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

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/03/2017 09:08 AM CST
- 957 -
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.
- 958 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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).
- 959 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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).
- 960 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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.
- 961 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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.
- 962 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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.”
- 963 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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
- 964 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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
- 965 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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
- 966 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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
- 967 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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.
- 968 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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.
- 969 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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.
- 970 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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.
- 971 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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.
- 972 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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.
- 973 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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).
- 974 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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).
- 975 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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.
- 976 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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.
- 977 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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.
- 978 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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.
- 979 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
­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
Id.
- 980 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. SMITH
Cite as 295 Neb. 957
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.