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State v. Russell

Supreme Court of Nebraska

June 5, 2015

STATE OF NEBRASKA, APPELLEE,
v.
CORY L. RUSSELL, APPELLANT

Page 814

[Copyrighted Material Omitted]

Page 815

Appeal from the District Court for Colfax County: MARY C. GILBRIDE, Judge.

Bryan C. Meismer for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

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

OPINION

Page 816

[291 Neb. 34] Cassel, J.

INTRODUCTION

Cory L. Russell appeals from his plea-based conviction and sentence for sexual assault of a child in the first degree. He argues that because he was not correctly advised of the 15-year " mandatory minimum," his plea was not entered knowingly. To resolve the appeal, we (1) explain the distinction, in this context, between " minimum" and " mandatory minimum" ; (2) determine the correct range of penalties; (3) conclude that the error was not prejudicial; and (4) describe why the different [291 Neb. 35] good time calculation for a " mandatory minimum" does not affect the validity of the plea.

BACKGROUND

The controlling statute states, " Sexual assault of a child in the first degree is a Class IB felony with a mandatory minimum sentence of fifteen years in prison for the first offense." [1] The general statute prescribing the range of penalties for a Class IB felony specifies a " [m]inimum" of 20 years' imprisonment and a " [m]aximum" of life imprisonment.[2]

The State filed an information charging Russell with 27 counts of sexual assault of a child in the first degree. Pursuant to a plea agreement, the State agreed to file an amended information charging Russell with only one count of that offense in return for Russell's plea of no contest to the charge. ...


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