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State v. Smith

Supreme Court of Nebraska

August 8, 2014

STATE OF NEBRASKA, APPELLEE,
v.
BRIAN D. SMITH, APPELLANT

As Amended August 14, 2014.

Page 666

Appeal from the District Court for Washington County: JOHN E. SAMSON, Judge.

APPEAL DISMISSED.

Jeffery A. Pickens, of Nebraska Commission on Public Advocacy, for appellant.

Jon Bruning, Attorney General, and James D. Smith and appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 667

Stephan, J.

In 1983, when he was 16 years old, Brian D. Smith was convicted of burglary and kidnapping. He was sentenced to [288 Neb. 798] life in prison for the kidnapping and to a term of 5 to 20 years' imprisonment for the burglary. In 2013, Smith filed a motion seeking to have his life sentence declared void and set aside pursuant to the decision of the U.S. Supreme Court in Graham v. Florida. [1] The district court for Washington County dismissed the motion after concluding it lacked jurisdiction to consider it. Smith appeals from that dismissal.

BACKGROUND

In February 1983, Smith was charged in Washington County with burglary, robbery, kidnapping, and first degree sexual assault. Each offense was allegedly committed on or about January 11. Following plea negotiations, Smith pled guilty to burglary and kidnapping, and the remaining charges and a felony murder charge pending in a separate proceeding were dismissed. The factual basis of the charges was that Smith broke into a doughnut shop and abducted an employee of the shop. At the time of the plea hearing on March 21, the victim had not been found. But both the prosecutor and Smith acknowledged that there was no reasonable probability that she was still alive.

At the sentencing hearing on May 2, 1983, the prosecutor advised the court that the victim's body had been recovered. Because then, as now, kidnapping was a Class IA felony in the absence of statutory mitigating factors not present in this case, the court imposed the mandatory sentence of life imprisonment.[2] The court also imposed a concurrent sentence of 5 to 20 years' imprisonment on the burglary conviction. Smith was 16 years old when he committed his crimes and 17 years old at the time of his sentencing.

Although Smith remains in the custody of the Nebraska Department of Correctional Services, he is incarcerated in Missouri pursuant to an inmate transfer. On January 3, 2013, he filed a pro se " Motion to Correct Illegal, Unconstitutional [288 Neb. 799] and Void Sentence" in the district court for Washington County. In that motion, he alleged that his life sentence was " illegal, unconstitutional, and void" under the decision of the U.S. Supreme Court in Graham v. Florida.[3] In that case, decided in 2010, the Court held that " the Constitution ...


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