State v. Stone , 298 Neb. 53 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/17/2017 09:14 AM CST
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    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    STATE v. STONE
    Cite as 
    298 Neb. 53
    State of Nebraska, appellee, v.
    H arold L. Stone, appellant.
    ___ N.W.2d ___
    Filed October 13, 2017.   No. S-16-941.
    1.	 Constitutional Law: Statutes: Appeal and Error. The constitutionality
    of a statute presents a question of law, which an appellate court indepen-
    dently reviews.
    2.	 Sentences: Appeal and Error. An appellate court will not disturb a sen-
    tence imposed within the statutory limits absent an abuse of discretion
    by the trial court.
    3.	 Constitutional Law: Statutes: Pleas. As-applied challenges to the con-
    stitutionality of a criminal statute are preserved by a defendant’s plea of
    not guilty.
    4.	 Constitutional Law: Statutes: Waiver. The proper procedure for rais-
    ing a facial constitutional challenge to a criminal statute is to file a
    motion to quash, and all defects not raised in a motion to quash are
    taken as waived by a defendant pleading the general issue.
    5.	 Constitutional Law: Statutes. Regardless of how the parties label a
    constitutional challenge, a court will classify the challenge based upon
    the nature of the alleged constitutional defect.
    6.	 ____: ____. Generally, a facial challenge seeks to void the statute in all
    contexts for all parties. In contrast, an as-applied challenge often con-
    cedes the statute is constitutional in some of its applications, but con-
    tends it is unconstitutional as applied to the particular facts of the case.
    7.	 ____: ____. An as-applied challenge does not seek to void the statute
    for all purposes, but seeks only to prevent the statute’s application to the
    facts before the court.
    8.	 Sentences. Generally, it is within a trial court’s discretion to direct that
    sentences imposed for separate crimes be served either concurrently
    or consecutively. This is so, even when offenses carry a mandatory
    minimum sentence, unless the statute requires that consecutive sentences
    be imposed.
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    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    STATE v. STONE
    Cite as 
    298 Neb. 53
    9.	 Sentences: Appeal and Error. 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.
    10.	 Sentences. When imposing a sentence, the sentencing court is to con-
    sider the defendant’s (1) age, (2) mentality, (3) education and experi-
    ence, (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.
    Appeal from the District Court for Thayer County: Vicky L.
    Johnson, Judge. Affirmed.
    Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
    L.L.O., for appellant.
    Douglas J. Peterson, Attorney General, and Siobhan E.
    Duffy for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Stacy, J.
    In this direct appeal of his criminal convictions and sen-
    tences, Harold L. Stone seeks to challenge the constitutionality
    of the mandatory minimum sentencing scheme for first degree
    sexual assault of a child.1 He also challenges his sentences as
    excessive. We conclude Stone did not preserve his constitu-
    tional challenge for appellate review, and we find no merit to
    his excessive-sentence claim. Accordingly, we affirm the judg-
    ment and sentences of the district court.
    1
    See 
    Neb. Rev. Stat. § 28-319.01
     (Reissue 2016).
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    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    STATE v. STONE
    Cite as 
    298 Neb. 53
    FACTS
    Conviction
    In 2016, Stone was charged with five counts of first degree
    sexual assault of a child,2 one count of third degree sex-
    ual assault of a child,3 and one count of child abuse.4 The
    amended information alleged Stone sexually penetrated H.W.
    on five separate occasions in 2014 and 2015, at a time when
    H.W. was under the age of 16 and Stone was over the age of
    25. Stone entered pleas of not guilty, and the matter proceeded
    to trial.
    The facts underlying Stone’s charges are not directly rel-
    evant to his assignments of error, so we do not recount them
    in detail. Generally, evidence at trial showed that Stone, a
    58-year-old man, befriended, groomed, and sexually assaulted
    H.W., a 15-year-old child with behavioral disabilities.
    The jury returned a verdict finding Stone guilty of four
    counts of first degree sexual assault of a child and one count
    of child abuse. Each sexual assault conviction was a Class IB
    felony carrying a mandatory minimum prison sentence of 15
    years5 and a maximum sentence of life imprisonment.6
    Sentencing
    At the sentencing hearing, Stone argued the mandatory
    minimum sentencing scheme of § 28-319.01 violated the Equal
    Protection Clauses of the U.S. and Nebraska Constitutions
    by treating him more harshly than younger offenders. Stone
    asserted that if he had been 19 to 24 years old, rather than
    58, at the time of his crimes, the sexual assaults would have
    been classified as Class II felonies with a 1-year minimum
    2
    § 28-319.01(1)(b).
    3
    
    Neb. Rev. Stat. § 28-320.01
    (1) (Reissue 2016).
    4
    
    Neb. Rev. Stat. § 28-707
    (1)(a) and (d) (Cum. Supp. 2014).
    5
    See § 28-319.01(1)(b) and (2).
    6
    See 
    Neb. Rev. Stat. § 28-105
    (1) (Cum. Supp. 2014).
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    STATE v. STONE
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    298 Neb. 53
    term,7 instead of Class IB felonies with a 15-year mandatory
    minimum term.8 Stone contended there was no rational basis
    to treat him more harshly based on his age, and he asked the
    court to sentence him “as if the offense were a Class II felony.”
    Stone ultimately conceded that “[a]ssuming the validity of
    the sentencing scheme, the Court has no legal option but to
    impose a sentence of not less than a mandatory 15-year sen-
    tence on [the sexual assault convictions] and . . . then has to
    consider whether any sentences imposed should be concurrent
    or consecutive.” Stone asked the court to run his sentences
    concurrently rather than consecutively, suggesting the manda-
    tory minimum was already “harsher than it should be legally
    or constitutionally.”
    The trial court rejected Stone’s constitutional arguments
    and, on each of the four sexual assault convictions, sentenced
    Stone to imprisonment for a mandatory minimum term of 15
    years and a maximum term of 20 years. On the child abuse
    conviction, Stone was sentenced to a term of 4 to 5 years’
    imprisonment. The court ordered two of the sexual assault sen-
    tences to be served consecutively and ordered the remaining
    sentences to be served concurrently.
    Stone timely appealed, and he filed a notice of constitutional
    question under Neb. Ct. R. App. P. § 2-109(E) (rev. 2014),
    advising that “this appeal presents a question as to the consti-
    tutionality of . . . §28-319.01(1)(b) [and] (2), as applied.” We
    moved the case to our docket on our own motion.9
    ASSIGNMENTS OF ERROR
    Stone assigns (1) that the mandatory minimum term of
    15 years’ imprisonment under § 28-319.01(2), based upon
    age, has no rational basis and violates the Equal Protection
    7
    See 
    Neb. Rev. Stat. § 28-319
     (Reissue 2016) and § 28-105.
    8
    § 28-319.01(2).
    9
    
    Neb. Rev. Stat. § 24-1106
    (3) (Reissue 2016).
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    STATE v. STONE
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    Clauses of the U.S. and Nebraska Constitutions and (2) that
    the imposition of consecutive mandatory minimum sentences
    was unreasonable and excessive.
    STANDARD OF REVIEW
    [1] The constitutionality of a statute presents a question of
    law, which we independently review.10
    [2] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court.11
    ANALYSIS
    Facial or As-A pplied Challenge
    As a threshold matter, we consider whether Stone has prop-
    erly presented his constitutional challenge to § 28-319.01. The
    proper procedure for raising and preserving a constitutional
    challenge differs depending on whether it is a facial or an
    as-applied challenge.12
    [3,4] As-applied challenges to the constitutionality of a
    criminal statute are preserved by a defendant’s plea of not
    guilty.13 But the proper procedure for raising a facial consti-
    tutional challenge to a criminal statute is to file a motion to
    quash, and all defects not raised in a motion to quash are taken
    as waived by a defendant pleading the general issue.14
    Stone did not file a motion to quash in this case and con-
    cedes he has waived any facial challenge to § 28-319.01.
    Instead, he characterizes his equal protection claim as an
    “as-applied” constitutional challenge to § 28-319.01. The State
    takes issue with this characterization and argues that Stone is
    10
    J.M. v. Hobbs, 
    288 Neb. 546
    , 
    849 N.W.2d 480
     (2014).
    11
    State v. Policky, 
    285 Neb. 612
    , 
    828 N.W.2d 163
     (2013).
    12
    See State v. Harris, 
    284 Neb. 214
    , 
    817 N.W.2d 258
     (2012).
    13
    State v. Boche, 
    294 Neb. 912
    , 
    885 N.W.2d 523
     (2016); Harris, supra
    note 12.
    14
    Harris, supra note 12.
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    STATE v. STONE
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    actually mounting a facial challenge to the constitutionality of
    § 28-319.01.
    [5-7] Regardless of how the parties label a constitutional
    challenge, a court will classify the challenge based upon the
    nature of the alleged constitutional defect.15 We have described
    a facial challenge as a “‘challenge to a statute, asserting that
    no valid application of the statute exists because it is unconsti-
    tutional on its face.’”16 Generally, a facial challenge seeks to
    void the statute in all contexts for all parties.17 In contrast, an
    as-applied challenge often concedes the statute is constitutional
    in some of its applications, but contends it is unconstitutional
    as applied to the particular facts of the case.18 An as-applied
    challenge does not seek to void the statute for all purposes,
    but seeks only to prevent the statute’s application to the facts
    before the court.19
    After reviewing the record and the parties’ arguments, we
    conclude that although Stone attempts to frame it otherwise,
    he is asserting a facial challenge to the statutory classification
    scheme under § 28-319.01. Stone argues there is no rational
    basis for a “statutory classification which imposes a substan-
    tially harsher sentence [for sexual assault of a child] when
    the actor is 25 years of age or older than when the actor is
    19 years of age or older.”20 In making this argument, Stone
    does not premise the alleged constitutional violation on any
    15
    See, e.g., State v. Sanders, 
    269 Neb. 895
    , 
    697 N.W.2d 657
     (2005).
    16
    
    Id. at 905
    , 697 N.W.2d at 667, quoting State v. Hynek, 
    263 Neb. 310
    , 
    640 N.W.2d 1
     (2002).
    17
    See 16 C.J.S. Constitutional Law § 243 (2015). See, also, Harris, supra
    note 12, 284 Neb. at 221, 817 N.W.2d at 268 (“a plaintiff can only succeed
    in a facial challenge by establishing that no set of circumstances exists
    under which the act would be valid, i.e., that the law is unconstitutional in
    all of its applications”).
    18
    16 C.J.S., supra note 17.
    19
    Id.
    20
    Brief for appellant at 7.
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    STATE v. STONE
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    facts specific to his case or circumstances. Instead, the nature
    of the constitutional defect he raises—that the age classifica-
    tion in § 28-319.01 is arbitrary and has no rational basis—is
    one that every offender 25 years of age or older could raise.
    His challenge seeks to void the statutory age classification
    in all contexts for all parties and is properly classified as a
    facial challenge.
    Because Stone has not preserved this facial challenge
    for appellate review, we do not reach his first assignment
    of error.
    Consecutive Sentences
    Stone argues the sentencing court abused its discretion by
    ordering two of the mandatory minimum sentences to run con-
    secutively. We find no abuse of discretion on this record.
    [8] Generally, it is within a trial court’s discretion to direct
    that sentences imposed for separate crimes be served either
    concurrently or consecutively.21 This is so, even when offenses
    carry a mandatory minimum sentence,22 unless the statute
    requires that consecutive sentences be imposed.23
    Section 28-319.01(2) requires a mandatory minimum
    prison sentence of 15 years24 and classifies Stone’s crime as a
    Class IB felony, which carries a maximum term of life impris-
    onment.25 The jury convicted Stone of four separate counts of
    first degree sexual assault of a child. The trial court imposed
    21
    State v. Berney, 
    288 Neb. 377
    , 
    847 N.W.2d 732
     (2014); Policky, supra
    note 11.
    22
    See, State v. Abejide, 
    293 Neb. 687
    , 
    879 N.W.2d 684
     (2016); State v.
    Lantz, 
    290 Neb. 757
    , 
    861 N.W.2d 728
     (2015).
    23
    Berney, supra note 21.
    24
    See State v. Russell, 
    291 Neb. 33
    , 
    863 N.W.2d 813
     (2015) (specific
    15-year mandatory minimum in § 28-319.01(2) for first degree sexual
    assault of child controls over general 20-year minimum for Class IB
    felonies in § 28-105).
    25
    § 28-105.
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    a sentence of 15 to 20 years’ imprisonment on each of the
    four convictions under § 28-319.01(2) and ordered two of the
    sentences to be served consecutively. All other sentences were
    ordered to be served concurrently.
    [9,10] 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.26 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 com-
    mission of the crime.27
    Here, the sentences imposed were well within the statutory
    range and the record shows the court considered and applied
    all the necessary sentencing factors. Stone committed serious
    felonies that caused lasting harm. He groomed his child victim
    and befriended her family to increase his access to the victim.
    He was found to be in the moderate-high risk range on a sex
    offender specific assessment. We find no abuse of discretion in
    ordering consecutive mandatory minimum sentences.
    CONCLUSION
    For the foregoing reasons, the judgment and sentences of
    the district court are affirmed.
    A ffirmed.
    26
    State v. Garza, 
    295 Neb. 434
    , 
    888 N.W.2d 526
     (2016).
    27
    State v. Rogers, 
    297 Neb. 265
    , 
    899 N.W.2d 626
     (2017).