State v. Kennedy , 299 Neb. 362 ( 2018 )


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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. KENNEDY
    Cite as 
    299 Neb. 362
    State of Nebraska, appellant, v.
    Chad T. K ennedy, appellee.
    ___ N.W.2d ___
    Filed March 16, 2018.    No. S-17-703.
    1.	 Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law, which an appellate court reviews independently of the lower
    court’s determination.
    2.	 Sentences: Appeal and Error. Whether an appellate court is reviewing
    a sentence for its leniency or its excessiveness, a sentence imposed by
    a district court that is within the statutorily prescribed limits will not
    be disturbed on appeal unless there appears to be an abuse of the trial
    court’s discretion.
    3.	 Statutes. It is a general principle of statutory construction that to the
    extent there is a conflict between two statutes, the specific statute con-
    trols over the general statute.
    4.	 Statutes: Intent: Appeal and Error. When interpreting a statute, effect
    must be given, if possible, to all the several parts of a statute; no sen-
    tence, clause, or word should be rejected as meaningless or superflu-
    ous if it can be avoided. An appellate court must look to the statute’s
    purpose and give to the statute a reasonable construction which best
    achieves that purpose, rather than a construction which would defeat it.
    5.	 Probation and Parole. Neb. Rev. Stat. § 29-2268(2) (Reissue 2016)
    does not authorize a probationer to be “unsatisfactorily” discharged
    or terminated from post-release supervision early as the result of
    a violation.
    6.	 Courts: Probation and Parole. Once a district court finds a viola-
    tion of post-release supervision, it is authorized by Neb. Rev. Stat.
    § 29-2268 (Reissue 2016) to take one of two paths: It can either revoke
    post-release supervision and impose a term of imprisonment up to the
    remaining period of post-release supervision under subsection (2), or it
    can find that revocation is not appropriate and order one or more of the
    dispositions authorized by subsection (3).
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    STATE v. KENNEDY
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    299 Neb. 362
    7.	 Sentences. Pursuant to Neb. Rev. Stat. § 29-2323(1) (Reissue 2016), if
    an appellate court determines a sentence is excessively lenient, it may
    set aside the sentence and either (a) remand the case for imposition of a
    greater sentence, (b) remand the case for further sentencing proceedings,
    or (c) impose a greater sentence.
    8.	 Due Process: Sentences: Probation and Parole. The same hearing pro-
    cedures and due process protections that apply when a court considers
    a motion to revoke probation apply when a court considers a motion to
    revoke post-release supervision.
    Appeal from the District Court for Sarpy County: George
    A. Thompson, Judge. Vacated and remanded for further
    proceedings.
    Lee Polikov, Sarpy County Attorney, and Nicole R. Hutter
    for appellant.
    Liam K. Meehan, of Schirber & Wagner, L.L.P., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
    Funke, JJ.
    Stacy, J.
    After finding Chad T. Kennedy had violated his post-release
    supervision, the district court terminated it “unsatisfactorily.”
    The State appeals, claiming this resulted in an excessively
    lenient sentence that was not authorized by law. We vacate
    the district court’s order and remand the cause for further pro-
    ceedings consistent with this opinion.
    FACTS
    Kennedy was charged in the Sarpy County District Court
    with one count of operating a motor vehicle to avoid arrest
    (Class IV felony)1 and one count of willful reckless driving
    (Class III misdemeanor). On February 9, 2017, he pled guilty
    to an amended information charging him with only the felony
    offense. Kennedy requested immediate sentencing and waived
    1
    Neb. Rev. Stat. § 28-905(3)(a)(iii) (Reissue 2016).
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    his right to a presentence investigation. He asked not to be
    placed on probation. The court imposed a sentence of 240
    days in jail and 9 months of post-release supervision. He was
    given credit for 150 days already served, and it appears he was
    released from jail the same day he was sentenced.2
    In April 2017, the State filed what it captioned a “Motion for
    Revocation of Probation.” It is clear from the record the intent
    was to seek revocation of Kennedy’s post-release supervision.
    The motion to revoke stated that Kennedy was “in violation
    of his probation order dated February 9, 2017” in that he had
    “failed to show for his scheduled probation appoint[ment]s and
    has failed to provide probation with a valid address or con-
    tact information.”
    At the hearing on the motion to revoke, Kennedy admitted
    he had violated the conditions of his post-release supervision
    and explained he had done so because he was incarcerated
    in Douglas County on an unrelated matter. He told the court
    he had been in custody in Douglas County for 40 days and
    expected to be released “in another 32” and given 6 months’
    probation in a “rehab and halfway house.” The court accepted
    Kennedy’s admission and found he had violated the terms and
    conditions of his post-release supervision.
    The court then asked counsel how they wished to pro-
    ceed. Defense counsel advised “the cleanest thing would just
    be to terminate him unsuccessfully from supervision” and
    “they’ll take that into consideration in sentencing in Douglas
    County.” The State disagreed. It argued the court lacked statu-
    tory authority to unsuccessfully terminate post-release supervi-
    sion and suggested instead that “a sentencing order consist­
    ent with his [remaining] post release supervision term would
    be appropriate.”
    The court stated:
    I’m going to note for the record a couple things:
    . . . Kennedy is under the jurisdiction and custody of
    2
    See Neb. Rev. Stat. §§ 47-502 and 47-503 (Reissue 2010).
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    the fourth judicial district at this point in time and pend-
    ing charges there. Certainly we did the transport order
    to get him here. And the point and purpose of post
    release supervision is to provide guidance and/or track
    for defendants to be able to follow that is being currently
    set up with Douglas County. And as a result of that he
    can’t comply with our post release supervision because
    he’s in custody in Douglas County. So, based upon the
    admission, the court is going to find . . . Kennedy has
    violated the terms and conditions of his post release
    supervision.
    The court is going to terminate probation [as being]
    unsatisfactory. And that will be the judgment and order
    [of] the court. [Kennedy is] remanded to the custody of
    the sheriff.
    The court’s minute entry specifically noted that the court was
    not “revok[ing]” Kennedy’s probation. The following day, on
    June 20, 2017, the court entered what it styled a “Judgment and
    Sentence” that provided in relevant part:
    [Kennedy] was personally advised of his conviction
    for the crime of Count 1: Operating a motor vehicle to
    avoid arrest, felony offense, a class IV felony, pursuant
    to his plea of guilty and judgment of conviction entered
    on February 9, 2017, and [Kennedy’s] admission to the
    Motion to Revoke Probation entered on June 19, 2017
    and offered no good or sufficient reason why a sentence
    should not be imposed for such crime. The Court termi-
    nated the Post Release Supervision.
    IT IS THEREFORE ORDERED that the Post Release
    Supervision is hereby terminated as unsatisfactorily.
    The Sarpy County Attorney, with the consent of the Attorney
    General (State), timely appealed, alleging the sentence imposed
    was excessively lenient.3 We moved the case to our docket on
    our own motion and set it for oral argument.
    3
    See Neb. Rev. Stat. §§ 29-2320 and 29-2321 (Reissue 2016).
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    STATE v. KENNEDY
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    299 Neb. 362
    ASSIGNMENTS OF ERROR
    The State assigns, restated, that the district court (1) abused
    its discretion in imposing an excessively lenient sentence not
    authorized by Neb. Rev. Stat. § 29-2268 (Reissue 2016) and
    (2) committed plain error by imposing a sentence outside the
    statutory limits.
    STANDARD OF REVIEW
    [1] Statutory interpretation presents a question of law, which
    an appellate court reviews independently of the lower court’s
    determination.4
    [2] Whether an appellate court is reviewing a sentence for
    its leniency or its excessiveness, a sentence imposed by a dis-
    trict court that is within the statutorily prescribed limits will
    not be disturbed on appeal unless there appears to be an abuse
    of the trial court’s discretion.5
    ANALYSIS
    Post-release supervision is a relatively new concept in
    Nebraska sentencing law.6 Last year, in State v. Phillips,7 this
    court had its first opportunity to address the procedure for
    imposing a term of post-release supervision under § 29-2204.02.
    The issues presented in the instant appeal provide our first
    opportunity to address the procedure when moving to revoke
    such a term.
    As a threshold matter, we observe that the Legislature
    has defined “[p]robationer” to mean “a person sentenced
    to probation or post-release supervision.”8 Similarly, it has
    4
    State v. Carman, 
    292 Neb. 207
    , 
    872 N.W.2d 559
    (2015); State v. Draper,
    
    289 Neb. 777
    , 
    857 N.W.2d 334
    (2015).
    5
    State v. Moore, 
    274 Neb. 790
    , 
    743 N.W.2d 375
    (2008).
    6
    See Neb. Rev. Stat. §§ 28-105 (Supp. 2017) and 29-2204.02 (Reissue
    2016).
    7
    State v. Phillips, 
    297 Neb. 469
    , 
    900 N.W.2d 522
    (2017).
    8
    Neb. Rev. Stat. § 29-2246(5) (Reissue 2016).
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    defined “[p]robation” to “include[] post-release supervision.”9
    “Post-release supervision” is defined to mean “the portion
    of a split sentence following a period of incarceration under
    which a person found guilty of a crime upon verdict or
    plea is released by a court subject to conditions imposed
    by the court and subject to supervision by the [Office of
    Probation Administration].”10 The Legislature has instructed
    that these statutory definitions apply for purposes of the
    Nebraska Probation Administration Act11 “unless the context
    otherwise requires.”12
    As such, the Nebraska Probation Administration Act
    sometimes refers to probation and post-release supervision
    interchangeably,13 and other times, separately.14 This may
    explain why, in the present case, the State filed a motion
    to revoke “probation” even though Kennedy had been sen-
    tenced to a term of incarceration followed by a term of post-
    release supervision. The trial court used the same vernacular
    in its June 20, 2017, sentencing order. Particularly because the
    available disposition differs slightly based on whether a pro-
    bationer is alleged to have violated the terms of his or her pro-
    bation or post-release supervision,15 we encourage courts, and
    officers of the courts, to be precise when taking up motions
    to revoke.
    § 29-2268
    Violations of probation and post-release supervision are
    governed by § 29-2268, which provides:
    9
    § 29-2246(4).
    10
    § 29-2246(13).
    11
    Neb. Rev. Stat. §§ 29-2246 to 29-2269 (Reissue 2016).
    12
    § 29-2246.
    13
    See, e.g., §§ 29-2250, 29-2251, 29-2258, 29-2262, and 29-2267.
    14
    See, e.g., §§ 29-2263(2) and (3) and 29-2268(1) and (2).
    15
    See § 29-2268(1) and (2).
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    (1) If the court finds that the probationer, other than a
    probationer serving a term of post-release supervision, did
    violate a condition of his or her probation, it may revoke
    the probation and impose on the offender such new sen-
    tence as might have been imposed originally for the crime
    of which he or she was convicted.
    (2) If the court finds that a probationer serving a term
    of post-release supervision did violate a condition of his
    or her post-release supervision, it may revoke the post-
    release supervision and impose on the offender a term of
    imprisonment up to the remaining period of post-release
    supervision. The term shall be served in an institution
    under the jurisdiction of the Department of Correctional
    Services or in county jail subject to subsection (2) of sec-
    tion 28-105.
    (3) If the court finds that the probationer did violate a
    condition of his or her probation, but is of the opinion that
    revocation is not appropriate, the court may order that:
    (a) The probationer receive a reprimand and warning;
    (b) Probation supervision and reporting be intensified;
    (c) The probationer be required to conform to one
    or more additional conditions of probation which may
    be imposed in accordance with the Nebraska Probation
    Administration Act;
    (d) A custodial sanction be imposed on a probationer
    convicted of a felony, subject to the provisions of section
    29-2266.03; and
    (e) The probationer’s term of probation be extended,
    subject to the provisions of section 29-2263.
    Section 29-2268(1) is not applicable to Kennedy because it
    expressly excludes those on post-release supervision from the
    definition of probationer. Thus, the question presented here
    is whether the district court had authority, pursuant to either
    § 29-2268(2) or (3), to terminate post-release supervision
    “unsatisfactorily” after finding a violation.
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    STATE v. KENNEDY
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    299 Neb. 362
    The State argues that upon finding a violation of post-
    release supervision, the district court had only two options
    under § 29-2268: It could either revoke post-release supervi-
    sion pursuant to § 29-2268(2) and impose a term of incarcera-
    tion up to the remainder of the post-release supervision term
    or it could find that revocation is not appropriate and enter an
    order pursuant to § 29-2268(3)(a) through (e).
    Kennedy argues the district court had a third option: It could
    discharge him from post-release supervision altogether under
    § 29-2263. We address this argument first, and find it has
    no merit.
    § 29-2263 Does Not Authorize
    Unsatisfactory Discharge
    Section 29-2263 addresses both probation16 and post-release
    supervision,17 and provides in pertinent part:
    When a court has sentenced an offender to post-release
    supervision, the court shall specify the term of such
    post-release supervision as provided in section 28-105.
    The court, on application of a probation officer or of the
    probationer or on its own motion, may discharge a proba-
    tioner at any time.18
    Kennedy argues the second sentence of § 29-2263(2) gave
    the district court authority to enter an order terminating his
    post-release supervision “unsatisfactorily” once it found a vio-
    lation.19 He urges us to interpret § 29-2263(2) to apply in
    circumstances where a violation of post-release supervision
    has been found and asks that we equate “discharge” under
    § 29-2263(2) with being “terminated unsatisfactorily.”20 We
    decline to do either.
    16
    § 29-2263(1) and (3) through (5).
    17
    § 29-2263(2) through (5).
    18
    § 29-2263(2).
    19
    Brief for appellee at 6.
    20
    
    Id. - 370
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    [3] Section 29-2263 generally governs a court’s power to
    impose, modify, and discharge a person from probation and
    post-release supervision. In contrast, § 29-2268 specifically
    governs violations of probation and post-release supervision
    and thus is the more specific statute. It is a general principle
    of statutory construction that to the extent there is a conflict
    between two statutes, the specific statute controls over the
    general statute.21
    More importantly, the early discharge permitted by
    § 29-2263(2) is incompatible with “unsatisfactory” termina-
    tion. Section 29-2263(4) explains that “[u]pon completion of
    the term of probation, or the earlier discharge of the proba-
    tioner, the probationer shall be relieved of any obligations
    imposed by the order of the court and shall have satisfied the
    sentence for his or her crime.”
    [4] When interpreting a statute, effect must be given, if pos-
    sible, to all the several parts of a statute; no sentence, clause,
    or word should be rejected as meaningless or superfluous if it
    can be avoided.22 An appellate court must look to the statute’s
    purpose and give to the statute a reasonable construction which
    best achieves that purpose, rather than a construction which
    would defeat it.23
    [5] Because an early discharge under § 29-2263(2) results
    in satisfying the sentence imposed, it cannot be reconciled
    with “unsatisfactorily” completing the sentence. We thus
    hold that once the State invoked the revocation process
    under § 29-2268 and the district court found a violation
    of post-release supervision, the court was not empowered,
    21
    See State v. Hernandez, 
    283 Neb. 423
    , 
    809 N.W.2d 279
    (2012).
    22
    See, Keller v. Tavarone, 
    265 Neb. 236
    , 
    655 N.W.2d 899
    (2003); Omaha
    Pub. Power Dist. v. Nebraska Dept. of Revenue, 
    248 Neb. 518
    , 
    537 N.W.2d 312
    (1995).
    23
    See, In re Estate of Fries, 
    279 Neb. 887
    , 
    782 N.W.2d 596
    (2010);
    TracFone Wireless v. Nebraska Pub. Serv. Comm., 
    279 Neb. 426
    , 
    778 N.W.2d 452
    (2010).
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    at that point, to invoke the early discharge provisions of
    § 29-2263(2).24
    Only Dispositions for Violations
    of Post-R elease Supervision
    A re Those Enumerated in
    § 29-2268(2) and (3)
    [6] We agree with the State that once the district court
    found a violation of post-release supervision, it was autho-
    rized by § 29-2268 to take one of two paths: It could either
    revoke post-release supervision and impose a term of impris-
    onment up to the remaining period of post-release supervision
    under subsection (2), or it could find that revocation was not
    appropriate and order one or more of the dispositions autho-
    rized by subsection (3). Stated differently, once a violation of
    post-release supervision is found, a district court may proceed
    under either subsection (2) or subsection (3) of § 29-2268, but
    the statutory language does not authorize any disposition not
    therein enumerated.
    Before considering whether the district court was proceeding
    under subsection (2) or subsection (3) of § 29-2268, we pause
    to address a jurisdictional question raised by Kennedy.
    Jurisdiction Over This Appeal
    Kennedy, relying on State v. Caniglia,25 argues this court
    lacks jurisdiction over the instant appeal, because no sentence
    was imposed that the State may challenge as excessively
    lenient. We disagree.
    In Caniglia, the defendant was convicted in Sarpy County
    District Court of driving under the influence in August 2003.
    At the time, she was on intensive supervision probation in
    Douglas County for another conviction of driving under the
    24
    Accord State v. Caniglia, 
    272 Neb. 662
    , 668, 
    724 N.W.2d 316
    , 320 (2006)
    (in probation revocation proceeding, § 29-2268 does not authorize district
    court to order probation “terminated as unsuccessful”).
    25
    Caniglia, supra note 24.
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    influence. The Sarpy County court sentenced her to proba-
    tion, to be served concurrently with the Douglas County pro-
    bation. Both probation orders required that she refrain from
    using alcohol.
    In December 2004, the State moved to revoke the Sarpy
    County probation, alleging the defendant was using alcohol,
    which the defendant admitted. At the hearing on the motion to
    revoke, the evidence showed the defendant already had been
    terminated from her Douglas County probation for using alco-
    hol. The revocation in Douglas County resulted in her serving
    15 days in jail and having her driver’s license revoked for
    15 years. After noting what had occurred in Douglas County,
    the Sarpy County court found a probation violation, and
    then, without ruling on the motion to revoke, terminated the
    defend­ant’s probation as “‘unsuccessful.’”26
    The State appealed the district court’s order pursuant to a
    statute authorizing the State to appeal “the sentence imposed”
    if it reasonably believes the sentence is excessively lenient.27
    We held the district court had not imposed a sentence at all,
    thus, this statute did not authorize the State’s appeal. In doing
    so, we analyzed the version of § 29-2268 in effect at the time
    (which is substantially similar to the current version, minus
    the specific inclusion of post-release supervision). We noted
    that pursuant to the terms of the statute, once the district court
    found a violation of probation it
    was authorized to revoke probation and impose a sen-
    tence, to reprimand and warn the probationer, to intensify
    supervision, to impose additional terms of probation, or
    to extend the term of probation. The district court did
    none of the above. Instead, the district court ordered the
    probation “terminated as unsuccessful.” This was neither
    an authorized order nor a sentence.28
    26
    
    Id. at 665,
    724 N.W.2d at 318.
    27
    See § 29-2320.
    28
    Caniglia, supra note 
    24, 272 Neb. at 667-68
    , 724 N.W.2d at 320.
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    Based on this rationale, we found there was no appel-
    late jurisdiction, because no “sentence” had been imposed
    that could be challenged as excessively lenient pursuant to
    § 29-2320.
    Here, the State also seeks to challenge the sentence as
    excessively lenient and relies on the same statute at issue
    in Caniglia, which requires a challenge from “the sentence
    imposed.”29 But unlike in Caniglia, the district court here ruled
    on the motion to revoke by determining revocation was not
    appropriate, and then proceeded to enter a sentencing order
    which purported to modify the sentence of post-release super-
    vision by terminating it unsatisfactorily. As such, the jurisdic-
    tional concerns present in Caniglia are not present here. We
    conclude that the district court’s order of June 20, 2017, is
    a sentencing order from which the prosecuting attorney may
    appeal under § 29-2320. We proceed to consider the merits
    of the State’s contention that the sentencing order was exces-
    sively lenient.
    Court Was Not Proceeding
    Under § 29-2268(2)
    In the present case, after finding Kennedy had violated his
    post-release supervision, the district court made clear it was
    not revoking that supervision as authorized by § 29-2268(2).
    However, Kennedy suggests the court’s sentencing order
    should be construed to have had the practical effect of revok-
    ing probation and imposing a term of “zero months” of
    imprisonment.30
    We rejected a similar argument in Caniglia. In that case,
    we refused to infer a term of imprisonment when one was not
    expressly stated, reasoning that when imposing a sentence, a
    court must state with care the precise terms of the sentence
    and that imposition of a sentence in a revocation of probation
    29
    See § 29-2320.
    30
    Brief for appellee at 9.
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    context is deserving of the same clarity expected when the
    initial sentence is imposed.31
    We apply the same reasoning here and conclude the district
    court’s order cannot reasonably be interpreted to have revoked
    probation and imposed a term of “zero months” of imprison-
    ment, when the court expressly held it was not revoking super-
    vision and expressed no precise term of sentence. The district
    court was not proceeding under § 29-2268(2) when it opted not
    to revoke Kennedy’s post-release supervision, but, rather, to
    terminate it unsatisfactorily.
    Court Attempted to Proceed Under
    § 29-2268(3), But Erred
    Subsection (3) of § 29-2268 allows a court, after finding a
    violation of probation or post-release supervision, to decide
    that revocation is not appropriate, and instead order:
    (a) The probationer receive a reprimand and warning;
    (b) Probation supervision and reporting be intensified;
    (c) The probationer be required to conform to one
    or more additional conditions of probation which may
    be imposed in accordance with the Nebraska Probation
    Administration Act;
    (d) A custodial sanction be imposed on a probationer
    convicted of a felony, subject to the provisions of section
    29-2266.03; and
    (e) The probationer’s term of probation be extended,
    subject to the provisions of section 29-2263.
    Here, after finding a violation, the court made clear it was
    not revoking Kennedy’s post-release supervision. We find that
    portion of the district court’s decision was authorized by
    § 29-2268(3). But having elected not to revoke post-release
    supervision, the court was limited to the dispositions enu-
    merated in § 29-2268(3). Because the sentencing order did
    not impose any disposition authorized by subsection (3), that
    31
    Caniglia, supra note 24.
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    portion of the court’s order was erroneous and resulted in an
    excessively lenient sentence.
    Vacate With Directions
    [7] For all of these reasons, the portion of the sentencing
    order which purported to terminate unsatisfactorily Kennedy’s
    post-release supervision as a result of a violation was not
    authorized by statute, was erroneous, and resulted in an
    excessively lenient sentence.32 Pursuant to Neb. Rev. Stat.
    § 29-2323(1) (Reissue 2016), if an appellate court determines
    a sentence is excessively lenient, it may set aside the sentence
    and either (a) remand the case for imposition of a greater sen-
    tence, (b) remand the case for further sentencing proceedings,
    or (c) impose a greater sentence. We conclude it is appropri-
    ate to remand the cause for further sentencing proceedings
    consistent with the applicable statutes33 and Kennedy’s due
    process rights.34
    [8] For the sake of completeness, we remind the parties and
    the court that the Legislature has established the procedure to
    be followed when a motion to revoke probation is filed,35 and
    this court has identified the minimum due process protections
    required at probation revocation hearings.36 We now expressly
    hold these same hearing procedures and due process protec-
    tions apply when the court is considering a motion to revoke
    a term of post-release supervision. On remand, these proce-
    dures should be followed.
    32
    See, State v. McBride, 
    252 Neb. 866
    , 
    567 N.W.2d 136
    (1997); State v.
    Bensing, 
    249 Neb. 900
    , 
    547 N.W.2d 464
    (1996); State v. Campbell, 
    247 Neb. 517
    , 
    527 N.W.2d 868
    (1995).
    33
    §§ 29-2267 and 29-2268.
    34
    See, e.g., State v. Johnson, 
    287 Neb. 190
    , 
    842 N.W.2d 63
    (2014); State v.
    Shambley, 
    281 Neb. 317
    , 
    795 N.W.2d 884
    (2011).
    35
    See § 29-2267(1) and (2).
    36
    See, e.g., Johnson, supra note 34; Shambley, supra note 34.
    - 376 -
    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. KENNEDY
    Cite as 
    299 Neb. 362
    CONCLUSION
    Once the district court found a violation of post-release
    supervision and decided it was not appropriate to revoke
    supervision, it was authorized by § 29-2268(3) to either (a)
    order a reprimand or warning, (b) intensify supervision or
    reporting, (c) impose additional conditions of probation, (d)
    impose custodial sanctions, or (e) extend the term of proba-
    tion. Because it did none of these and instead erroneously
    terminated post-release supervision altogether, we vacate the
    sentencing order of June 20, 2017, as excessively lenient, and
    remand the cause for further proceedings not inconsistent with
    this opinion.
    Vacated and remanded for
    further proceedings.
    K elch, J., not participating in the decision.
    Wright, J., not participating.