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State v. Eric Benavides

Supreme Court of Nebraska

September 30, 2016

State of Nebraska, appellee,
v.
Eric Benavides, appellant.

         1. Statutes. Statutory interpretation presents a question of law.

         2. Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

         3. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         4. Criminal Law: Statutes: Legislature: Time. Unless an exception applies, 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.

         5. Statutes: Legislature: Intent: Appeal and Error. A court gives statutory language its plain and ordinary meaning and will not look beyond the statute to determine legislative intent when the words are plain, direct, and unambiguous.

         6. Statutes: Legislature: Intent. A court gives effect to the purpose and intent of the Legislature as ascertained from the entire language of a statute considered in its plain, ordinary, and popular sense.

         7. ____: ____:____ . 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.

         8. Sentences: Statutes: Time: Probation and Parole. The nonretroactive provision under Neb. Rev. Stat. § 28-105(7) (Supp. 2015) broadly applies to penalty changes created by 2015 Neb. Laws, L.B. 605, which changes include changes to a penalty of probation.

         [294 Neb. 903] 9. Sentences: Statutes: Presumptions: Probation and Parole. The presumption under Neb. Rev. Stat. § 29-2204.02 (Supp. 2015) in favor of probation for Class IV felony convictions unless an exception applies is a penalty change.

         10. Sentences: Statutes: Legislature: Intent: Probation and Parole. The Legislature did not intend for the penalty changes under Neb. Rev. Stat. § 29-2204.02 (Supp. 2015) in favor of a sentence of probation for Class IV felony convictions to be retroactive.

         11. Sentences. In imposing a sentence, a sentencing court is not limited to any mathematically applied set of factors. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts surrounding the defendant's life.

         12. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         Appeal from the District Court for Madison County: James G. Kube, Judge. Affirmed.

          Chelsey R. Hartner, Chief Deputy Madison County Public Defender, for appellant.

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

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

          FUNKE, J.

         NATURE OF CASE

         Eric Benavides appeals from the district court's order sentencing him for a Class IV felony conviction of domestic assault of a pregnant female. The assault occurred in June 2015. In August 2015, the Legislature's enactment of L.B. 605 became effective, [1] which bill changed many sentencing provisions. One of L.B. 605's provisions requires [294 Neb. 904] courts to "impose a sentence of probation" for Class IV felony convictions unless an exception applies and the court states its reasoning; this requirement is codified as Neb. Rev. Stat. § 29-2204.02(2) (Supp. 2015).[2] In November 2015, the court sentenced Benavides to an indeterminate term of 12 to 18 months' incarceration. Benavides contends that the court erred in sentencing him to a term of incarceration, contrary to the requirements of § 29-2204.02 and general sentencing guidelines.

         We granted the State's petition to bypass the Court of Appeals because Benavides' appeal presented an issue of first impression: whether the Legislature's sentencing changes for Class IV felonies are retroactive. We conclude that the issue is controlled by our recent decision in State v. Aguallo[3] and that the changes are not retroactive. We affirm.

         BACKGROUND

         Relevant Sentencing Changes Under L.B. 605

         Section 29-2204.02 is a new statute created by L.B. 605.[4]In relevant part, § 29-2204.02 requires a sentence of probation for a defendant convicted of a Class IV felony unless an exception applies and the court states its reasoning on the record:

(2) If the criminal offense is a Class IV felony, the court shall impose a sentence of probation unless:
(a) The defendant is concurrently or consecutively sentenced to imprisonment for any felony other than ...

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