State v. Shaull , 301 Neb. 82 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/19/2018 09:12 AM CDT
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. SHAULL
Cite as 301 Neb. 82State of Nebraska, appellee, v.
Steven D. Shaull, appellant.
___ N.W.2d ___
Filed September 14, 2018. No. S-17-943.
1. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged to be excessive, an appellate court must deter-
mine whether the sentencing court abused its discretion in considering
and applying the relevant factors as well as any applicable legal prin-
ciples in determining the sentence to be imposed.
2. Judgments: Appeal and Error. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
Appeal from the District Court for Lancaster County: Lori
A. M aret, Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, John
C. Jorgensen, and Sarah L. Burghaus, Senior Certified Law
Student, for appellant.
Douglas J. Peterson, Attorney General, and Joe Meyer for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
Steven D. Shaull was convicted of theft by deception and
sentenced to 2 years’ imprisonment and 12 months’ postrelease
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Nebraska Supreme Court A dvance Sheets
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STATE v. SHAULL
Cite as 301 Neb. 82supervision. He appeals from the conditions set by the district
court. We affirm.
FACTUAL BACKGROUND
On June 29, 2017, Shaull was charged by amended infor-
mation with theft by deception, a Class IV felony pursuant
to Neb. Rev. Stat. § 28-518 (Reissue 2016), in connection
with the fraudulent sale of a vehicle engine through an online
auction service. Shaull, a resident of Anaheim, California,
received $11,500 for the engine from a resident of Lancaster
County, Nebraska, but never delivered the engine. An investi-
gation showed that Shaull sold, but failed to deliver, the same
engine to individuals in multiple states.
Shaull was extradited to Nebraska and eventually pled
no contest to theft by deception. As noted, Shaull was sen-
tenced to 2 years’ imprisonment and 1 year of postrelease
supervision. That supervision was subject to 20 conditions,
which are set forth in the district court’s order of postrelease
supervision.
At the sentencing hearing, Shaull’s counsel, citing to State
v. Phillips,1 which was at the time pending with this court,
objected to the terms of postrelease supervision. Counsel
specifically argued that because Shaull was to be extradited
to Kentucky to face charges there, the conditions specific
to remaining in Nebraska were not feasible. Counsel also
argued that the imposition of various fees was error, because
Shaull was indigent. Counsel’s objections were noted and
overruled.
Shaull appeals.
ASSIGNMENT OF ERROR
Shaull assigns that the district court abused its discre-
tion in failing to impose terms and conditions of postrelease
supervision that (1) could be served by Shaull while he was
1
State v. Phillips, 297 Neb. 469, 900 N.W.2d 522 (2017).
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STATE v. SHAULL
Cite as 301 Neb. 82incarcerated in another state and (2) were reasonably related
to his rehabilitation.
STANDARD OF REVIEW
[1,2] Where a sentence imposed within the statutory limits
is alleged to be excessive, an appellate court must determine
whether the sentencing court abused its discretion in consider-
ing and applying the relevant factors as well as any applicable
legal principles in determining the sentence to be imposed.2
An abuse of discretion occurs when a trial court’s decision
is based upon reasons that are untenable or unreasonable or
if its action is clearly against justice or conscience, reason,
and evidence.3
ANALYSIS
On appeal, Shaull assigns that the district court erred by
imposing terms and conditions for his postrelease supervision
that were not related to his rehabilitation and that could not
be met, because he would be serving that term of postrelease
supervision in the custody of another state’s criminal jus-
tice system.
Postrelease supervision is a relatively new concept in
Nebraska. Both Neb. Rev. Stat. §§ 28-105 and 29-2204.02
(Supp. 2017) authorize the imposition of postrelease super-
vision as part of a determinate sentence. Section 28-105(5)
provides that “[a]ll sentences of post-release supervision shall
be served under the jurisdiction of the Office of Probation
Administration and shall be subject to conditions imposed pur-
suant to section 29-2262 and subject to sanctions authorized
pursuant to section 29-2266.02.”
Neb. Ct. R. § 6-1904(A) (rev. 2016) provides the process to
undertake when imposing a sentence of postrelease supervi-
sion. According to that rule:
2
Id.
3
Id.
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STATE v. SHAULL
Cite as 301 Neb. 82In cases requiring a determinate sentence pursuant to
Neb. Rev. Stat. § 29-2204.02, the court shall, at the time
a sentence is pronounced, impose a term of incarceration
and a term of post-release supervision pursuant to Neb.
Rev. Stat. § 29-2204.02(1), and shall enter a separate
post-release supervision order that includes conditions
pursuant to Neb. Rev. Stat. § 29-2262. The court shall
specify, on the record, that conditions of the order of
post-release supervision may be modified or eliminated
pursuant to Neb. Rev. Stat. § 29-2263(3).
Our case law generally provides that a conviction and sen-
tence in a criminal case is a final, appealable order.4 And we
held in State v. Phillips that a term of postrelease supervision
ordered alongside a determinate sentence is final.5
Section 6-1904(A) requires the conditions to be imposed
upon the defendant at the time of sentence. Subsections (B) and
(C) of § 6-1904 provide that prior to an individualized release
date (45 days for inmates incarcerated with the Department of
Correctional Services and 30 days if in the county jail), the
“court shall receive a post-release supervision plan” and “shall
consider modification to the post-release supervision order,
upon application and recommendation, based upon the post-
release supervision plan from the probation office.” In the case
of inmates within the Department of Correctional Services,
the “plan shall be collaboratively prepared by the Office of
Probation Administration and the Department of Correctional
Services to provide information regarding performance and
programming while incarcerated, an updated risk/needs assess-
ment, along with a community needs and service assessment.”
And subsection (D) of § 6-1904 provides that “the court shall,
if applicable, modify the post-release supervision order” within
4
See, generally, State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
5
State v. Phillips, supra note 1.
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STATE v. SHAULL
Cite as 301 Neb. 8230 days (Department of Correctional Services inmates) or 15
days (county jail).
The imposition of conditions at the time of sentencing is
done to guide a defendant to needed services during incar-
ceration. And our rule provides that conditions may need to be
modified upon a defendant’s “performance and programming
while incarcerated.”6
On appeal, Shaull assigns that the district court erred in
imposing conditions to his postrelease supervision (1) that he
cannot comply with because he will be incarcerated out of
state and (2) that do not bear a reasonable relationship to the
purposes of postrelease supervision—namely leading a law-
abiding life.
We do not address Shaull’s second argument, because a
review of the record reveals that no objection was made to any
of the conditions of employment on the basis that they did not
bear a reasonable relationship to the purposes of his supervi-
sion. As such, Shaull has waived such objections.
We turn then to Shaull’s first argument. Shaull argues that he
will be unable to comply with the conditions of his postrelease
supervision, because he will be extradited to another state once
he finishes serving his term of imprisonment in Nebraska.
While counsel argued that Shaull would be extradited, that
action had not taken place at the time of sentencing. Nor was
there any evidence presented that such extradition was a cer-
tainty. In the event such extradition takes place, we observe
that the conditions of postrelease supervision are modifiable
upon motion of the defendant or on the court’s own motion.7
Thus, if Shaull were to be extradited, he could seek a modifi-
cation to those terms with which he feels he would be unable
to comply.
6
§ 6-1904(B).
7
Neb. Rev. Stat. § 29-2263(3) (Supp. 2017); § 6-1904.
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STATE v. SHAULL
Cite as 301 Neb. 82We review the imposition of a sentence for an abuse of
discretion. The sentence and conditions imposed are within
the statutory limits.8 We have reviewed the presentence report
and further conclude that the sentence and conditions are not
otherwise an abuse of discretion.9 Shaull’s arguments on appeal
are without merit.
CONCLUSION
The sentence of the district court is affirmed.
A ffirmed.
8
§ 28-105.
9
See State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).