failure to find the statutory requirement that any sentence imposed for the use of firearms to commit any felony be consecutive to any other sentence constitutes an unconstitutional invasion of the judicial branch of government by the legislative branch; (2) the failure to impose concurrent sentences; and (3) as cruel and unusual, and thus unconstitutional, the requirement of one of the sentences that he serve 2 days of each year of incarceration in solitary confinement. We affirm.

Stratton and the victim, Steven A. Staadts, entertained themselves by spending the afternoon and early evening of August 25, 1984, drinking at an Ogallala bar. They then left together to go to a birthday party at a trailer house in the same city, and on the way bought 2 gallons of wine and 2 cases of beer.

Nothing eventful happened at the party until Stratton wanted to leave. At that time he approached Staadts, who was talking to a woman outside the trailer. Staadts replied he was not ready to go and told Stratton to leave him alone, as he was talking to his "old lady." Since Staadts had previously introduced another woman as his girl friend, Stratton did not take the reply seriously and again asked Staadts if he was ready to go. This irritated Staadts and prompted the response, in strong language, that Staadts was going to do harm to Stratton. Staadts then, according to Stratton, got out of his chair and hit Stratton in the left eye. Stratton then "popped the knife and come back to port with it and he [Staadts] was on it." Upon further questioning Stratton admitted that he brought the knife forward and it went into Staadts' body.

Although several people were at the party, only one person admitted to actually witnessing the stabbing. This witness had not heard Stratton and Staadts arguing but saw Stratton stand up and take a knife out of his belt sheath. According to the witness, Staadts then stood up with his arms raised and his palms facing front, took a step forward, and lowered his arms. Stratton then "swung the knife" into the left side of Staadts' chest. Stratton removed the knife and Staadts backed up, brought his arms up to his chest, and yelled, "What did you do that for?" Stratton walked quickly to the street and then began running.

The stabbing occurred shortly after midnight, and Staadts died within a few hours. Stratton was arrested a few hours after the incident at the motel where he and his wife were living.

After the trial court accepted the two guilty pleas but before the sentencing hearing, Stratton filed a notice of intent to challenge the constitutionality of the requirement of Neb.Rev.Stat. § 28-1205(3) (Reissue 1979) that any sentence on the use of firearms charge be consecutive to any other sentence. The statute reads, in relevant part, as follows:

(1) Any person who uses a ... knife ... to commit any felony which may be prosecuted in a court of this state ... commits the offense of using firearms to commit a felony.

(2) Use of firearms to commit a felony is a Class III felony.

(3) The crime defined in this section shall be treated as a separate and distinct offense from the felony being committed, and sentences imposed under the provisions of this section shall be consecutive to any other sentence imposed.

The trial court construed "the mandatory language of the statute as not obligatory ... but as a strong recommendation by the legislature upon the judiciary."

Stratton was then sentenced to imprisonment for not less than 5 1/2 nor more than 16 1/2 years on the use of firearms charge and to a like sentence on the manslaughter charge. The latter sentence requires that during each year of incarceration, Stratton's birthday, August 23, and the anniversary of Staadts' death, August 26, be spent in solitary confinement. The two sentences were ordered to run consecutively.

We agree with Stratton's contention that the direction of § 28-1205(3), that "sentences imposed under the provisions of this section shall be consecutive" (emphasis supplied), mandates, if not unconstitutional, that a sentencing court require a sentence for the use of firearms in the commission of a felony be served consecutively to any other sentence imposed.

As a general rule, in the construction of statutes the word "shall" is considered mandatory, and inconsistent with the idea of discretion. Moyer v. Douglas & Lomason Co., 212 Neb. 680, 325 N.W.2d 648 (1982); State ex rel. Smith v. Nebraska Liquor Control Commission, 152 Neb. 676, 42 N.W.2d 297 (1950). We have held that a statute is not open to construction as a matter of course and that in the absence of anything to indicate the contrary, words must be given their ordinary meaning. Moreover, it is not within our province to read a meaning into a statute that is not there, nor to read anything direct and plain out of a statute. Sorensen v. Meyer, ante 457, 220 Neb. 457, 370 N.W.2d 173 (1985); Weiner v. State ex rel. Real Estate Comm., 214 Neb. 404, 333 N.W.2d 915 (1983). Clearly, the use of the word "shall" in § 28-1205(3) mandates consecutive sentencing. The question is whether, as Stratton argues, such a mandate is unconstitutional.

The question thus becomes whether, as claimed by Stratton under his first assignment of error, § 28-1205(3) constitutes an unconstitutional intrusion of the legislative branch into a judicial function.

Stratton's argument brings into play three separate provisions of the Nebraska Constitution:

Article II, § 1, which states: "The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted."

Article III, § 1, which reads in pertinent part: "[T]he legislative authority of the state shall be vested in a Legislature consisting of one chamber."

Article V, § 9, which provides: "The district courts shall have both chancery and common law jurisdiction, and such other jurisdiction as the Legislature may provide; and the judges thereof may admit persons charged with felony to a plea of guilty and pass such sentence as may be prescribed by law." (Emphasis supplied.)

As acknowledged in Lux v. Mental Health Board of Polk County, 202 Neb. 106, 274 N.W.2d 141 (1979), the line between that which constitutes a legislative function and that which constitutes a judicial one has not been drawn with precision. The determination must be made on a case-by-case basis.

Although no case directly in point has been cited to us nor found by our independent research, this court has recognized the power of the Legislature to fix criminal penalties.

For example, State v. Brand, 219 Neb. 402, 363 N.W.2d 516 (1985), involved a 35-year sentence without parole for one twice convicted of sexual assault in the first degree. In holding the sentence not to be cruel and unusual, we observed that the Legislature is not required to select the least severe penalty possible, so long as...