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State v. Berney

Supreme Court of Nebraska

June 20, 2014

STATE OF NEBRASKA, APPELLEE,
v.
MATTHEW BERNEY, APPELLANT

Appeals from the District Court for Douglas County: SHELLY R. STRATMAN, Judge.

Thomas C. Riley, Douglas County Public Defender, and John P. Ashford for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL JJ. HEAVICAN, C.J., not participating.

OPINION

Page 733

[288 Neb. 378] Wright, J.

NATURE OF CASE

Matthew Berney pled no contest to two counts of burglary. The district court held a habitual criminal enhancement hearing under Neb. Rev. Stat. § 29-2221 (Reissue 2008) and determined Berney to be a habitual criminal. He was sentenced to a term of 10 to 10 years' imprisonment for each conviction, and the court ordered the terms be served consecutively. Berney appeals, arguing that the court imposed excessive sentences and abused its discretion by imposing consecutive mandatory minimum sentences on the enhanced convictions. We affirm his convictions and his sentences of 10 to 10 years' imprisonment for each conviction, but we remand the cause for a determination by the sentencing court whether the sentences are to be served concurrently or consecutively.

SCOPE OF REVIEW

An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013).

Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination. State v. Smith, 286 Neb. 77, 834 N.W.2d 799 (2013).

FACTS

On April 22, 2013, as part of a plea agreement, Berney pled no contest to two counts of burglary. On August 28, the district court held a habitual criminal enhancement

Page 734

hearing. It received evidence that Berney had at least two felony convictions, had served a minimum prison sentence of 1 year with the Nebraska Department of Correctional Services, and was represented by counsel during the prior proceedings. The court found that the prior convictions met the criteria of § 29-2221 for being a habitual criminal. It then found Berney to be a habitual criminal.

[288 Neb. 379] At sentencing, the district court reviewed a presentence investigation prepared and submitted by the state probation office and a sentencing memorandum prepared by Berney's counsel. The court heard testimony that Berney had spent much of his adult life struggling with methamphetamine addiction. Berney's attorney conveyed a message from Berney's mother that drug abuse made him someone his family did not recognize, but that when he was not on drugs, he tried " to do good things for other people." ...


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