State v. Phillips , 297 Neb. 469 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/27/2017 01:11 AM CDT
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. PHILLIPS
Cite as 297 Neb. 469
State of Nebraska, appellee, v.
Christian E. Phillips, appellant.
___ N.W.2d ___
Filed August 11, 2017. No. S-16-845.
1. 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.
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.
3. Sentences. When imposing a sentence, the sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education and expe-
rience, (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 violence involved in the
commission of the offense. The sentencing court is not limited to any
mathematically applied set of factors.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, and
John C. Jorgensen for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. PHILLIPS
Cite as 297 Neb. 469
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Heavican, C.J.
INTRODUCTION
Christian E. Phillips was found guilty of a violation of
the Sex Offender Registration Act (SORA). He was sen-
tenced to 12 months’ imprisonment and 12 months’ supervised
release. He appeals. This case presents our first opportunity to
address postrelease supervision as enacted by 2015 Neb. Laws,
L.B. 605. We affirm.
FACTUAL BACKGROUND
Phillips was convicted of third degree sexual assault of
a child in September 2013. Based upon that conviction, he
was required to register under SORA as a 25-year regis-
trant. Phillips received notification of that requirement and
acknowledged his responsibilities under the act.
Upon release, Phillips reported a location in Sarpy County,
Nebraska, as his address. Upon investigation, that address was
found to be fictitious. Phillips was later discovered to be resid-
ing at a different address. He never reported this address to
any sheriff’s office.
Accordingly, Phillips was charged with the failure to reg-
ister as required by SORA. He pled no contest pursuant to a
plea agreement and was sentenced to 12 months’ imprison-
ment and 12 months’ supervised release. In connection with
Phillips’ supervised release, the district court set multiple
conditions:
1. Shall not violate any laws and shall refrain from
disorderly conduct or acts injurious to others.
2. Shall avoid social contact with those persons having
criminal records or who are on probation or parole, except
as expressly permitted by your post-release supervision/
probation officer.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. PHILLIPS
Cite as 297 Neb. 469
3. Shall report in writing and/or in person during the
term of post-release supervision/probation as directed by
the Court or post-release supervision/probation officer.
4. Shall truthfully answer any inquiries of the post-
release supervision/probation officer and allow the post-
release supervision/probation officer to visit at all reason-
able times and places.
5. Shall be employed, in school or in treatment or
a combination of any not less than full time, or pro-
vide proof that employment, school admission or treat-
ment is being sought, and permission of the post-release
­supervision/probation officer shall be obtained before any
change of employment, school or treatment.
6. Shall reside at an address provided to the post-
release supervision/probation officer, and permission of
the post-release supervision/probation officer shall be
obtained before any change of address. Travel permits are
required for any travel outside of the state of Nebraska.
7. Shall submit to search and seizure of your prem-
ises, person, or vehicle upon request of the post-release
supervision/probation officer (or law enforcement offi-
­
cer), with or without a warrant, day or night, to deter-
mine the presence of alcoholic beverages, controlled
substances or other contraband.
8. Shall not use, consume or have in your personal
possession any alcoholic beverage or controlled substance
(except as prescribed by a duly licensed physician or den-
tist) and shall submit to a chemical test of blood, breath,
or urine at your expense upon request of the post-release
supervision/probation officer or law enforcement officer
to determine the use of alcoholic liquor or drugs. The
prohibition against using, consuming and/or possessing
controlled substances includes designer drugs and syn-
thetic drugs.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. PHILLIPS
Cite as 297 Neb. 469
9. Shall submit to random drug and alcohol testing as
instructed by your post-release supervision officer but in
no event fewer than 3 times per week.
10. Shall not have or associate with anyone who has
possession of firearms, ammunition, or illegal weapons.
11. FINE AND COSTS: Shall pay:
a. Court Costs — ALL;
b. Chemical Testing: $5.00 per month to the state
supervising post-release supervision office;
c. Pay a post-release supervision administrative
enrollment fee of $30.00 immediately. In addition, pay
a monthly post-release supervision programming fee. If
supervised in Nebraska, pay a monthly fee of $25.00 per
month for 12 months. Monthly post-release supervision
programming fees are due and payable to the Clerk of the
District Court on or before the 10th day of each month.
12. Any bond money not subject to a valid lien or
assignment shall be applied to the financial obliga-
tions ordered herein. All financial obligations shall be
completed no later than 30 days prior to the date of dis-
charge from post-release supervision.
13. Shall not frequent any establishment whose pri-
mary source of business is the dispensing of alcoholic
beverages.
14. Shall successfully complete an alcohol, drug, sub-
stance abuse and/or mental health evaluation and follow
all recommendations for counseling or treatment at the
recommended level of care, as directed by the post-
release supervision/probation officer at the defendant’s
costs.
15. Shall attend at least 2 social support group meet-
ings such as AA or NA per week, and obtain and maintain
an AA/NA sponsor within 60 days, and verify the same
with your post-release supervision/probation officer.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. PHILLIPS
Cite as 297 Neb. 469
16. CONTINUOUS ALCOHOL MONITOR: Defendant
shall be required to be equipped with and use a continu-
ous alcohol monitoring device if directed by the post
release supervision/probation officer, at the Defendant’s
cost.
17. Shall sign any releases necessary for continued
evaluation and/or treatment of any alcohol, drug, sub-
stance abuse and/or mental health care as outlined above.
18. Shall participate in and follow the case plan devel-
oped by the post release supervision officer including, but
not limited to, life skills group or educational enhance-
ment classes, social activities, and any other program-
ming deemed by the probation office to be of benefit to
the Defendant.
19. Shall complete a sexually-based offense screening
and follow any screening recommendation for evaluation
or treatment as may be determined by the post release
supervision officer to be reasonable and necessary for
Defendant’s rehabilitation.
20. Shall not use any electronic device that has access
to the internet until written permission to do so is granted
by the post release supervision officer.
21. To the extent Defendant has written permission
to access the internet, Defendant shall comply with any
limitations for such access as directed by the post release
supervision officer including the installation of tracking
or other software. Defendant consents, upon the request
of any law enforcement officer or post release supervi-
sion officer to the examination and search of any elec-
tronic device owned or used by the Defendant. Defendant
shall, on request provide law enforcement officers with
all email addresses and social media identifiers of every
kind or nature used by the Defendant to access any inter-
net site. To further enable such examination or search,
Defendant shall on request, provide any passwords, PINs,
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. PHILLIPS
Cite as 297 Neb. 469
access codes, web addresses, login scripts or other pro-
tocol needed to access any devices used or required to
access the particular internet resource. Defendant shall
not erase any internet browsing data, history or down-
loaded files from any electronic device.
22. Shall not use the internet for any reason unless
given advanced permission by the supervising officer.
If permission is granted, the defendant shall refrain
from visiting or viewing any social internet site, chat
room or pornographic internet site at any time. Further,
the Defendant is not allowed to visit any other type
of internet site in which there is interaction with other
people without first identifying the site to the supervis-
ing officer and obtaining permission to utilize such site.
Finally, the Defendant shall grant the officer full access
to all computers to which the defendant has access upon
request to confirm compliance with the prohibitions set
forth herein.
23. Shall not use or possess a computer, smart phone
or any other electronic device with internet access without
permission of the supervising officer.
24. Shall not possess any pornographic, sexually ori-
ented or sexually stimulating materials to include: visual,
auditory, telephonic, electronic media, computer programs
or services. Defendant shall not patronize any place where
such material or entertainment is available. Defendant
shall not utilize any sexually related telephone numbers,
and may be required to submit proof of this.
25. The supervising officer may grant permission for
the use of sexually oriented material only for treatment
purposes.
26. Defendant shall submit to polygraph examinations
as directed by the post release supervision officer at
Defendant’s cost.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. PHILLIPS
Cite as 297 Neb. 469
The sentencing order additionally noted that “the Court, upon
application of the supervising officer or the Defendant or upon
its own Motion, may modify or eliminate any of the above
conditions or add further conditions.”
ASSIGNMENTS OF ERROR
Phillips assigns that (1) his sentence was excessive and (2)
certain conditions imposed were unconstitutional, “in violation
of the First Amendment, Ex Post Facto protections, the Fourth
Amendment and Due Process guarantees and conditions that
are not reasonably related to [his] rehabilitation.”
STANDARD OF REVIEW
[1,2] 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.1 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence.2
ANALYSIS
Phillips argues that his sentence was excessive and that cer-
tain conditions imposed upon him were unconstitutional.
Excessive Sentence —
Imprisonment
Phillips, a 25-year SORA registrant, failed to register his
address as required by SORA. He was convicted of that vio-
lation, a Class IIIA felony, and was sentenced to 12 months’
imprisonment. He argues that this sentence was excessive.
1
State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
2
State v. Loding, 296 Neb. 670, 895 N.W.2d 669 (2017).
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. PHILLIPS
Cite as 297 Neb. 469
[3] When imposing a sentence, the sentencing judge should
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) moti-
vation for the offense, as well as (7) the nature of the offense
and (8) the violence involved in the commission of the offense.
The sentencing court is not limited to any mathematically
applied set of factors.3
As an initial matter, Phillips served 6 months on this con-
viction and, with good time, has since been released from
imprisonment and is serving his 1-year term of postrelease
supervision. In any case, however, this term of imprisonment
was not excessive.
Phillips’ SORA violation was a Class IIIA felony, punish-
able by a maximum of 3 years’ imprisonment and 18 months’
postrelease supervision, and/or a $10,000 fine.4 His 1-year sen-
tence of imprisonment was within statutory guidelines and well
below the maximum.
Phillips argues that he does not have an extensive criminal
record and that thus, the sentence of 1 year’s imprisonment
was excessive. While it might be true that Phillips does not
have an extensive history, he does have at least one convic-
tion for sexual assault—the crime that required him to regis-
ter under SORA. And Phillips failed to comply with SORA.
Given the nature of the charge as it related to Phillips’ criminal
history, we cannot conclude that this sentence was an abuse
of discretion.
Phillips’ first assignment of error is without merit.
Conditions of Postrelease
Supervision
Phillips also argues that the conditions of his postrelease
supervision were unconstitutional in various respects. As noted
3
State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (2015).
4
Neb. Rev. Stat. § 28-105 (Supp. 2015).
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. PHILLIPS
Cite as 297 Neb. 469
above, Phillips was convicted of a Class IIIA felony and up to
18 months’ postrelease supervision is permitted.5
Both § 28-105 and Neb. Rev. Stat. § 29-2204.02 (Supp.
2015) authorize the imposition of postrelease supervision as
part of a determinate sentence. Section 28-105(5) further pro-
vides 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.” Thus, as an initial matter, there
is no question that it was proper for the district court to impose
both a sentence of imprisonment and a sentence of postrelease
supervision, and Phillips does not argue otherwise.
Neb. Ct. R. § 6-1904 (rev. 2016) provides the process to
undertake when imposing a sentence of postrelease supervi-
sion. According to § 6-1904(A),
[i]n 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).
In accordance with this subsection, the district court imposed
a determinate sentence of 12 months and a 12-month term of
postrelease supervision, complete with conditions. It was from
this final order that Phillips appealed.
Before addressing the validity of the conditions imposed
upon Phillips, we must consider the State’s contention that
Phillips has waived any objection to those conditions.
5
Id.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. PHILLIPS
Cite as 297 Neb. 469
We observe that notice is essential to the resolution of
whether Phillips waived any objection to the conditions of his
postrelease supervision.6 Fundamental to the question of notice
are whether the defendant was adequately informed about
the conditions of his postrelease supervision and whether the
defendant was given the opportunity to challenge those con-
ditions. If a defendant is not adequately informed about the
conditions imposed or does not receive an opportunity to chal-
lenge them, there can be no waiver.
We conclude that, in this case, Phillips was adequately
informed of the conditions of his postrelease supervision and
was given the opportunity to challenge those conditions. At
his sentencing hearing, Phillips refused to sign an attestation
to the conditions indicating that he agreed to the conditions
of his postrelease supervision. Instead, Phillips agreed only to
sign an acknowledgment that he had received those conditions.
But our review of the record shows that at no point during that
hearing did Phillips specify the issues and concerns he had
with the conditions imposed upon him. As such, we conclude
that Phillips waived those conditions because his objections
were insufficient to preserve them.
CONCLUSION
The judgment and sentence of the district court are affirmed.
A ffirmed.
6
Cf. State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006).