State v. Huston , 298 Neb. 323 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    01/05/2018 01:13 AM CST
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    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    STATE v. HUSTON
    Cite as 
    298 Neb. 323
    State of Nebraska, appellee, v.
    Brianna L. Huston, appellant.
    ___ N.W.2d ___
    Filed December 1, 2017.   No. S-17-267.
    1.	 Sentences: Appeal and Error. An appellate court will not disturb a sen-
    tence imposed within the statutory limits absent an abuse of discretion
    by the trial court.
    2.	 Criminal Law: Statutes: Sentences: Legislature. Where a criminal
    statute is amended by mitigating the punishment, after the commission
    of a prohibited act but before final judgment, the punishment is that
    provided by the amendatory act unless the Legislature has specifically
    provided otherwise.
    3.	 Appeal and Error. An appellate court is not obligated to engage in an
    analysis that is not necessary to adjudicate the case and controversy
    before it.
    Appeal from the District Court for Hall County, M ark J.
    Young, Judge, on appeal thereto from the County Court for
    Hall County, Philip M. M artin, Jr., Judge. Sentence vacated,
    and cause remanded with directions.
    Robert W. Alexander, Deputy Hall County Public Defender,
    for appellant.
    Douglas J. Peterson, Attorney General, and Siobhan E.
    Duffy for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
    Funke, JJ.
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    STATE v. HUSTON
    Cite as 
    298 Neb. 323
    K elch, J.
    NATURE OF CASE
    Brianna L. Huston was sentenced to jail time and probation
    after pleading guilty to first-offense driving during revocation.
    In addition to this sentence, the county court for Hall County
    ordered a revocation of Huston’s driver’s license for 1 year,
    believing that such was required under this court’s interpreta-
    tion of 
    Neb. Rev. Stat. § 60-4
    ,108 (Cum. Supp. 2016) set forth
    in State v. Frederick.1 On appeal, the district court for Hall
    County affirmed. Huston subsequently appealed the revocation
    portion of her sentence to this court.
    While Huston’s appeal was pending, 2017 Neb. Laws, L.B.
    263, went into effect, which amended § 60-4,108 to allow
    the sentencing court discretion in ordering a revocation for
    first-time offenders when the offender has been placed on
    probation.2 Because we determine that the amended version
    of § 60-4,108 applies retroactively to Huston’s sentence, we
    vacate Huston’s sentence in its entirety and remand the cause
    to the district court with directions to remand it to the county
    court for resentencing consistent with the amended version of
    § 60-4,108.
    FACTS
    In July 2016, Huston was charged with driving during
    revocation, second or third offense. In November, she pled
    guilty to an amended charge of first-offense driving during
    revocation. In exchange for Huston’s plea, the State agreed to
    a sentence of 45 days’ jail time and to not oppose Huston’s
    request for house arrest. The county court sentenced Huston
    to 45 days’ jail time and 6 months’ probation and revoked her
    license for 1 year.
    In revoking Huston’s license, the county court found that it
    was obligated to do so by State v. Frederick, which involved
    1
    State v. Frederick, 
    291 Neb. 243
    , 
    864 N.W.2d 681
     (2015).
    2
    See 2017 Neb. Laws, L.B. 263, § 65.
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    STATE v. HUSTON
    Cite as 
    298 Neb. 323
    another appellant convicted of driving during revocation.3 In
    Frederick, we found no merit to the appellant’s assignment
    of error and affirmed his conviction. Although neither party
    assigned or argued it, we found that the sentencing court
    committed plain error when it failed to revoke the appellant’s
    driver’s license. We said that revocation was required by
    § 60-4,108(1)(a), which, at the time Frederick was issued (and
    at the time Huston was sentenced), stated in relevant part:
    [For a first offense of driving during revocation,] the
    court shall, as a part of the judgment of conviction, order
    such person not to operate any motor vehicle for any pur-
    pose for a period of one year from the date ordered by the
    court and also order the operator’s license of such person
    to be revoked for a like period . . . . Such [order] shall be
    administered upon sentencing, upon final judgment of any
    appeal or review, or upon the date that any probation is
    revoked, whichever is later.
    Huston appealed her sentence to the district court, which
    affirmed the county court’s sentencing order, finding no abuse
    of discretion.
    Huston then timely appealed the district court’s order in
    March 2017. The parties’ briefs were filed in May and June.
    Effective August 24, 2017, L.B. 263 amended § 60-4,108.
    Prior to L.B. 263, § 60-4,108(1)(a) provided that for a first
    offense under that section, “the court shall . . . order the
    operator’s license of such person to be revoked for [a period
    of 1 year].” L.B. 263 added the phrase, “unless the person was
    placed on probation, then revocation may be ordered at the
    court’s discretion.”
    ASSIGNMENT OF ERROR
    Huston assigns that the district court erred in affirming the
    county court’s decision to revoke her driver’s license and its
    decision that the revocation must begin immediately.
    3
    See State v. Frederick, supra note 1.
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    STATE v. HUSTON
    Cite as 
    298 Neb. 323
    STANDARD OF REVIEW
    [1] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court.4
    ANALYSIS
    Before addressing Huston’s assigned errors, we turn our
    attention to the State’s assertion that L.B. 263 would amend
    § 60-4,108 and that if the change went into effect while
    Huston’s appeal was still pending, then the amendment might
    affect Huston’s sentence under State v. Randolph.5
    [2] In State v. Randolph, we held that where a criminal
    statute is amended by mitigating the punishment, after the
    commission of a prohibited act but before final judgment,
    the punishment is that provided by the amendatory act unless
    the Legislature has specifically provided otherwise.6 But, the
    Randolph doctrine does not apply if the Legislature created
    a “new crime” rather than merely changing the penalty for
    an existing crime.7 Here, the amended version of § 60-4,108
    changed only the punishment.
    Section 60-4,108 was amended after Huston committed the
    offense of driving during revocation, but before final judg-
    ment. If a defendant appeals his or her sentence, the sentence
    is not a final judgment until the entry of a final mandate.8
    Because we have not yet entered a final mandate on Huston’s
    appeal of her sentence, the judgment is not yet final. Thus, if
    the amendment to § 60-4,108 mitigates Huston’s punishment,
    then Huston’s punishment is that provided by the amended
    version of § 60-4,108, unless the Legislature has specifically
    provided otherwise.
    4
    State v. Lantz, 
    290 Neb. 757
    , 
    861 N.W.2d 728
     (2015).
    5
    State v. Randolph, 
    186 Neb. 297
    , 
    183 N.W.2d 225
     (1971).
    6
    
    Id.
    7
    See State v. Duncan, 
    291 Neb. 1003
    , 
    870 N.W.2d 422
     (2015).
    8
    
    Id.
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    STATE v. HUSTON
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    298 Neb. 323
    We conclude that Huston’s punishment is that provided by
    the amended version of § 60-4,108. The Legislature has not
    provided otherwise, and the amendment to § 60-4,108 miti-
    gates the punishment for Huston’s offense. Before the amend-
    ment, under our interpretation set forth in State v. Frederick,
    § 60-4,108 required that a defendant convicted of first-offense
    driving during revocation have his or her driver’s license
    revoked for a period of 1 year regardless of whether that
    defend­ ant was placed on probation.9 After the amendment,
    if the defendant is placed on probation, revocation is not
    necessarily required.10 Accordingly, the amended version of
    § 60-4,108 allows for a more lenient punishment, i.e., miti-
    gates the punishment, and therefore it applies retroactively to
    Huston’s sentence. Because it applies retroactively, then, the
    county court should have had discretion in deciding whether to
    revoke Huston’s driver’s license.
    We acknowledge that Huston’s current sentence, including
    the revocation portion, is within the statutory limits of the past
    version of § 60-4,108; and even under the amended version
    of the statute, the county court could order a 1-year period of
    revocation in its discretion. However, here, the county court
    was bound by the law at the time of sentencing, was required
    to impose a period of revocation, and was unable to exercise
    its discretion.
    As a matter of plain error, therefore, we conclude that
    Huston is entitled to retroactive relief under L.B. 263.11
    Consequently, we vacate Huston’s sentence and remand the
    cause to the district court with directions to remand it to the
    county court for resentencing consistent with the amended ver-
    sion of § 60-4,108.
    [3] Because we conclude that the amended version of
    § 60-4,108 applies retroactively to Huston’s sentence and
    9
    See State v. Frederick, supra note 1.
    10
    See 2017 Neb. Laws, L.B. 263, § 65.
    11
    See State v. Chacon, 
    296 Neb. 203
    , 
    894 N.W.2d 238
     (2017).
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    STATE v. HUSTON
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    298 Neb. 323
    remand the cause for resentencing, we need not consider
    Huston’s assignment of error. An appellate court is not obli-
    gated to engage in an analysis that is not necessary to adjudi-
    cate the case and controversy before it.12
    CONCLUSION
    For the reasons set forth above, we conclude that the
    amended version of § 60-4,108 applies retroactively to
    Huston’s sentence. Under the amended version, the county
    court has discretion in deciding whether to impose a period of
    revocation. Because the county court was unable to exercise
    its discretion at the time of Huston’s sentencing, we vacate
    Huston’s sentence in its entirety and remand the cause to
    the district court with directions to remand it to the county
    court for resentencing consistent with the amended version of
    § 60-4,108.
    Sentence vacated, and cause
    remanded with directions.
    Wright, J., not participating.
    12
    Doty v. West Gate Bank, 
    292 Neb. 787
    , 
    874 N.W.2d 839
     (2016).