State v. Barrow ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. BARROW
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
KENDELL L. BARROW, APPELLANT.
Filed January 8, 2019. No. A-17-1010.
Appeal from the District Court for Douglas County: THOMAS A. OTEPKA, Judge. Affirmed
in part, and in part vacated and remanded with directions.
Thomas C. Riley, Douglas County Public Defender, Yvonne Sosa, and, on briefs,
Jacquelyn R. Morrison for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.
MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Kendell L. Barrow appeals his convictions of possession of a firearm by a prohibited person
and second offense carrying a concealed weapon. He assigns that the court erred by not requiring
the State to produce evidence required by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963); that the court erred by denying his motion for a mistrial on the basis of
unfairly prejudicial testimony placed before the jury; and that the court imposed an excessive
sentence on his conviction for possession of a firearm by a prohibited person. We affirm his
convictions, but find plain error in the sentence imposed on the conviction for second offense
carrying a concealed weapon. We therefore vacate that sentence only and remand the cause with
directions.
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STATEMENT OF FACTS
At 2:10 p.m. on the afternoon of January 7, 2017, Omaha police officer Shundale Bynum
began his shift which was to last until 10:40 p.m. At the beginning of his shift, he inspected his
cruiser pursuant to standard operating procedure (SOP), and did not find anything located in the
backseat area of his cruiser. A little over an hour later, Officer Bynum and fellow officer, Phillip
Payton, were dispatched to a domestic disturbance. After the victim allowed the officers to enter
the home which had been identified as the location of the domestic disturbance, they located
Barrow. The officers performed a pat-down search of Barrow which did not reveal any weapons.
After questioning, Barrow was arrested and searched incident to arrest, including a search of his
waistline and pockets. This search also failed to reveal any weapons.
Officer Bynum transported Barrow to the Douglas County Correctional Center and booked
him for two misdemeanors. The entire incident, from approaching the house to entering the
Douglas County Correctional Center booking area, was recorded on Officer Bynum’s body
camera. The officers did not locate a weapon until that night when Officer Bynum performed a
post-shift inspection and found an unregistered gun on the back floorboard of his cruiser.
Following that discovery, Bynum put on gloves, retrieved the gun, placed it into a property
envelope, which he then sealed. Bynum transported the sealed envelope containing the gun to the
“crime lab” for forensic analysis including fingerprint and DNA processing. Barrow was identified
as the major DNA contributor on the gun and the probability of an unrelated individual matching
the major DNA was approximately 1 in 34.8 nonillion. As a result of the discovery of the gun,
DNA swabbing, and DNA testing results, Barrow was charged with count 1, possession of a
weapon by a prohibited person and count 2, carrying a concealed weapon.
Prior to the scheduled jury trial in this case, Barrow filed a motion for discovery. During a
hearing thereon, defense counsel stated that he had previously requested any emails in possession
of the county attorney’s office regarding Barrow, “specifically any and all emails from the Omaha
Police Department regarding their prior contacts with Mr. Barrow.” Defense counsel further stated
that the prosecution had informed defense counsel that it was in possession of an email where at
least one member of the Omaha Police Department discussed prior contacts and concerns with
Barrow. Defense counsel also noted receiving a portion, but not all portions, of the email. Defense
counsel requested that the State be ordered to comply with the request and turn over remaining
portions of the subject email. Defense counsel argued “I believe that it said . . . something to the
extent of how many times are we going to have to catch [Barrow] or find [him] with a gun before
he’s put away?” The email chain requested by defense counsel, which this court received under
seal, was from September 2011. None of the officers in the email chain testified at trial.
At the June 2017 trial, Bynum testified that, per SOP, he inspected his cruiser at the
beginning of his shift and did not see a handgun. He testified that there are no areas that a handgun
could be hidden in the backseat and that the floorboard of the cruiser curves up in a way that
prevents items from sliding back and forth between the front and back of the cruiser. Bynum then
testified regarding locating the gun and booking it into property and the State questioned him on
how he associated the gun with Barrow:
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Q After you had booked these items into property, did you . . . take any actions
based upon what you found in the back seat of your cruiser?
A After I had everything booked in that night, I reviewed the call details and also
attempted to make contact with the original caller.
Q In regards to original caller for what incident?
A The possession of the handgun.
Q When you say “original caller,” for one of the dispatches you had received that
particular shift?
A Yes, for . . . the original caller who called in the disturbance.
Q Okay. And why are you picking out or why did you find it significant that you
had to focus on that particular call?
A Because that was the only call where the caller mentioned a handgun.
MR. SLADEK: Objection, Your Honor. I’ll move to strike.
MR. MASTELLER: And I would agree to strike that, sir. Maybe I’ll ask a different
question.
THE COURT: Disregard the last answer, it’s stricken.
BY MR. MASTELLER:
Q Now, was that the only call in which as a result of the call someone was placed
in the back seat of your cruiser?
A Yes.
Barrow’s counsel requested a sidebar, suggested a mistrial might be appropriate, but did
not specifically request a mistrial. The court responded that “I think that at least you’ve made your
record and I told [the jury] to disregard it. Thank you.” The prosecutor continued his examination
of Bynum. After a few more questions, the prosecutor concluded his questioning of Bynum, the
jury was released on a recess, and defense counsel requested a mistrial:
MR. SLADEK: Just briefly, Judge. Thank you for your patience. Before we broke,
there was some testimony elicited from Officer Bynum in which he indicated that the
original call which brought him into contact with Mr. Barrow, the defendant, included a
statement about there being a gun involved. Obviously, I realize that the Court, based on
my objection, struck that testimony and ordered that the jury disregard the testimony. In
an abundance of caution, I’ll ask the Court to consider a motion for a mistrial. On the
motion for a mistrial, I don’t believe that there was any malicious intent involved on Mr.
Masteller’s part or Officer Bynum’s part, but because of the open-ended question, I think
that it could elicit that kind of answer. And that will be my basis for the motion for mistrial,
Judge.
THE COURT: Thank you. Did the State wish to be heard?
MR. MASTELLER: Your Honor, I would ask you to overrule that motion. The
reference to a firearm was very brief. There’s no indication that the firearm referenced in
the initial call was actually this firearm which is the subject of this prosecution.
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I believe Your Honor appropriately struck the testimony and also appropriately
instructed the jury to disregard that testimony, which I believe would cure any type of
prejudice from the jury having heard that brief reference to a firearm.
THE COURT: Thank you. The motion is overruled.
The jury found Barrow guilty of the charged offenses.
After an enhancement hearing, the court found that Barrow had previously been convicted
of carrying a concealed weapon. At the sentencing hearing, the court stated that, in determining
the appropriate sentences for Barrow, he considered factors including the defendant’s age,
mentality, education, experience, social and cultural background, his past criminal record, the
motivation for the offense and the nature of the offense, and the presence or absence of violence.
The court then sentenced Barrow to 10 to 15 years’ imprisonment for count 1, (possession of a
firearm by a prohibited person) and 1 to 2 years’ imprisonment for count 2 (second offense carrying
a concealed weapon). The court ordered count 2 to be served concurrently to count 1 and granted
Barrow 248 days credit for time served. The State immediately informed the court: “Your Honor,
I don’t believe you can do an indeterminate sentence on Count 2. It’s a Class IV.” The court then
“corrected” Barrow’s sentence on count 2 to 1 year’s imprisonment to be served concurrently to
count 1. Barrow timely appeals to this court and is represented by the same counsel that represented
him at trial and sentencing.
ASSIGNMENTS OF ERROR
Barrow assigns that the district court (1) erred in denying his discovery motion requesting
the State produce the 2011 email chain between the county attorney and the Omaha Police
Department, (2) abused its discretion by denying his motion for a mistrial following Officer
Bynum’s testimony governing a call mentioning a handgun, and (3) abused its discretion by
imposing an excessive sentence for his conviction of possession of a firearm by a prohibited
person.
STANDARD OF REVIEW
Discovery in a criminal case is generally controlled by either a statute or court rule;
therefore, unless granted as a matter of right under the Constitution or other law, discovery is
within the discretion of a trial court, whose ruling will be upheld on appeal unless the trial court
has abused its discretion. State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014); State v.
McMillion, 23 Neb. App. 687, 875 N.W.2d 877 (2016).
Materiality under Brady is a question of law subject to de novo review. United States v.
Straker, 800 F.3d 570 (D.C. Cir. 2015); United States v. Oruche, 484 F.3d 590 (D.C. Cir. 2007).
Whether to grant a motion for mistrial is within the trial court’s discretion, and this court
will not disturb its ruling unless the court abused its discretion. State v. Lester, 295 Neb. 878, 898
N.W.2d 299 (2017).
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Garza, 295 Neb. 434, 888 N.W.2d 526 (2016).
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ANALYSIS
BRADY VIOLATION
Barrow first argues that the trial court erred in overruling his motion requesting that the
State produce a 2011 email chain between the county attorney and officers of the Omaha Police
Department. In support of this assignment, Barrow argues that the suppression of this email by the
prosecution denied him due process because the email contained evidence favorable to him which
was material to either his guilt or punishment.
This assignment of error is commonly referred to as a “Brady” violation in reference to
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). As our Supreme Court
noted in State v. Castor, 257 Neb. 572, 584, 599 N.W.2d 201, 211 (1999):
The starting point in our analysis is Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963), in which the U.S. Supreme Court held that “the suppression by
the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” “[F]avorable evidence is material, and constitutional
error results from its suppression by the government, ‘if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different.’” Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S. Ct. 1555, 131 L. Ed.
2d 490 (1995), quoting United States v. Bagley, 473 U.S. 667, 473 U.S. 667, 105 S. Ct.
3375, 87 L. Ed. 2d 481 (1985).
Specifically, Barrow argues that, although he has not seen the full email, based upon
representations of the State and a copy of a portion of the email supplied by the State, he believes
the email contains communications between the county attorney and members of the Omaha Police
Department indicating their frustration with Barrow not being previously “put away” for prior gun
possession and wanting him “off the streets.” Brief for appellant at 9-10.
Barrow further argues the email could have been used to show institutional bias by the
Omaha Police Department against Barrow and provided a motive for police to collude and commit
an act of misconduct in connection with the current charges. Although Barrow does not state the
specific act of misconduct, he apparently is alleging the email provides sufficient basis to infer that
certain members of the Omaha Police Department, based upon their frustration with Barrow, were
willing to fabricate where the weapon was found and how Barrow’s DNA got on the weapon.
As the Supreme Court held in State v. Clifton, 296 Neb. 135, 162, 892 N.W.2d 112, 134
(2017):
As refined by subsequent case law, there are three components to a Brady violation: (1)
The evidence at issue must be favorable to the accused, either because it is exculpatory or
because it is impeaching; (2) that evidence must have been suppressed by the State, either
willfully or inadvertently; and (3) prejudice must have ensued such that there is a
reasonable probability that the suppressed evidence would have produced a different
verdict; i.e., the suppressed evidence must be “‘material either to guilt or to punishment.’”
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(quoting Brady v. Maryland[, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)]. Accord
United States v. Bagley[, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)].
The United States Supreme Court has further held:
“[E]vidence is ‘material’ within the meaning of Brady when there is a reasonable
probability that, had the evidence been disclosed, the result of the proceeding would have
been different.” “A ‘reasonable probability’ of a different result” is one in which the
suppressed evidence “‘undermines confidence in the outcome of the trial.’” . . . We must
examine the trial record, “evaluat[e]” the withheld evidence “in the context of the entire
record,” and determine in light of that examination whether “there is a reasonable
probability that, had the evidence been disclosed, the result of the proceeding would have
been different.”
Turner v. United States, ___ U.S. ___, 137 S. Ct. 1885, 1893, 198 L. Ed. 2d 443 (2017) (internal
citations omitted).
Barrow’s argument here is that the State’s case was premised upon the credibility of Officer
Bynum who testified that he found Barrow’s gun in his cruiser later in the day after he had
transported Barrow and left him at the Douglas County Correctional Facility. Barrow further
argues that Officer Bynum failed to discover the gun after performing a pat down search and search
incident to arrest and that the State only linked the gun to Barrow based upon Officer Bynum’s
testimony and evidence that Barrow’s DNA was found on the gun. He argues that the evidence
suggests collusion on the part of the Omaha Police Department relating to this evidence and that
the 2011 email, allegedly documenting another officer’s prior frustration with the prosecutor’s
office for failing to adequately prosecute Barrow on a previous gun charge, suggests collusion here
in order to get Barrow “off the streets.” Brief for appellant at 10. Barrow contends that “[a]llowing
[him] to use the email to impeach the officers’ credibility would have not only weakened the
State’s case, but also bolstered [his] argument that the police engaged in misconduct.” Brief for
appellant at 9.
In order to constitute a Brady violation, the State’s failure to produce the email must be
sufficient to undermine the confidence in the outcome of this trial. Stated differently, based upon
this record as a whole, we would need to find that if Officer Bynum was impeached at trial with
this email, there is a reasonable probability that the result of the proceeding would have been
different. We have carefully reviewed the entire record, including the subject email which was
filed under seal and conclude that no Brady evidence was suppressed. To suggest that, because an
officer, many years ago, exhibited frustration with what that officer felt was the State’s failure to
adequately prosecute Barrow, resulted in collusion among current members of the Omaha Police
Department to obtain a conviction of Barrow is highly speculative. There was no other evidence
in this entire record which would suggest of such a conspiracy. To quote the United States Supreme
Court, “[c]onsidering the withheld evidence ‘in the context of the entire record,’ . . . we conclude
that it is too little, too weak, or too distant from the main evidentiary points to meet Brady’s
standards.” Turner v. United States, 137 S. Ct. at 1894.
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Perhaps acknowledging the remoteness of the specific evidence, Barrow argues:
Evidence disclosed to the defense does not have to be impeachment evidence in and of
itself; it is discoverable if there is a strong indication that such information will play an
important role in uncovering admissible evidence, aiding preparation of witnesses,
corroborating testimony, or assisting impeachment or rebuttal.
Brief for appellant at 10. However, Barrow improperly conflates the discovery standard under
Neb. Rev. Stat. § 29-1912 (Reissue 2016) and the production standard under Brady. As the
Supreme Court stated in State v. Harris, 296 Neb. 317, 335, 893 N.W.2d 440, 454 (2017):
Nebraska’s primary discovery statute [§ 29-1912] in criminal cases, whether a prosecutor’s
failure to disclose evidence results in prejudice depends on whether the information sought
is material to the preparation of the defense, meaning that there is a strong indication that
such information will play an important role in uncovering admissible evidence, aiding
preparation of witnesses, corroborating testimony, or assisting impeachment or rebuttal.
Moreover, as the Nebraska Supreme Court held in State v. Jackson, 275 Neb. 434, 450-51,
747 N.W.2d 418, 434-35 (2008):
In State v. Castor, [257 Neb. 572, 599 N.W.2d 201 (1999),] we held that Nebraska’s
disclosure statute [codified at § 29-1912] is more exacting than federal due process
requirements. In particular, we held that “whether a prosecutor’s failure to disclose such
evidence results in prejudice to the accused ‘depends on whether the information sought is
material to the preparation of the defense, meaning that there is a strong indication that
such information will play an important role in uncovering admissible evidence, aiding
preparation of witnesses, corroborating testimony, or assisting impeachment or rebuttal.’”
The standard under § 29-1912 for exculpatory evidence is slightly different from the due
process standard announced in United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed.
2d 481 (1985). Both standards require a showing that the nondisclosure prejudiced the defendant
by preventing him or her from acquiring material evidence. Nebraska law, however, defines
materiality more broadly to apply to evidence which strongly indicates it would play an important
role in preparing a defense. Brady did not focus on the defendant’s ability to prepare for trial,
because Brady was not a rule for discovery.
In his motion for discovery, Barrow originally alleged the State was required to produce
the subject email pursuant to § 29-1912(f); U.S. v. Bagley, supra; and Brady v. Maryland, supra.However, during the hearing on the motion, Barrow’s trial counsel withdrew the motion as it
pertained to the discovery rules and pursued the motion solely on the basis of the email being
discoverable under Bagley and Brady. Having failed to raise the issue before the trial court, Barrow
cannot raise the issue for the first time on appeal. See State v. Ortega, 290 Neb. 172, 859 N.W.2d
305 (2015) (appellate courts do not generally consider arguments and theories raised for first time
on appeal). See, also, State v. Heng, 25 Neb. App. 317, 905 N.W.2d 279 (2017) (when issue is
raised for first time in appellate court, it will be disregarded inasmuch as lower court cannot
commit error in resolving issue never presented and submitted to it for disposition). We hold that
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the district court did not err in overruling Barrow’s motion for discovery requesting the State
produce the email contained in exhibit 1 under the rules announced by the United States Supreme
Court in Brady and Bagley. We do not reach, and express no opinion, as to whether there was a
violation of Nebraska’s discovery statute as the issue was not preserved for appeal.
MOTION FOR MISTRIAL
Barrow contends that the district court abused its discretion by denying his motion for a
mistrial after Officer Bynum responded to an open-ended question by stating that the domestic
disturbance call was the “only call where the caller mentioned a handgun.” Barrow immediately
objected and moved to strike the testimony. The State agreed to strike the answer and the court
specifically instructed the jury to disregard Officer Bynum’s response. Officer Bynum then
testified that was the only call which resulted in someone being placed in the back seat of his
cruiser. Defense counsel immediately requested a sidebar in which he stated that it was “pretty
significant testimony that Officer Bynum just elicited to the jury that is not admissible. I don’t
know if it’s grounds for a mistrial that the jury has heard that now, but I do think it’s extremely
prejudicial and I just want that noted for the record.” The court stated “I think that at least you’ve
made your record and I told [the jury] to disregard it.” At the conclusion of Officer Bynum’s
testimony, defense counsel requested a mistrial, which the trial court denied.
A motion for mistrial is properly granted in a criminal case where an event occurs during
the course of trial that is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial. State v. Foster, 300 Neb. 883,
916 N.W.2d 562 (2018), disapproved on other grounds, State v. Allen, 301 Neb. 560, 919 N.W.2d
500 (2018). A defendant must prove that an alleged error actually prejudiced him or her, rather
than creating only the possibility of prejudice, in order for a motion for mistrial to be properly
granted. Id. Error cannot ordinarily be predicated on the failure to grant a mistrial if an objection
or motion to strike the improper material is sustained and the jury is admonished to disregard such
material. State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017).
Barrow has not sufficiently demonstrated that Officer Bynum’s response followed by the
State’s acquiescence and the court’s admonishment improperly influenced the outcome of this
case. In short, Barrow was charged with possession of a deadly weapon and carrying a concealed
weapon. The evidence demonstrated that Barrow’s weapon was found in Officer Bynum’s cruiser
following his transport to Omaha Corrections and that Barrow’s DNA was found on the gun.
Barrow was the only person transported in Bynum’s cruiser that day and Bynum had inspected his
vehicle prior to transporting Barrow. During transport, Barrow had dislodged his seatbelt and,
when Bynum arrived at corrections and removed Barrow, he noticed Barrow had to pull his pants
back up. The evidence of Barrow’s guilt was compelling when weighed against the possibility that
the jury did not disregard Officer Bynum’s response as instructed by the trial court. See State v.
Daly, 278 Neb. 903, 775 N.W.2d 47 (2009) (it is presumed that jury followed instructions given
in arriving at its verdict). There is no showing of actual prejudice and the court did not err in
denying Barrow’s motion for mistrial.
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EXCESSIVE SENTENCE
Barrow contends that the sentence imposed on his conviction for possession of a firearm
by a prohibited person was excessive.
First offense possession of a firearm by a prohibited person is a Class ID felony punishable
by a mandatory minimum of 3 years’ imprisonment and up to 50 years’ imprisonment. See, Neb.
Rev. Stat. § 28-105 (Reissue 2016); Neb. Rev. Stat. § 28-1206 (Supp. 2017). Barrow’s sentence
of 10 to 15 years’ imprisonment is well within the statutory sentencing range.
Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable legal principles in
determining the sentence to be imposed. State v. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018).
When imposing a sentence, the sentencing court is to consider the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense and (8) the amount of violence involved in the commission of the crime. Id.The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing
judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances
surrounding the defendant’s life. State v. Thieszen, 300 Neb. 112, 912 N.W.2d 696 (2018).
During Barrow’s sentencing hearing, the Court recounted that it had reviewed the probation
file, police reports, and PSR, and that, in attempting to determining the appropriate sentence for
Barrow, the court had considered Barrow’s age, mentality, education, experience, social and
cultural background, past criminal record, motivation for the offense, nature of the offense, and
the presence or absence of violence. The district court noted that Barrow had been sentenced to
prison once and to jail 16 times and had an “extensive history of arrests for weapons possessions,
domestic assaults, criminal mischief, driving under suspension, marijuana possession, leaving the
scene of property damage accidents.” The court further noted:
In the probation officer’s opinion, the defendant is a high risk for rearrest, and this is based
on the age at which he first became involved in the criminal court system and the fact that
he’s been arrested for felony offenses in the past, has a history of documented violence,
and a well[-]documented history of possession of firearms.
He’s committed domestic assault several times against women. He’s possessed
firearms illegally on many occasions and reports a past diagnosis of post-traumatic stress
disorder. Limited history of employment.
During the PSI, he continued to deny he possessed the firearm. He’s demonstrated,
according to probation, now with this multiple arrests for carrying concealed weapons that
he is a habitual carrier of firearms. . . .
Barrow’s sentence for conviction of possession of a firearm by a prohibited person, first
offense, was within the statutory sentencing ranges. Further, after reviewing the record, we find
that the district court appropriately considered all required factors and the court did not abuse its
discretion in imposing this sentence.
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PLAIN ERROR
We now turn to an issue of plain error raised by the State regarding Barrow’s sentence for
second offense carrying a concealed weapon which is a Class IV felony. Plain error may be found
on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record,
prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process. State v. Kidder, 299 Neb. 232, 908
N.W.2d 1 (2018).
A Class IV felony is punishable by 0 to 2 years’ imprisonment, a $10,000 fine, or both. See
§ 28-105. Postrelease supervision--a minimum of 9 months and a maximum of 12 months--is also
required if imprisonment is imposed for a Class IV felony. Id. Neb. Rev. Stat. § 29-2204.02(1)(a)
(Reissue 2016) requires a determinate sentence of imprisonment for a Class IV felony, unless
probation is otherwise required pursuant to § 29-2204.02(2). However, probation was not required
here because Barrow was sentenced to imprisonment for another Class ID felony. See
§ 29-2204.02(2)(a). Additionally, § 29-2204.02(4) requires an indeterminate sentence for any
sentence of imprisonment for a Class IV felony for an offense committed on or after August 30,
2015, imposed consecutively or concurrently with a sentence of imprisonment for a Class I, IA,
IB, IC, ID, II or IIA felony. No postrelease supervision was required for this Class IV felony since
Barrow was subject to a separate sentence for a Class ID felony. See § 28-105(6).
Here, the court initially imposed a sentence of 1 to 2 years’ imprisonment for Barrow’s
conviction of second offense carrying a concealed weapon. However, at the request of the State,
mistakenly believing a determinate sentence was required, the court changed the sentence to 1
year’s imprisonment. Thus, the initial sentence of 1 to 2 years’ imprisonment which an
indeterminate sentence was validly imposed pursuant to § 29-2204.02(4), whereas the “corrected”
sentence of 1 year’s imprisonment was actually an invalid sentence pursuant to that same statute.
Nebraska’s appellate courts “have consistently applied the rule that a sentence validly
imposed takes effect from the time it is pronounced . . . and . . . any subsequent sentence fixing a
different term is a nullity.” State v. Kidder, 299 Neb. at 247, 908 N.W.2d at 11. “We have applied
this rule to attempts to modify a valid pronouncement during the sentencing hearing and to
attempts to modify a valid sentence that has been put into execution.” Id. Thus, any attempt to
modify a sentence validly imposed is of no effect and the original sentence remains in force;
although it is possible, in limited circumstances, to correct an inadvertent mispronouncement of a
valid sentence before the defendant has left the courtroom. See Id.
Here, although the court’s attempted modification of Barrow’s sentences occurred before
Barrow had left the courtroom, the district court did not mispronounce its initial sentence. It was
only after the State’s request, which was made under a mistaken belief that a determinate sentence
was required, that the court “corrected” Barrow’s sentence to 1 year’s imprisonment. Because the
sentence originally pronounced was valid, it took effect as soon as it was pronounced and any
attempt thereafter to modify it was plainly erroneous and of no legal effect. See State v. Kidder,
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We thus vacate that portion of the sentencing order imposing a term of 1 year’s
imprisonment on count 2 and remand the cause to the district court with directions to reinstate the
valid term originally pronounced on that count.
CONCLUSION
For the foregoing reasons, we reject Barrow’s assignments of error and affirm his
convictions. Further, the court did not abuse its discretion in sentencing Barrow for possession of
a firearm by a prohibited person; however, we find plain error in the court’s modifying the term
of the sentence validly imposed on count 2 and therefore vacate that portion of the sentencing order
and remand the cause to the district court with directions to reinstate the term of 1 to 2 years’
imprisonment originally pronounced. In all other respects, the judgment of the district court is
affirmed.
AFFIRMED IN PART, AND IN PART VACATED
AND REMANDED WITH DIRECTIONS.
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