State v. Smith , 295 Neb. 957 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/03/2017 08:08 AM CST
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    Nebraska Supreme Court A dvance Sheets
    295 Nebraska R eports
    STATE v. SMITH
    Cite as 
    295 Neb. 957
    State of Nebraska, appellee, v.
    Brian D. Smith, appellant.
    ___ N.W.2d ___
    Filed March 3, 2017.    No. S-16-199.
    1.	 Breach of Contract: Plea Bargains. When the facts are undisputed,
    the question of whether there has been a breach of a plea agreement is a
    question of law.
    2.	 Constitutional Law: Sentences: Words and Phrases: Appeal and
    Error. Whether a sentence constitutes cruel and unusual punishment in
    violation of the Eighth Amendment presents a question of law. When
    reviewing a question of law, an appellate court reaches a conclusion
    independent of the lower court’s ruling.
    3.	 Sentences: Appeal and Error. A sentence imposed within statutory
    limits will not be disturbed on appeal absent an abuse of discretion by
    the trial court. An abuse of discretion in imposing a sentence occurs
    when a sentencing court’s reasons or rulings are clearly untenable and
    unfairly deprive the litigant of a substantial right and a just result.
    4.	 Plea Bargains: Specific Performance: Pleas. When the State breaches
    a plea agreement, the defendant generally has the option of either having
    the agreement specifically enforced or withdrawing his or her plea.
    5.	 Courts: Plea Bargains. Courts enforce only those terms and conditions
    about which the parties to a plea agreement did in fact agree.
    6.	 Sentences: Statutes: Time. The good time law in effect at the time a
    defendant’s convictions become final is the law that is to be applied to
    the defendant’s sentences.
    7.	 Convictions: Sentences: Final Orders: Time: Appeal and Error. A
    defendant’s convictions and sentences become final on the date that the
    appellate court enters its mandate concerning the defendant’s appeal.
    8.	 Constitutional Law: Sentences: Statutes: Time. When a defendant’s
    original sentence has been vacated for being unconstitutional and void,
    the good time law to be applied to the defendant’s new sentence is the
    law in effect at the time that sentence becomes final.
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    9.	 Constitutional Law: States: Minors: Convictions: Sentences:
    Homicide: Probation and Parole. It is unconstitutional for a state to
    impose a sentence of life imprisonment without parole on a juvenile
    convicted of a nonhomicide offense.
    10.	 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.
    11.	 Sentences. In determining the sentence to be imposed, relevant factors
    customarily considered and applied are the defendant’s (1) age, (2) men-
    tality, (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 amount of violence involved in the commission of the crime.
    Appeal from the District Court for Washington County: John
    E. Samson, Judge. Affirmed.
    Jeffery A. Pickens, of Nebraska Commission on Public
    Advocacy, for appellant.
    Douglas J. Peterson, Attorney General, and Melissa R.
    Vincent for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    K elch, J.
    I. NATURE OF CASE
    In 1983, Brian D. Smith pled guilty to kidnapping, a Class IA
    felony—a crime Smith committed when he was 16 years old.
    Smith’s sentence of life imprisonment was later vacated, and
    he was resentenced to 90 years’ to life imprisonment. Smith
    appeals this sentence, alleging that it is excessive and violates
    the 8th and 14th Amendments to the U.S. Constitution and the
    principles set forth in the U.S. Supreme Court case Graham
    v. Florida.1
    1
    Graham v. Florida, 
    560 U.S. 48
    , 
    130 S. Ct. 2011
    , 
    176 L. Ed. 2d 825
          (2010).
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    STATE v. SMITH
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    II. FACTS
    1. Overview
    Smith was 16 years old when he pled guilty to the crimes
    of burglary and kidnapping. In exchange for Smith’s pleas,
    the State dismissed charges of robbery, first degree sexual
    assault, and felony murder. Smith’s crime of kidnapping was
    a Class IA felony because the kidnapping victim was not vol-
    untarily released or liberated alive and in a safe place without
    having suffered serious bodily injury. In fact, the victim was
    later found dead. For the burglary, Smith was sentenced to 5 to
    20 years’ imprisonment. For the kidnapping, the court imposed
    a concurrent sentence of life imprisonment. Smith’s codefend­
    ant, Dale Nollen, pled guilty to first degree murder and was
    also sentenced to life imprisonment.
    In 2010, the U.S. Supreme Court decided Graham,2 in which
    it held that the Eighth Amendment prohibits the imposition
    of life imprisonment without parole upon juvenile offend-
    ers who have not committed homicide. In 2012, in Miller v.
    Alabama,3 the Supreme Court held that the Eighth Amendment
    prohibits mandatory life imprisonment without parole for juve-
    nile offenders.
    In 2015, Smith filed an application for a writ of habeas cor-
    pus in Lancaster County District Court. After an evidentiary
    hearing, the district court determined that Smith was entitled to
    relief under Graham and vacated Smith’s life sentence. Smith’s
    case was remanded to the Washington County District Court,
    where he was resentenced to 90 years’ to life imprisonment.
    From that sentence, Smith appeals.
    2. R esentencing Hearing
    At the resentencing hearing, Smith’s counsel argued that
    Smith should receive a lenient sentence because of his imma-
    turity, vulnerability, and lack of true depravity at the time
    2
    Id.
    3
    Miller v. Alabama, ___ U.S. ___, 
    132 S. Ct. 2455
    , 
    183 L. Ed. 2d 407
          (2012).
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    of the crime. Smith offered and the court received several
    exhibits, including (a) Nollen’s application to the Board of
    Pardons, containing Nollen’s statement about what happened
    on January 11, 1983; (b) Smith’s 1983 presentence report,
    which contains Smith’s statement about what happened on
    January 11, 1983; (c) a psychological evaluation of Smith con-
    ducted in 1983; (d) a psychological evaluation of Smith con-
    ducted in 2015; (e) Smith’s misconduct and progress reports
    from the Nebraska Department of Correctional Services and
    the Missouri Department of Corrections; (f) amici briefs sub-
    mitted in U.S. Supreme Court cases; and (g) a transcript of a
    deposition of Dr. Kayla Pope. We discuss the relevant portions
    of each exhibit before discussing the disposition of the case.
    (a) Nollen’s Statement
    In 2007, Nollen submitted an application for commutation
    to the Board of Pardons in which he described his “story of
    the crime.”
    In the application, Nollen confessed that it was his idea to
    rob a doughnut shop in Blair, Nebraska. He had worked there
    previously and needed $50 to pay his portion of a gas bill.
    When Nollen had worked there, the money from each day’s
    sales was left in the store overnight and deposited the next
    morning by the owner. Nollen explained in the application,
    “[A]ll I would have to do is go in the back door, go down stairs
    to the basement and wait until everyone left. Then, go upstairs,
    get the money and leave.” Nollen told Smith about the plan
    and asked Smith if he wanted to go with him. Nollen wrote,
    “[Smith] said he liked the idea and did want to go.”
    At around 3 p.m. on January 11, 1983, Smith and Nollen
    went into the doughnut shop to see who was working. It
    was 21-year-old Mary Jo Hovendick (Mary Jo). After Smith
    and Nollen talked to Mary Jo briefly, they left the doughnut
    shop through the front door, walked around to the back alley,
    through a back door of the doughnut shop, and into the base-
    ment of the shop.
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    Smith and Nollen waited in the basement. According to
    Nollen, he and Smith “smoked a couple bowls of pot and talked
    about how pretty Mary Jo is and what a nice body she has.”
    Nollen made a comment “about the only way [they] would have
    a chance with her would be to take it.” According to Nollen,
    Smith asked him if he wanted to, and Nollen laughed and said
    “okay.” Nollen said that they got up and walked toward the
    stairs and that Nollen then stopped and said, “[F]___ that, if we
    did that we would have to kill her so she wouldn’t tell on us.”
    Smith and Nollen went back and sat down again.
    Nollen wrote that he and Smith did not talk much for the
    next hour or so. During that time, Nollen was thinking about
    how pretty Mary Jo was and “how nice it would be to have sex
    with her.” Nollen knew Mary Jo from school. Nollen wrote,
    “She had the reputation of being really quiet, shy - a loner but
    popular. She never had a boyfriend, so I was thinking if I had
    sex with her and messed up, she would never know because
    she has never been with anyone.” Nollen “fell asleep thinking
    about [Mary Jo],” and Smith woke him up about an hour later.
    Because neither Smith nor Nollen had a watch, neither one
    knew how long they had been waiting. Without knowing what
    time it was, they walked upstairs to see if they could hear
    anything. Nollen said they knew the store was closed because
    Mary Jo was in the office. They could hear her counting the
    money. Nollen told Smith that she was getting the money
    ready for deposit, which meant that she would take it to the
    bank and there would be only $20 left in the register (instead
    of about $200). Nollen wrote, “I asked [Smith] what he wanted
    to do. He said let’s get it all.”
    According to Nollen, they went over to the office door.
    Smith then ran to the stairs and hid, and Nollen waited by the
    office door. After Mary Jo saw Nollen, he walked up to her
    and put his hand over her mouth so she would not scream.
    Nollen took her out to the hallway and instructed Smith to
    go and get the money. Smith got the money and put it in
    his pockets.
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    Nollen asked Mary Jo about her car, and she told him where
    it was. Nollen told Smith that he was going to get the car and
    that when Nollen honked the horn, Smith was to come out
    with Mary Jo. Smith complied. After the two of them got into
    the car with Nollen, he drove off. They stopped at a gas sta-
    tion, and Smith got out and put gas in the car, then went in
    and paid for it. After they left the gas station, Smith said he
    wanted to drive, so Smith and Nollen changed places. Smith
    drove around country roads while Nollen went through Mary
    Jo’s purse, took $20 and gave it to Smith, then threw her purse
    out the window.
    According to Nollen, Mary Jo had been sitting on the cen-
    ter console, so Nollen told her she could sit on his lap and
    pulled her toward him. Mary Jo slid over and sat on one of
    Nollen’s legs. Nollen started thinking about having sex with
    Mary Jo again. He wrote, “It was really intense now, because
    I could smell her perfume and feel how soft her skin is.”
    Nollen told Smith to pull over, and he did. Nollen forced
    Mary Jo into the back seat and climbed back there with her.
    He told Mary Jo to take her clothes off. Nollen tried to pen-
    etrate her with his penis, but was unsuccessful because Mary
    Jo kept pushing him away. Nollen said, “I was mad because
    I was not getting what I wanted, so I rubbed against her until
    I got off.” He then asked Smith “if he wanted to come back,”
    and Smith said that he did. The two switched places. Nollen
    could hear Smith telling Mary Jo to kiss him, and then Nollen
    “turned the radio up and started to figure out how [they] were
    going to get out of this.” Nollen wrote that he “knew that the
    only way would be to kill Mary Jo but, [he] did not know how
    it would happen.”
    Eventually, Smith and Nollen traded places again and Smith
    drove the car back toward Blair. Nollen told Mary Jo to get
    dressed, and he tied her hands up with a ribbon that had been
    around her neck. Nollen then got back in the front seat of the
    car. Smith drove the car through Blair to a trailer park “by
    the river.”
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    Smith and Nollen got out of the car and looked around.
    Nollen wrote, “We did not talk but, I think we both knew
    what was going to happen. I look at the bridge and thought we
    could throw her over the side. So I told [Smith] that when we
    get half way [sic] over the bridge to stop, he said okay . . . .”
    When the car got halfway across the bridge, Nollen got scared
    and worried that someone might see, so he told Smith to keep
    driving. Smith drove across the bridge and turned to go under-
    neath it. They pulled up to the second dock by the river. Nollen
    got out of the car, and Smith followed.
    Nollen wrote, “I figured, I would kill her by stabbing her
    [with a knife taken from the doughnut shop]. I asked [Smith]
    for the knife, he reached into the car and got it.” Nollen pulled
    the passenger seat forward and looked at Mary Jo. When
    Nollen brought the knife toward Mary Jo, she screamed and
    started crying. Nollen said he looked at her and told her he
    was sorry. She kept crying, and Nollen threw the knife into
    the river and told her, “‘[S]ee, I [sic] not going to hurt you.’”
    According to Nollen, after he told Smith that he “can not
    do this,” “[Smith] shrugged and leaned into the car.” Nollen
    wrote, “The car jumped forward and I jumped back. The car
    rolled down the dock into the river. I seen the car hit the water
    and I just stood there. . . . The car was still floating in the water
    when we left.”
    (b) Smith’s Statement
    In 1983, Smith was interviewed by a probation officer about
    the events that led to his kidnapping and burglary convictions.
    This interview was submitted as part of Smith’s presentence
    report, which was admitted into evidence.
    In the interview, Smith told the probation officer that when
    he agreed to rob the doughnut shop with Nollen, he thought
    they were just going to go in and get the money after the
    shop closed. His story was similar to Nollen’s, but with some
    differences. Smith did not mention anything about smoking
    marijuana in the basement. Also, as to Smith’s sexual assault
    of Mary Jo, Smith told the probation officer that Nollen asked
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    Smith if he wanted to get into the back of the car and that
    Smith said, “I guess so.” Smith said he “got into the back and
    started to rape her, but decided [he] couldn’t do it.”
    According to Smith, it was Nollen who drove the car across
    the bridge to the Iowa side. Smith also said that at the time the
    car was parked at the dock, he and Smith had not discussed
    what to do with Mary Jo. At that time, Nollen got into the
    back seat and tied Mary Jo’s hands behind her back. Next,
    Nollen started to roll the passenger’s side window down half-
    way and told Smith to do the same thing to the driver’s side
    window. Smith complied. According to Smith, Nollen told
    Smith to put the car in gear, and Smith complied. Nollen then
    aided the car into the river by pushing on it.
    (c) 1983 Psychological Evaluation
    About 1 month after Smith began serving his sentences, the
    Nebraska Department of Correctional Services conducted a
    psychological evaluation of Smith. During an interview for the
    evaluation, Smith again denied sexually assaulting Mary Jo.
    Smith’s evaluator wrote:
    Smith tends to be an impressionable individual and strikes
    this examiner as more of a follower than a leader. One
    gets the impression that his co-defendant tended to be the
    more dominant party in the relationship, and this seems to
    be true when one tries to visually reconstruct the events
    for which . . . Smith is currently incarcerated.
    The evaluator also wrote:
    [Smith] has little insight into the seriousness of his cur-
    rent offense. He is fairly overwhelmed by the prison
    environment and the length of his sentence. He is seen as
    having an elevated potential for violence based on test-
    ing. He may be susceptible to pressuring and negative
    peer influences.
    (d) 2015 Psychological Evaluation
    For purposes of the resentencing hearing, Smith’s coun-
    sel referred Smith to Dr. Matthew Huss for a current
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    psychological evaluation. Among other things, Dr. Huss eval-
    uated Smith’s social, educational, and occupational history.
    Dr. Huss also evaluated Smith’s history of drug and alcohol
    use and assessed Smith’s risk for general violence and sexual
    violence. The evidence set forth in Dr. Huss’ evaluation is
    summarized below.
    (i) Social History
    As a child, Smith lived mostly with his mother, his older
    sister, and two older brothers. From ages 9 to 12, Smith also
    lived with his stepfather and stepsiblings. Smith, Smith’s sis-
    ter, and Smith’s mother all described life with the stepfather as
    a difficult time. The stepfather was apparently very possessive
    and controlling of Smith’s mother, and he favored his own
    children over his stepchildren. Smith’s sister explained to Dr.
    Huss that because of the stepfather, all of the older siblings
    moved out as soon as they were able; Smith’s sister got mar-
    ried at age 16, and one brother enrolled in the Navy at age 17.
    Dr. Huss noted that Smith now has a good relationship with
    his family.
    Smith reported that as he was growing up, he generally
    got along with other children and had friends as well as girl-
    friends. His mother stated that Smith “‘was a magnet for older
    girls’” and was able to make friends without problems. At
    some point, Smith got married but divorced within a year. He
    admitted to an ongoing relationship with a woman he met in
    his childhood and that he would like to marry her if he were
    released from prison. However, he has told her to “live her life
    without him because of his sentence[s]” and is not naive that
    she will eventually move on one day.
    Smith denied any history of physical abuse as a child, but
    admitted to being sexually abused as a child and to being sex­
    ually assaulted while in prison by a cellmate. When Smith was
    in the fourth or fifth grade, his high-school-age stepbrother
    sexually assaulted him about six times. Smith said that in the
    1990’s, he was sexually assaulted by a cellmate, but was able
    to transfer cells in order to stop the assaults. Smith also stated
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    that when he was in the seventh grade, his stepgrandfather had
    tried to grope him, but Smith rejected his advances and the
    assault did not escalate.
    (ii) Educational and
    Occupational History
    Smith reported that he disliked school. He stated that he was
    placed in “‘learning disabled classes,’” which only made him
    like school less. Smith started skipping school in the fourth
    grade, about one or two times per month. Although Smith was
    suspended one time for getting caught smoking cigarettes,
    Smith denied ever getting into serious trouble at school. Smith
    completed the 10th grade and attended a few weeks of 11th
    grade before dropping out.
    After Smith completed the 10th grade, he performed a vari-
    ety of jobs. He worked for a local trash company, filling in
    whenever they called him. Smith “performed several lawn care
    jobs, painted and worked in the bean fields.” Smith’s mother
    stated that it was difficult for him to find work when he was 16
    years old “because the college kids in town would normally get
    the jobs teenagers could get.”
    Smith stated that he “‘always had a job’” while incarcer-
    ated. Smith admitted that before he got sober, he would fre-
    quently lose jobs for smoking marijuana. After Smith was
    transferred to Missouri, he worked in a carpentry shop. Smith
    also became involved as a trainer in the “Puppies for Parole”
    program, which allows offenders to train dogs and make them
    more adoptable at local shelters. According to the records
    of the Missouri Department of Corrections, Smith’s position
    training dogs is “an elite position (but with very little pay)”
    that requires offenders “to maintain exceptional behavior and
    attitude in order to remain a trainer.”
    (iii) History of Drug
    and Alcohol Use
    Smith reported that he first used alcohol when he was 10
    or 11 years old. Prior to his incarceration, Smith would drink
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    a couple of times per month. Smith said that when he drank,
    he would drink to excess, and that he “blacked out” a couple
    of times. During a 2- to 21⁄2-year period within the first 5 years
    of his incarceration, Smith drank alcohol one to two times per
    week, but he claimed to have quit using alcohol entirely when
    he was 29 years old.
    Smith reported that he first smoked marijuana when he was
    9 years old. Smith said that he rarely smoked marijuana before
    his incarceration, but that after incarceration and prior to get-
    ting sober, he would smoke anytime he could obtain marijuana.
    Smith said he last used marijuana when he was 34 years old.
    Smith denied using any drugs or alcohol after he was trans-
    ferred to Missouri in 2000. Smith’s progress reports from
    Missouri corroborate this; of the 47 urinalysis tests conducted
    over the course of 15 years, all of Smith’s samples were nega-
    tive for drugs or alcohol. However, there was a problem with
    one test. When Smith submitted a urine sample on April 16,
    2003, the test showed that his urine was diluted, and Smith
    received a misconduct report for the incident.
    (iv) Risk for General Violence
    and Sexual Violence
    Dr. Huss determined that, compared to the general commu-
    nity, Smith was at low risk to commit both general violence
    and sexual violence. As for general violence, Dr. Huss had
    initially determined that Smith was a “moderate risk,” but after
    reviewing Nollen’s statement, Dr. Huss amended his assess-
    ment to indicate that Smith was a “low risk.”
    (e) Misconduct Reports
    As noted above, Smith argued to the district court that
    he should be given a lenient sentence because the crimes
    he committed as a minor do not reflect that he is irredeem-
    ably depraved (and thus should spend his life in prison).
    To support Smith’s “‘capacity to change,’”4 he offered his
    4
    Brief for appellant at 44.
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    progress reports and misconduct reports from Missouri
    and Nebraska.
    The reports show that Smith had fewer misconduct reports
    after he entered into his mid-thirties. The decrease in miscon-
    duct reports also corresponds with the time that Smith was
    transferred to Missouri and the time that he became sober.
    According to Smith, he transferred to Missouri because he real-
    ized he needed to change.
    (f) Amici Briefs
    To support Smith’s arguments about his immaturity, vulner-
    ability, and lack of true depravity at the time of the crime, he
    offered amici briefs submitted to the U.S. Supreme Court in
    previous cases. We note that although the State did not object
    to the offering of the briefs, they provided minimal authority
    for the trial court.
    (g) Dr. Pope
    As further support for Smith’s argument that he should
    be given a lenient sentence, Smith offered into evidence
    a deposition of Dr. Pope, a director for neurobehavioral
    research at Boys Town National Research Hospital. Dr. Pope
    is board certified in child and adolescent psychiatry, as well as
    adult psychology.
    Dr. Pope testified about a landmark study in neurosci-
    ence wherein “Nitin Gogtay and Jay Giedd at the National
    Institute of Mental Health . . . scanned [the brains of] nor-
    mal developing children . . . between the ages of 5 and 20
    [over the course of 15 years].” From the scans, the research-
    ers were able to determine that the brain develops from the
    bottom to the top and from the back to the front. The study
    showed that the last part of the brain to develop is the frontal
    cortex. The frontal cortex allows for higher-order thought
    processes, like executive functioning, the ability to pay atten-
    tion to something, the ability to repress impulsivity, and the
    ability to think through emotional situations. The frontal cor-
    tex also helps regulate subcortical areas, like the amygdala.
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    The amygdala controls a person’s reaction to emotions, espe-
    cially fear.
    Dr. Pope explained that because adolescents’ prefrontal cor-
    tices have not fully developed, they do not have full cognitive
    regulation of emotional responses, and therefore, “adolescents
    . . . are easily angered. They misread emotional cues, they act
    impulsively.” Dr. Pope also testified that adolescents tend to
    undervalue risk and overvalue reward and are unable to appre-
    ciate the long-term consequences of their behavior. According
    to Dr. Pope, the frontal cortex does not fully develop until the
    mid-twenties.
    3. District Court’s Disposition
    During closing arguments, the State argued that Smith
    should receive a sentence equivalent to or similar in length to
    that of Smith’s codefendant, Nollen, who was resentenced to
    not less than 90 years nor more than life in prison. The State
    also suggested that Smith could be sentenced to life impris-
    onment pursuant to Miller.5 Smith objected to the State’s
    argument and alleged that the State’s suggestion that “this
    is a [Miller] case” was a breach of the 1983 plea agreement.
    Smith also moved to withdraw the 1983 plea agreement. After
    reviewing the plea agreement, the court overruled the objec-
    tion and the motion.
    Before announcing Smith’s sentence, the district court dis-
    cussed with Smith what it considered to be the relevant facts
    for purposes of sentencing:
    [Y]ou and . . . Nollen had opportunities to abandon the
    abduction and sexual assault and ultimate murder of
    [Mary Jo]. The two of you, as counsel indicated, were
    simply going to go in and burglarize the place and steal
    some money. [Mary Jo] was found there. You guys hid
    downstairs and she was found. Rather than running away
    out the back door, the two of you decided to abduct her.
    You then stole her car. I think you actually drove the car
    5
    Miller v. Alabama, supra note 3.
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    to a gas station here in Blair and you actually went inside
    and paid, as I recall.
    Obviously, I understand the argument that you were
    under the will of . . . Nollen, but there were opportunities
    to get away from this thing. You actually went into the
    gas station and paid for it. You could have gone away or
    done something different. You didn’t do that. . . .
    ....
    The evidence is clear that over a several-hour period
    you . . . had numerous opportunities to avoid the final
    decision to take the life of [Mary Jo], and it appears to me
    that you had a reasonably comparable level of culpability
    with . . . Nollen in the criminal activities that happened
    that day, including the final decision to put her body — or
    to put her in the back of the car and put the car into the
    Missouri River.
    In determining what sentence ought to be imposed
    upon the defendant, this Court has considered the nature
    and circumstances of the crime, the history, character,
    and condition of the defendant, including the defendant’s
    age, mentality, education, experience, social and cultural
    background, all as back in January of 1983, which was
    the date of the offense.
    The Court has considered the lack of a previous crimi-
    nal record of the defendant, the motivation for the offense,
    as well as the nature of the offense and the violence
    involved in the commission of the offense.
    ....
    . . . [T]he Court recognizes and acknowledges the
    efforts you have made to improve yourself over the last
    32 or 33 years, especially since 2000 when you made a
    decision to put yourself in a different venue to try and get
    yourself headed in the right direction, and you have done
    some good things. I acknowledge that from the [resen-
    tencing] hearing and what was — what was added to the
    presentence investigation report.
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    The Court can’t however . . . overlook the numerous
    opportunities you had to avoid the ultimate decision, and
    I do recognize the mitigating qualities of youth and the
    immaturity and the lack of development to the prefrontal
    cortex of the brain, the decision-making part, I acknowl-
    edge all those things.
    However, again, I look at the opportunities you had,
    the ultimate decision to drown [Mary Jo] in the man-
    ner in which it happened, the terror that was inflicted
    by you and . . . Nollen for several hours leading up to
    her death, and the manner in which she died has been
    described several ways today, but it’s horrific the way
    that she died.
    After citing the usual sentencing factors, as well as mitigat-
    ing factors set forth in Neb. Rev. Stat. § 28-105.02 (Reissue
    2016), the district court sentenced Smith to 90 years’ to life
    imprisonment. In advising Smith of his parole eligibility, the
    court was unsure of which good time law would apply—the
    law at the time Smith committed the crime or the current good
    time law. If the current good time law applies, Smith will be
    eligible for parole when he is 62 years old. If the 1983 good
    time law applies, Smith will be eligible for parole when he is
    77 years old.
    III. ASSIGNMENTS OF ERROR
    Smith assigns, restated, that the district court erred in over-
    ruling his objections and motions related to the State’s alleged
    breach of the plea agreement and that the district court abused
    its discretion in imposing an excessive sentence. Smith also
    assigns that the sentence of 90 years’ to life imprisonment
    is a “de facto sentence of life imprisonment without parole”
    in violation of Graham,6 the 8th and 14th Amendments to
    the U.S. Constitution, and article I, §§ 9 and 15, of the
    Nebraska Constitution.
    6
    Graham v. Florida, supra note 1.
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    IV. STANDARD OF REVIEW
    [1] When the facts are undisputed, the question of whether
    there has been a breach of a plea agreement is a question
    of law.7
    [2] Whether a sentence constitutes cruel and unusual punish-
    ment in violation of the Eighth Amendment presents a question
    of law.8 When reviewing a question of law, an appellate court
    reaches a conclusion independent of the lower court’s ruling.9
    [3] A sentence imposed within statutory limits will not be
    disturbed on appeal absent an abuse of discretion by the trial
    court. An abuse of discretion in imposing a sentence occurs
    when a sentencing court’s reasons or rulings are clearly unten-
    able and unfairly deprive the litigant of a substantial right and
    a just result.10
    V. ANALYSIS
    1. Plea Agreement
    [4] We first address Smith’s argument that the State breached
    the plea agreement and that the district court erred in overrul-
    ing his objection and motions for specific performance or with-
    drawal of the plea agreement. Smith is correct that when the
    State breaches a plea agreement, the defendant generally has
    the option of either having the agreement specifically enforced
    or withdrawing his or her plea.11 However, it is clear from the
    record that the State did not breach any of the terms or condi-
    tions in the plea agreement.
    [5] Smith claims that the State broke its promise to dis-
    miss the first degree murder charge when it argued that Smith
    7
    See, State v. Sidzyik, 
    281 Neb. 305
    , 
    795 N.W.2d 281
    (2011); State v.
    Gonzalez-Faguaga, 
    266 Neb. 72
    , 
    662 N.W.2d 581
    (2003).
    8
    See State v. Mantich, 
    287 Neb. 320
    , 
    842 N.W.2d 716
    (2014).
    9
    See, State v. Sims, 
    277 Neb. 192
    , 
    761 N.W.2d 527
    (2009); State v. Davis,
    
    276 Neb. 755
    , 
    757 N.W.2d 367
    (2008).
    10
    State v. Sanders, 
    269 Neb. 895
    , 
    697 N.W.2d 657
    (2005).
    11
    State v. Gonzalez-Faguaga, supra note 7.
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    should receive the same sentence as someone convicted of
    murder, i.e., life imprisonment. However, courts enforce only
    those terms and conditions about which the parties to a plea
    agreement did in fact agree,12 and nothing within the plea
    agreement restricted the State from recommending a life sen-
    tence. In fact, the record shows that at the time the agreement
    was entered into, the mandatory sentence for Smith’s crime of
    kidnapping, as well as for felony murder, was life imprison-
    ment. So, clearly, the parties contemplated that the State would
    advocate for Smith to receive life imprisonment. As such, the
    State did not breach the plea agreement, and the district court
    did not err in overruling Smith’s objections and motions related
    to that assertion.
    2. Good Time Law
    As noted above, the district court was unsure of which good
    time law would apply to Smith’s sentence—the current law or
    the law in effect at Smith’s original conviction. In the State’s
    brief and at oral argument, the State addressed issues relating
    to Smith’s sentence on the premise that Smith’s parole eligibil-
    ity would be calculated using current good time law; however,
    on rebuttal at oral arguments, Smith’s counsel advised the
    court that the Nebraska Department of Correctional Services
    had changed Smith’s parole eligibility date on its website and
    is now calculating Smith’s parole eligibility using the old good
    time law. If the current law applies, Smith will be eligible for
    parole when he is 62 years old. If the 1983 good time law
    applies, Smith will be eligible for parole when he is 77 years
    old. With both parties arguing the impact that Smith’s parole
    eligibility date has on this case, we shall first determine when
    Smith will be eligible for parole.
    [6-8] We conclude Smith will be eligible for parole on
    January 11, 2028, when Smith is 62 years old, because the
    current good time law is the correct law to be applied. In
    12
    See State v. Landera, 
    285 Neb. 243
    , 253, 
    826 N.W.2d 570
    , 577 (2013).
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    State v. Schrein,13 we held that the good time law to be
    applied to a defendant’s sentences is the law in effect at the
    time the defendant’s convictions become final. We explained
    that a defendant’s convictions and sentences become final on
    the date that the appellate court enters its mandate concerning
    the defendant’s appeal. Because an action for habeas corpus
    constitutes a collateral attack on a judgment and only void
    judgments may be collaterally attacked,14 the order granting
    Smith’s application for a writ of habeas corpus and vacat-
    ing his original life sentence voided that original sentence. A
    void sentence is no sentence.15 With Smith’s original kidnap-
    ping sentence being considered as having been no sentence
    imposed, then, the rule in Schrein would apply to Smith’s
    current kidnapping sentence of 90 years’ to life imprison-
    ment. This sentence will be final on the date this court enters
    its mandate concerning this appeal. Therefore, the applicable
    good time law is the law currently in effect, which means that
    Smith will be parole eligible at age 62.
    3. Smith’s Life Expectancy
    The parties also contend that Smith’s life expectancy is
    relevant to our constitutional analysis. Evidence of his life
    expectancy can be found in his presentence report. According
    to the federal government’s Centers for Disease Control and
    Prevention, a person of Smith’s age has an average life expect­
    ancy of 78.8 years old.
    The presentence report also contains a document entitled
    “Michigan Life Expectancy Data for Youth Serving Natural
    Life Sentences” which seems to suggest that the life expect­
    ancy of incarcerated youths is significantly reduced compared
    to that of the general population. This same document was
    13
    State v. Schrein, 
    247 Neb. 256
    , 
    526 N.W.2d 420
    (1995).
    14
    Berumen v. Casady, 
    245 Neb. 936
    , 
    515 N.W.2d 816
    (1994).
    15
    State v. McBride, 
    252 Neb. 866
    , 
    567 N.W.2d 136
    (1997); State v. Campbell,
    
    247 Neb. 517
    , 
    527 N.W.2d 868
    (1995).
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    also considered by the Supreme Courts of Iowa and Wyoming.
    And like those courts, “we do not believe the determination of
    whether the principles of Miller or Graham apply in a given
    case should turn on the niceties of epidemiology, genetic
    analysis, or actuarial sciences in determining precise mortal-
    ity dates.”16
    Although we decline to find that average life expectancy is
    the sole controlling issue, we acknowledge that it is a matter
    the court can consider along with all other sentencing factors.
    Here, the presentence report supports that the average life
    expectancy for someone Smith’s age is 78.8 years, and as dis-
    cussed above, Smith is eligible for release at 62 years of age.17
    Accordingly, Smith’s sentence of 90 years’ to life imprison-
    ment allows for parole eligibility almost 17 years before his
    average life expectancy.
    4. Constitutionality of
    K idnapping Sentence
    We next address the assignments of error relating to Smith’s
    kidnapping sentence. Smith claims that his sentence of 90
    years’ to life imprisonment is excessive and amounts to a
    de facto life sentence, in violation of Graham,18 the 8th and
    14th Amendments to the U.S. Constitution, and article I,
    §§ 9 and 15, of the Nebraska Constitution. We address Smith’s
    constitutional claim before addressing whether the sentence
    is excessive.
    First, we review the law on juvenile sentencing for non-
    homicide offenses. In Graham, the U.S. Supreme Court reaf-
    firmed that for purposes of sentencing, juvenile offenders
    are less culpable than adult offenders because (1) juveniles
    have “a ‘“lack of maturity and an underdeveloped sense of
    16
    State v. Null, 
    836 N.W.2d 41
    , 71 (Iowa 2013). Accord Bear Cloud v. State,
    
    334 P.3d 132
    (Wyo. 2014). See, Miller v. Alabama, supra note 3; Graham
    v. Florida, supra note 1.
    17
    See Neb. Rev. Stat. § 83-1,110 (Reissue 2014).
    18
    Graham v. Florida, supra note 1.
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    responsibility,”’” (2) they “‘are more vulnerable or susceptible
    to negative influences and outside pressures,’” and (3) their
    characters “are ‘not as well formed.’”19
    [9] Because of these differences, the Graham Court held
    that it is unconstitutional for a state to impose a sentence of
    life imprisonment without parole on a juvenile convicted of
    a nonhomicide offense.20 The Court in Graham explained
    that the Constitution requires that juvenile offenders be given
    “some meaningful opportunity to obtain release based on dem-
    onstrated maturity and rehabilitation,” but left it to the states,
    “in the first instance, to explore the means and mechanisms
    for compliance.”21
    We note that the U.S. Supreme Court has not decided the
    question whether a lengthy term-of-years sentence is, for con-
    stitutional purposes, the same as a sentence of life imprison-
    ment without the possibility of parole.22 However, a number of
    jurisdictions have concluded that such sentences may trigger
    the protections afforded under Graham and Miller.23 While
    Smith was not sentenced to life imprisonment without parole,
    we shall review the sentence to determine whether it comports
    with the principles set forth in Graham.
    Although the U.S. Supreme Court provided little guidance
    as to what constitutes a “meaningful opportunity to obtain
    19
    
    Id., 560 U.S.
    at 68 (quoting Roper v. Simmons, 
    543 U.S. 551
    , 
    125 S. Ct. 1183
    , 
    161 L. Ed. 2d 1
    (2005)).
    20
    Graham v. Florida, supra note 1.
    21
    
    Id., 560 U.S.
    at 75.
    
    22 U.S. v
    . Cobler, 
    748 F.3d 570
    (4th Cir. 2014), cert. denied ___ U.S. ___,
    
    135 S. Ct. 229
    , 
    190 L. Ed. 2d 173
    .
    23
    See, e.g., Casiano v. Commissioner of Correction, 
    317 Conn. 52
    , 
    115 A.3d 1031
    (2015), cert. denied ___ U.S. ___, 
    136 S. Ct. 1364
    , 194 L.
    Ed. 2d 376 (2016); Brown v. State, 
    10 N.E.3d 1
    (Ind. 2014); State v. Null,
    supra note 16; State v. Zuber, 
    442 N.J. Super. 611
    , 
    126 A.3d 335
    (2015),
    reversed 
    2017 WL 105004
    (N.J. Jan. 11, 2017); Bear Cloud v. State, supra
    note 16. See, also, Miller v. Alabama, supra note 3; Graham v. Florida,
    supra note 1.
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    release based on demonstrated maturity and rehabilitation,” a
    number of courts have held that sentences that allow the juve-
    nile offender to be released in his or her late sixties or early
    seventies satisfy the “meaningful opportunity” requirement.24
    The usual reasoning applied by these courts is that as long
    as the offender’s opportunity for release falls within his or
    her life expectancy, the offender’s sentence does not violate
    Graham.25 This was the reasoning applied by the Colorado
    Court of Appeals in holding that a sentence of 76 years’ to life
    imprisonment was not unconstitutional where it allowed for
    the defendant’s release at age 67.26 It was also the reasoning
    applied by a Florida court which held that a 50-year sentence
    that allowed for the defendant’s release at age 68 did not vio-
    late Graham.27
    As noted by Smith, other courts have interpreted Graham
    to mean that the juvenile offender must be released a certain
    number of years before his life expectancy.28 For example,
    in State v. Null,29 the Iowa Supreme Court held that a sen-
    tence with a mandatory minimum of 521⁄2 years’ imprisonment,
    which would have allowed the offender to be released at 69
    years old, triggered the protections afforded by Graham. In
    reaching this conclusion, the court stated:
    Even if lesser sentences than life without parole might be
    less problematic, we do not regard the juvenile’s potential
    24
    Graham v. Florida, supra note 
    1, 560 U.S. at 75
    . See, People v. Lehmkuhl,
    
    369 P.3d 635
    (Colo. App. 2013); Williams v. State, 
    197 So. 3d 569
    (Fla.
    App. 2016); State v. Zuber, supra note 23. See, also, Silva v. McDonald,
    
    891 F. Supp. 2d 1116
    (C.D. Cal. 2012); Thomas v. State, 
    78 So. 3d 644
          (Fla. App. 2011).
    25
    See, Silva v. McDonald, supra note 24; People v. Lehmkuhl, supra note 24;
    Williams v. State, supra note 24; Thomas v. State, supra note 24.
    26
    People v. Lehmkuhl, supra note 24.
    
    27 Will. v
    . State, supra note 24.
    28
    Casiano v. Commissioner of Correction, supra note 23; State v. Null, supra
    note 16; and Bear Cloud v. State, supra note 16.
    29
    State v. Null, supra note 16.
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    future release in his or her late sixties after a half cen-
    tury of incarceration sufficient to escape the rationales
    of Graham or Miller. The prospect of geriatric release,
    if one is to be afforded the opportunity for release at all,
    does not provide a “meaningful opportunity” to demon-
    strate the “maturity and rehabilitation” required to obtain
    release and reenter society as required by Graham.30
    In Casiano v. Commissioner of Correction,31 the Connecticut
    Supreme Court held that the principles set forth in Graham
    must be applied to a sentence of 50 years’ imprisonment with-
    out parole. Quoting Graham, the Connecticut Supreme Court
    reasoned that “a fifty year term and its grim prospects for any
    future outside of prison effectively provide a juvenile offender
    with ‘no chance for fulfillment outside prison walls, no chance
    for reconciliation with society, no hope.’”32
    After reviewing other jurisdictions’ interpretation of
    Graham, we conclude that there appears to be no consensus
    as to what constitutes a meaningful opportunity for release.
    However, because Smith will be parole eligible at age 62,
    we do not agree that his sentence represents a “geriatric
    release”33 or equates to “‘no chance for fulfillment outside
    prison walls,’”34 because in today’s society, it is not unusual
    for people to work well into their seventies and have a mean-
    ingful life well beyond age 62 or even at age 77. Like the court
    in State v. Zuber,35 we also “do not believe Graham mandates
    that defendants have a ‘meaningful life outside of prison’
    in which to ‘engage meaningfully’ in a career or raising a
    30
    State v. Null, supra note 
    16, 836 N.W.2d at 71
    . See, Miller v. Alabama,
    supra note 3; Graham v. Florida, supra note 1.
    31
    Casiano v. Commissioner of Correction, supra note 23.
    32
    
    Id. at 79,
    115 A.3d at 1047.
    33
    State v. Null, supra note 
    16, 836 N.W.2d at 71
    .
    34
    Casiano v. Commissioner of Correction, supra note 23, 317 Conn. at 
    79, 115 A.3d at 1047
    .
    35
    State v. Zuber, supra note 23, 442 N.J. Super at 
    631, 126 A.3d at 347
    .
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    ­family.” Rather, Graham requires only a meaningful and real-
    istic opportunity to obtain release.36
    Overall, after considering all sentencing factors, we con-
    clude that Smith’s kidnapping sentence does not violate the
    principles set forth in Graham and that Smith’s assignment of
    error is without merit.
    5. Whether K idnapping
    Sentence Is Excessive
    The only remaining issue is whether the district court abused
    its discretion in imposing Smith’s kidnapping sentence. We
    find it did not.
    [10,11] 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.37 Relevant factors customarily considered and
    applied are 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 amount of violence involved in the commission
    of the crime.38 Because Smith was under the age of 18 when
    he committed a Class IA felony, § 28-105.02 dictates that the
    sentencing judge must also consider mitigating factors, such as
    the defendant’s (1) age at the time of the offense, (2) impetuos-
    ity, (3) family and community environment, and (4) ability to
    appreciate risks and consequences of the conduct, as well as
    (5) the outcome of a comprehensive mental health evaluation
    of the defendant conducted by an adolescent mental health pro-
    fessional licensed in Nebraska.
    36
    
    Id. 37 State
    v. Cardeilhac, 
    293 Neb. 200
    , 
    876 N.W.2d 876
    (2016).
    38
    
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    The district court considered each of the factors listed above
    and so stated at the sentencing hearing. The court received
    considerable evidence as to Smith’s life, history, maturity, and
    susceptibility to peer pressure at the time of the crime. At the
    sentencing hearing, the judge stated that he understood Smith’s
    argument that he was “under the will of . . . Nollen,” and
    the court “recognize[d] the mitigating qualities of youth and
    the immaturity and the lack of development to the prefrontal
    cortex of the brain, the decision-making part.” However, in
    imposing Smith’s kidnapping sentence, the court emphasized
    the horrific nature of the crime and “the numerous opportu-
    nities [Smith] had to avoid the ultimate decision [to drown
    Mary Jo].”
    Having reviewed the record and the evidence considered
    by the court at sentencing, we cannot say that the sentence
    imposed was an abuse of discretion. Certainly, Smith desires a
    minimal sentence, but the reality is that even in nonhom­icide
    cases, sometimes the factors set forth by Nebraska law require
    lengthy terms of incarceration. We conclude that Smith’s
    assignment of error challenging his kidnapping sentence is
    without merit.
    VI. CONCLUSION
    We find Smith’s assignments of error to be without merit
    and affirm his sentence of 90 years’ to life imprisonment.
    A ffirmed.