State v. Jones , 297 Neb. 557 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/03/2017 09:14 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    STATE v. JONES
    Cite as 
    297 Neb. 557
    State of Nebraska, appellee, v.
    Daniel Lee Jones, appellant.
    ___ N.W.2d ___
    Filed August 18, 2017.    No. S-16-1001.
    1.	 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.
    2.	 Judges: Words and Phrases. A judicial abuse of discretion exists when
    the reasons or rulings of a trial judge are clearly untenable, unfairly
    depriving a litigant of a substantial right and denying just results in mat-
    ters submitted for disposition.
    3.	 Constitutional Law: Sentences. Whether a sentence constitutes cruel
    and unusual punishment in violation of the Eighth Amendment presents
    a question of law.
    4.	 Judgments: Appeal and Error. When reviewing a question of law,
    an appellate court reaches a conclusion independent of the lower
    court’s ruling.
    5.	 Constitutional Law: Minors: Homicide: Sentences. The Eighth
    Amendment forbids a state sentencing scheme that mandates life in
    prison without the possibility of parole for a juvenile offender convicted
    of homicide.
    6.	 Minors: Homicide: Sentences. A sentencing court must consider spe-
    cific, individualized factors before handing down a sentence of life
    imprisonment without parole for a juvenile convicted of a homicide.
    Appeal from the District Court for Sarpy County: David K.
    A rterburn, Judge. Affirmed.
    Julie E. Bear, of Reinsch, Slattery, Bear & Minahan, P.C.,
    L.L.O., for appellant.
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    STATE v. JONES
    Cite as 
    297 Neb. 557
    Douglas J. Peterson, Attorney General, and Melissa R.
    Vincent for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Daniel Lee Jones pled no contest to first degree murder in
    1999 and was sentenced to imprisonment for life. Jones was 16
    years old at the time of the murder, and therefore, his life sen-
    tence was vacated in 2015 pursuant to Miller v. Alabama, 
    567 U.S. 460
    , 
    132 S. Ct. 2455
    , 
    183 L. Ed. 2d 407
    (2012), and he
    was granted a resentencing. After a hearing, the district court
    for Sarpy County resentenced Jones to imprisonment for 80
    years to life. Jones appeals his resentencing. We affirm.
    STATEMENT OF FACTS
    Jones was charged with first degree murder and use of a
    weapon to commit a felony in connection with the stabbing
    death of Scott Catenacci. Jones’ birth date is November 7,
    1981. The killing occurred on or about September 29, 1998.
    Pursuant to a plea agreement, Jones pled no contest to first
    degree murder and the State dismissed the use of a weapon
    charge. The factual basis presented by the State at the plea
    hearing indicated that Jones, in concert with other defendants,
    had attacked Catenacci and stabbed him to death. The attack
    on Catenacci, having been discussed several days beforehand,
    was premeditated, deliberate, and malicious. Jones stabbed
    Cateneacci several times, and Catenacci died as a result of the
    wounds. Jones was convicted, and on June 28, 1999, the dis-
    trict court sentenced him to imprisonment for life.
    Jones’ first direct appeal was dismissed for failure to pay the
    statutory docket fee, but Jones obtained a new direct appeal
    as postconviction relief. Jones’ conviction and sentence were
    affirmed by this court in the new direct appeal. State v. Jones,
    
    274 Neb. 271
    , 
    739 N.W.2d 193
    (2007).
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    STATE v. JONES
    Cite as 
    297 Neb. 557
    On June 25, 2012, the U.S. Supreme Court held in 
    Miller, supra
    , that “mandatory life without parole for those under
    the age of 18 at the time of their crimes violates the Eighth
    Amendment’s prohibition on ‘cruel and unusual punish-
    
    ments.’” 567 U.S. at 465
    . Although the Court in Miller con-
    cluded that the Eighth Amendment prohibited a mandatory
    life sentence without parole, the Court allowed the possibil-
    ity that a juvenile convicted of a homicide offense could be
    sentenced to life in prison, but only after “consideration of
    the juvenile’s special circumstances in light of the principles
    and purposes of juvenile sentencing.” See Montgomery v.
    Louisiana, ___ U.S. ____, 
    136 S. Ct. 718
    , 725, 
    193 L. Ed. 2d 599
    (2016). In response to Miller, the Nebraska Legislature
    enacted Neb. Rev. Stat. § 28-105.02 (Reissue 2016), which,
    inter alia, sets forth mitigating factors that a court must con-
    sider when sentencing a juvenile convicted of a Class IA
    felony. In State v. Mantich, 
    287 Neb. 320
    , 
    842 N.W.2d 716
    (2014), we held that the rule announced in Miller v. Alabama,
    
    567 U.S. 460
    , 
    132 S. Ct. 2455
    , 
    183 L. Ed. 2d 407
    (2012),
    applied retroactively to a case on collateral review. See, also,
    
    Montgomery, supra
    .
    On June 21, 2013, Jones, who was 16 years old at the time
    of the murder, filed a motion for postconviction relief based on
    Miller. After this court’s holding in Mantich and after an evi-
    dentiary hearing, the district court on July 9, 2015, sustained
    Jones’ motion and, as postconviction relief, vacated his sen-
    tence and set the matter for resentencing.
    In August 2016, the court held a mitigation hearing as
    part of the resentencing. At the mitigation hearing, Jones
    presented evidence including the deposition testimony of a
    certified child and adult psychologist regarding adolescent
    brain development and the significant differences between
    juveniles and adults. Jones presented live testimony of wit-
    nesses including Jones’ sister, who testified regarding Jones’
    childhood experiences and his home and family life while
    growing up. She generally testified that the family moved
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    STATE v. JONES
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    297 Neb. 557
    frequently during Jones’ childhood and mostly lived in areas
    of poor socioeconomic status that were prone to crime and
    gang violence, that Jones never knew or was involved with
    his father when growing up, that their mother had a succes-
    sion of boyfriends who were abusive, and that Jones had very
    little supervision and ended up going “along with the [wrong]
    crowd.” Jones also presented testimony by a unit manager in
    the prison where Jones was incarcerated that Jones was quiet,
    followed the rules, and was not a problem inmate. Jones also
    presented testimony by a clinical psychologist who had per-
    formed a comprehensive mental health evaluation of Jones
    for purposes of the mitigation hearing. He testified regarding
    various findings with respect to Jones’ mental and psychologi-
    cal functioning and his neuropsychological development. He
    further testified, inter alia, that Jones had matured over time
    and had supports in place for employability and residence in
    the community. He opined in a report that Jones was at a low
    risk for future violence.
    The district court resentenced Jones on October 3, 2016.
    At the sentencing hearing, the court stated that it had consid-
    ered Jones’
    age, now and at the time of the offense, his mentality,
    education, experience, social and cultural background,
    past criminal record or record of law-abiding conduct,
    the motivation for the offense, as well as the nature and
    severity of the offense and the significant amount of vio-
    lence involved in the commission of the crime.
    The court stated that it had also considered, inter alia,
    all of the evidence adduced at the mitigation hearing,
    including, but not limited to, the expert testimony, the
    pertinent case law, including, but not limited to, the
    ale underlying the case [
    Miller, supra
    ], . . . the
    ration­
    records of the Department of Corrections concerning
    [Jones’] actions and behavior while incarcerated,
    and “the factors set forth in [§] 28-105.02(2).” The court also
    noted that the crime committed by Jones “was an extremely
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    STATE v. JONES
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    297 Neb. 557
    heinous crime” involving a “brutal, brutal murder” and that
    Jones had “participated both in planning and the execu-
    tion of the crime.” The court concluded that “a sentence of
    some severity is required but not such severity that [Jones]
    would never have hope of being released from prison.” The
    court resentenced Jones to imprisonment for 80 years to life
    with credit for time served and statutory parole eligibility at
    age 56.
    Jones appeals the district court’s resentencing.
    ASSIGNMENTS OF ERROR
    Jones claims, restated and summarized, that his sentence of
    80 years’ to life imprisonment with parole eligibility at age
    56 is excessive and, in particular, that the court (1) abused its
    discretion by imposing a de facto life sentence which violated
    constitutional protections against cruel and unusual punishment
    and denied him a meaningful opportunity for release based
    upon demonstrated maturity and rehabilitation, (2) violated his
    constitutional due process rights when it failed to make spe-
    cific findings to demonstrate that it adequately considered his
    age-related characteristics, and (3) violated his constitutional
    rights against cruel and unusual punishment by imposing a
    sentence which was not proportional.
    STANDARDS OF REVIEW
    [1,2] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by
    the trial court. State v. Jackson, ante p. 22, ___ N.W.2d ___
    (2017); State v. Mantich, 
    287 Neb. 320
    , 
    842 N.W.2d 716
    (2014). A judicial abuse of discretion exists when the reasons
    or rulings of a trial judge are clearly untenable, unfairly depriv-
    ing a litigant of a substantial right and denying just results in
    matters submitted for disposition. 
    Id. [3,4] Whether
    a sentence constitutes cruel and unusual pun-
    ishment in violation of the Eighth Amendment presents a
    question of law. State v. Nollen, 
    296 Neb. 94
    , 
    892 N.W.2d 81
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    STATE v. JONES
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    297 Neb. 557
    (2017). When reviewing a question of law, an appellate court
    reaches a conclusion independent of the lower court’s rul-
    ing. 
    Id. ANALYSIS [5,6]
    In Miller v. Alabama, 
    567 U.S. 460
    , 
    132 S. Ct. 2455
    ,
    
    183 L. Ed. 2d 407
    (2012), the U.S. Supreme Court held the
    Eighth Amendment forbids a state sentencing scheme that
    mandates life in prison without the possibility of parole for a
    juvenile offender convicted of homicide. Miller did not “cat-
    egorically bar” the imposition of a sentence of life imprison-
    ment without parole, but, instead, “held that a [sentencing
    court] must consider specific, individualized factors before
    handing down a sentence of life imprisonment without parole
    for a juvenile” convicted of a homicide. 
    Mantich, 287 Neb. at 339-40
    , 842 N.W.2d at 730. We have previously held, in
    Mantich, that Miller applied retroactively and that therefore,
    any juvenile sentenced to mandatory life imprisonment without
    parole could have his or her sentence vacated and the cause
    remanded for resentencing.
    In response to Miller, the Nebraska Legislature amended
    the sentencing laws for juveniles convicted of first degree
    murder.
    Section 28-105.02, which applies to this case, provides
    as follows:
    (1) Notwithstanding any other provision of law, the
    penalty for any person convicted of a Class IA felony for
    an offense committed when such person was under the
    age of eighteen years shall be a maximum sentence of not
    greater than life imprisonment and a minimum sentence
    of not less than forty years’ imprisonment.
    (2) In determining the sentence of a convicted person
    under subsection (1) of this section, the court shall con-
    sider mitigating factors which led to the commission of
    the offense. The convicted person may submit mitigating
    factors to the court, including, but not limited to:
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    STATE v. JONES
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    297 Neb. 557
    (a) The convicted person’s age at the time of the
    offense;
    (b) The impetuosity of the convicted person;
    (c) The convicted person’s family and community
    environment;
    (d) The convicted person’s ability to appreciate the
    risks and consequences of the conduct;
    (e) The convicted person’s intellectual capacity; and
    (f) The outcome of a comprehensive mental health
    evaluation of the convicted person conducted by an ado-
    lescent mental health professional licensed in this state.
    The evaluation shall include, but not be limited to, inter-
    views with the convicted person’s family in order to learn
    about the convicted person’s prenatal history, develop-
    mental history, medical history, substance abuse treatment
    history, if any, social history, and psychological history.
    With these principles in mind, we analyze Jones’ assign-
    ments of error, each of which challenges the appropriateness of
    the sentence imposed at the resentencing.
    The Sentencing Court Did Not Impose a
    De Facto Life Sentence in Violation of
    the Eighth Amendment and Neb.
    Const. art. I, §§ 9 and 15.
    Jones asserts that his sentence of 80 years’ to life impris-
    onment “is the functional equivalent of life without parole.”
    Brief for appellant at 27. In this regard, at the sentencing
    hearing, Jones submitted and the district court considered life
    expectancy information for the purpose of illustrating that con-
    victed persons incarcerated in their youth can expect a shorter
    lifespan. Jones contends that convicted persons incarcerated
    in their youth may never reach parole eligibility age or that if
    they reach parole eligibility at an advanced age, the sentence
    is tantamount to a life sentence. Jones similarly contends that
    a “geriatric parole” does not afford him an opportunity for
    meaningful release. 
    Id. - 564
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    Nebraska Supreme Court A dvance Sheets
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    STATE v. JONES
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    297 Neb. 557
    We have recently considered and rejected these conten-
    tions. In State v. Smith, 
    295 Neb. 957
    , 
    892 N.W.2d 52
    (2017),
    we declined to find that life expectancy is the sole control-
    ling issue, but we acknowledged that it is a matter the sen-
    tencing court can consider. In Smith, we also concluded that
    U.S. Supreme Court precedent indicated that the “meaningful
    opportunity” requirement requires a “meaningful and realistic
    opportunity to obtain release” from prison but did not refer
    to the enjoyment of life after 
    release. 295 Neb. at 979
    , 892
    N.W.2d at 66.
    We continue to believe our conclusions in Smith are sound,
    and we apply them here. In this regard, we note that when
    resentencing Jones, the district court explicitly considered
    Jones’ anticipated release and intended to give Jones “hope of
    being released from prison.” Given the record and our juris-
    prudence, we find no merit to Jones’ contention that his parole
    eligibility at age 56 is unconstitutional.
    The District Court Did Not Err When It Did Not
    Make Specific Findings of Fact Regarding
    Age-Related Characteristics.
    Jones contends that his constitutional rights to due process
    were violated because the district court did not make specific
    findings regarding age-related characteristics. We recently
    considered and rejected a comparable argument in State v.
    Garza, 
    295 Neb. 434
    , 
    888 N.W.2d 526
    (2016). In Garza,
    we stated, “[The appellant] argues that when the sentencing
    court imposed the 90-to-90-year sentence, it failed to make
    a specific finding that [he] was that ‘“rare juvenile offender
    whose crime reflects irreparable corruption”’ as opposed to
    ‘“transient 
    immaturity.”’” 295 Neb. at 447
    , 888 N.W.2d
    at 534. Like the defendant in Garza, because Jones was
    not sentenced to life imprisonment without parole, we find
    no merit to Jones’ argument that the sentencing court was
    required to make specific findings including a finding regard-
    ing “irreparable corruption.” See, also, State v. Jackson, ante
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    STATE v. JONES
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    297 Neb. 557
    p. 22, ___ N.W.2d ___ (2017); State v. Nollen, 
    296 Neb. 94
    ,
    
    892 N.W.2d 81
    (2017); State v. Mantich, 
    287 Neb. 320
    , 
    842 N.W.2d 716
    (2014).
    Jones suggests that other courts have chosen to require find-
    ings of fact. Compare Sen v. State, 
    301 P.3d 106
    (Wyo. 2013)
    (stating in case imposing life sentence without parole that
    findings of fact are generally indicated). However, as Jones
    acknowledges, Miller v. Alabama, 
    567 U.S. 460
    , 
    132 S. Ct. 2455
    , 
    183 L. Ed. 2d 407
    (2012), did not impose a formal fact-
    finding requirement where the sentence includes the possibility
    of parole. Accordingly, we continue to adhere to our previously
    announced jurisprudence in this area.
    We have reviewed the record and the resentencing court’s
    order. By the announcement of its consideration of the factors
    in § 28-105.02(2), not repeated here, as well as the customary
    factors in imposing sentences, we believe the sentencing court
    met the due process required by the Constitution, Miller, and
    Montgomery v. Louisiana, ___ U.S. ___, 
    136 S. Ct. 718
    , 
    193 L. Ed. 2d 599
    (2016).
    The Sentence Is Not Unconstitutionally
    Disproportionate.
    Jones argues that in his case, the punishment does not fit
    the offender, based on “‘the basic “precept of justice that
    punishment for crime should be graduated and proportioned”’
    to both the offender and the offense.” See 
    Miller, 567 U.S. at 469
    .
    Jones urges us to give considerable weight to his youth
    because, although his age was considered in sentencing, he
    claims that his crime reflects “‘“unfortunate yet transient
    immaturity”’” and that thus, his sentence still violates the
    Eighth Amendment. See 
    Montgomery, 136 S. Ct. at 734
    . In
    Montgomery, the Court recognized that because of a juvenile
    homicide offender’s “‘diminished culpability and heightened
    capacity for change,’” it should be uncommon to deny a
    juvenile offender parole except in cases involving “the rare
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    juvenile offender who exhibits such irretrievable depravity that
    rehabilitation is 
    impossible.” 136 S. Ct. at 733
    . Jones compares
    his sentence to those of other juvenile homicide offenders and
    contends that his prior immaturity at age 16, coupled with
    improved behavior since his coming of age, establishes his
    capacity for remorse and reform.
    In this regard, at the sentencing hearing, Jones submitted
    and the court considered a matrix of sentences imposed on
    other juveniles resentenced in Nebraska under Miller. Jones
    suggests his sentence was comparatively more severe. We do
    not agree.
    We have previously considered and rejected a broad pro-
    portionality claim in 
    Mantich, supra
    . In Mantich, we stated:
    The Eighth Amendment “prohibits not only barbaric
    punishments, but also sentences that are disproportion-
    ate to the crime committed.” The U.S. Supreme Court
    has characterized this as a “‘narrow proportionality prin-
    ciple’” which “‘does not require strict proportionality
    between crime and sentence’” but, rather, “‘forbids only
    extreme sentences that are “grossly disproportionate” to
    the 
    crime.’” 287 Neb. at 353-54
    , 842 N.W.2d at 738.
    In this case, we recognize Jones’ youthful status in that he
    was 6 weeks shy of his 17th birthday when he participated
    in the murder. However, evidence showed Jones planned
    the murder in advance, executed the crime, and, after see-
    ing it through to completion, undertook acts of concealment,
    including disposing of the knife used during the murder and
    lying to the police. Jones’ actions were not merely youthful
    impulse; they were calculated, malicious, and violent. The
    sentencing court stated “a sentence of some severity” was
    required. We agree with the sentencing court that the sentence
    is appropriate for the offense and offender. We therefore con-
    clude that the sentence was not disproportionate under the
    Eighth Amendment.
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    CONCLUSION
    The appropriateness of a sentence is necessarily a subjective
    judgment and includes the sentencing judge’s observations of
    a convicted person’s demeanor and attitude and all of the facts
    and circumstances surrounding his life. The sentencing court
    adhered to these principles. Upon our review of the record, we
    conclude that Jones’ sentence of 80 years’ to life imprisonment
    with parole eligibility at age 56 is in accordance with consti-
    tutional principles; Miller v. Alabama, 
    567 U.S. 460
    , 132 S.
    Ct. 2455, 
    183 L. Ed. 2d 407
    (2012); and § 28-105.02, and we
    therefore affirm Jones’ sentence.
    A ffirmed.