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State v. Aguallo

Supreme Court of Nebraska

July 15, 2016

State of Nebraska, appellee,
v.
Manuel A. Aguallo, appellant.

         1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.

         2. Criminal Law: Statutes: Legislature: Sentences. Generally, if the Legislature amends a criminal statute 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 specifically provided otherwise.

         3. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

         4. Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the language; neither is it within the province of a court to read anything plain, direct, or unambiguous out of a statute.

         5. Statutes: Legislature: Intent. In reading a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

         6. ___: ___: ___. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

         7. Sentences: Legislature: Intent: Time. The Legislature did not intend penalty reductions made in 2015 to Class IIIA felonies to apply retroactively to offenses committed prior to August 30, 2015.

          [294 Neb. 178] 8. Appeal and Error: Words and Phrases. Plain error exists where there is error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

         Appeal from the District Court for Box Butte County: Travis P. O'Gorman, Judge.

          Bell Island, of Island & Huff, PC, L.L.O., for appellant.

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

          Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

          STACY, J.

         Manuel A. Aguallo appeals his sentence for sexual assault of a child, third degree. He contends the district court erred in failing to retroactively apply recent statutory amendments which reduced the penalty for Class IIIA felonies. We find the reduced penalty provisions do not apply to Aguallo, and we affirm his conviction and sentence.

         FACTS

         On March 4, 2015, the State filed an information charging Aguallo with sexual assault of a child, third degree, in violation of Neb. Rev. Stat. § 28-320.01 (Reissue 2008). The offense was alleged to have occurred on or about January 25, 2015. He entered a plea of no contest on July 17. On September 9, he was sentenced to a prison term of 59 to 60 months.

         At sentencing, the district court considered the effect of certain amendments made to Nebraska's sentencing laws by 2015 Neb. Laws, L.B. 605. We describe some of LB. 605's changes while reciting the facts of the sentencing hearing, and we analyze the applicability of those legislative changes later in the opinion.

          [294 Neb. 179] L.B. 605 amended Nebraska law to, among other things, reduce the penalties for a variety of felonies. Before L.B. 605. Class IIIA felonies were punishable by a maximum of 5 years' imprisonment, a $10, 000 fine, or both, with no minimum term of imprisonment.[1] L.B. 605 reduced the maximum term of imprisonment for Class IIIA felonies from 5 to 3 years and added maximum and minimum terms of postrelease supervision.[2]

         L.B. 605 also amended the indeterminate sentencing scheme for Nebraska felonies. Prior to L.B. 605, Neb. Rev. Stat. § 29-2204 (Reissue 2008) required the court to

fix the minimum and maximum limits of the sentence to be served within the limits provided by law for any class of felony other than a Class IV felony .... If the criminal offense is a Class IV felony, the court shall fix the minimum and maximum limits of the sentence, but the minimum limit fixed by the court shall not be . . . more than one-third of the maximum term . . . .[3]

         Thus, as it existed before L.B. 605, § 29-2204 authorized indeterminate sentencing for all felonies and, except for Class IV felonies, courts could impose an indeterminate sentence with identical minimum and ...


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