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.
Judges: Words and Phrases. A judicial abuse of discretion
exists when the reasons or rulings of a trial judge are
clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters
submitted for disposition.
Sentences: Due Process: Appeal and Error. Whether the
district court's resentencing of a defendant following a
successful appeal violates the defendant's due process
rights presents a question of law.
Judgments: Appeal and Error. When reviewing questions of law,
an appellate court resolves the questions independently of
the conclusion reached by the lower court.
Sentences. When imposing a sentence, a sentencing judge
should consider the following factors related to the
defendant: (1) age, (2) mentality, (3) education and
experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, (6)
motivation for the offense, (7) nature of the offense, and
(8) amount of violence involved in the commission of the
Criminal Law: Sentences: Minors: Aggravating and Mitigating
Circumstances. Neb. Rev. Stat. § 28-105.02(2) (Reissue
2016) includes a nonexhaustive list of mitigating factors
that a sentencing court must take into consideration when
sentencing a juvenile for a Class IA felony.
Sentences. In considering a sentence, a court is not limited
in its discretion to any mathematically applied set of
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 and circumstances surrounding the defendant's life.
It is within a trial court's discretion to direct that
sentences imposed for separate crimes be served either
concurrently or consecutively.
Constitutional Law: Minors: Sentences. Life imprisonment
without the possibility of parole for juveniles convicted of
nonhomicide offenses is unconstitutional; such juvenile
offenders must be given some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.
Constitutional Law: Homicide: Minors: Sentences. There is no
categorical bar against life sentences without parole for
juveniles convicted of homicide offenses; instead, the
sentencing court must consider specific, individualized
factors before handing down a sentence of life imprisonment
without parole for a juvenile.
Process: New Trial: Convictions: Sentences. Due process of
law requires that vindictiveness against a defendant for
having successfully attacked his first conviction must play
no part in the sentence he receives after a new trial.
Sentences: Presumptions: Appeal and Error. There is no
presumption of vindictiveness when a sentence is increased
after a successful appeal of the prior conviction if a
different judge or jury handed down the second, harsher
Sentences: Presumptions: Proof. When the presumption of
vindictiveness is not applied, the burden remains with the
defendant to prove actual vindictiveness.
from the District Court for Douglas County: Peter C.
Bataillon, Judge. Affirmed.
C. Riley, Douglas County Public Defender, and Annie O. Hayden
Douglas J. Peterson, Attorney General, and Stacy M. Foust for
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
October 2010, the appellant, Juan E. Castaneda, was convicted
by a jury of two counts of first degree felony murder, one
count of attempted second degree murder, one count of
attempted robbery, one count of criminal conspiracy, and
three counts of use of a deadly weapon to commit a felony. He
was sentenced as follows: life imprisonment for each first
degree murder; 10 to 20 years' imprisonment for attempted
second degree murder, to be served concurrently with all; 10
to 15 years' imprisonment for attempted robbery, to be
served concurrently with all but its respective weapon
conviction; 10 to 15 years' imprisonment for criminal
conspiracy, to be served concurrently with all; and 10 to 15
years' imprisonment for each weapon conviction, to be
served consecutively only with each respective first degree
murder or attempted robbery conviction.
direct appeal, we affirmed Castaneda's convictions,
vacated all his sentences, and remanded the cause for
resen-tencing. We vacated Castaneda's life sentences
under the U.S. Supreme Court's decision in Miller v.
Alabama We also vacated his other sentences
because the sentencing court committed plain error by
ordering Castaneda's weapon sentences to run concurrently
with other sentences, instead of consecutively with all other
sentences as required by law.
a full evidentiary hearing and arguments, Castaneda was
resentenced in accordance with Nebraska statutes. Castaneda
appeals his resentencing. We affirm.
events underlying Castaneda's eight convictions and
sentences involve three shootings that occurred in three
separate locations in Omaha, Nebraska, within an hour. In our
opinion on Castaneda's direct appeal, we set forth the
facts of the case in detail.
individuals responsible for the crimes were Edgar Cervantes,
Eric Ramirez, and Castaneda. The State entered into a plea
agreement with Cervantes to dismiss the murder charges
against him in exchange for his testimony.
to Cervantes, in November 2008, he asked Ramirez if he wanted
"to go rob some people." That same evening,
Castaneda accompanied Cervantes and Ramirez when they left a
party to give Jacob Shantz a ride home. While Cervantes was
driving to Shantz' residence, he removed a gun from under
his seat and gave it to Ramirez.
dropping Shantz off at his home, the three men drove to 13th
and Dorcas Streets in Omaha. While at that location,
Cervantes stayed in the vehicle and Ramirez and Castaneda
exited the vehicle. Ramirez and Castaneda approached two
males, later identified as Mark and Charles McCormick.
According to the McCormicks, the two men, one of them armed,
came up to them as they were leaving their cousin's
residence. The men demanded money but retreated after Charles
threatened them with a "piece of wood" or
thereafter, at about 10:45 p.m., all three men drove to 16th
and Dorcas Streets where they encountered Luis Silva inside
his vehicle outside of his home. Ramirez and Castaneda
approached Silva to rob him. Castaneda pulled Silva from his
vehicle, and Ramirez fatally shot him.
at about 11 p.m., Cervantes, Ramirez, and Castaneda drove to
50th Street and Underwood Avenue where they observed a man,
later identified as Charles Denton, walk up to an automatic
teller machine. When Denton saw two men approaching, he
returned to his vehicle and started to drive away with his
passenger. The two men, Ramirez and Castaneda, ran toward
Denton's vehicle, and one reached the driver's side
window and demanded money. The man also fired his gun at the
vehicle, striking Denton. Denton survived his injuries.
three men then drove south until they reached 5 2d and
Leavenworth Streets. At that location, they saw Tari
Glinsmann leaving a gas station. Cervantes stopped the
vehicle, and Ramirez and Castaneda got out. According to
Cervantes. Castaneda pulled Glinsmann from her vehicle and
Ramirez fatally shot her. The statement about Glinsmann's
murder was supported by video evidence and Castaneda's
handprint on the hood of her car. While Cervantes said that
Ramirez told him Glinsmann had no money, she was found with
cash, jewelry, and the keys to the gas station, where she had
worked and had just finished her shift.
time of the shootings, Castaneda was 15 years 11 months old.
As previously mentioned, Castaneda was convicted of two
counts of first degree felony murder, one count of attempted
second degree murder, one count of attempted robbery, one
count of criminal conspiracy, and three counts of use of a
deadly weapon to commit a felony. Castaneda was sentenced to
life imprisonment for each first degree murder and 10 to 20
years' imprisonment for attempted murder, with each
sentence to run concurrently with the other. He was further
sentenced to 10 to 15 years' imprisonment for attempted
robbery, to be served concurrently with all but its
respective weapon conviction; 10 to 15 years'
imprisonment for criminal conspiracy, to be served
concurrently with all; and 10 to 15 years' imprisonment
for each weapon conviction, to be served consecutively only
with each respective first degree murder or attempted robbery
direct appeal, we affirmed Castaneda's
convictions.While the appeal was pending, however, the
U.S. Supreme Court decided Miller We rejected the
State's argument that Miller should not apply to
Castaneda's life in prison sentences, because
Nebraska's penalty statute did not contain the qualifier
"without parole." We held that a sentence of life
in prison in Nebraska essentially contains no possibility of
parole, because parole is available only upon a
sentence's being commutated, which-as '"an ad
hoc exercise of executive clemency'"-is a distinctly
different concept than parole as a matter of law.
Accordingly, we vacated Castaneda's life sentences for
first degree felony murder. We also vacated his other
sentences, because the sentencing court committed plain error
by ordering Castaneda's use of a deadly weapon to commit
a felony sentences to run concurrently with his other
sentences, instead of consecutively with all other sentences
as required by § 28-1205(3). We remanded the cause for
remand, the cause was assigned to a different district judge,
as the original judge had retired. Before resentencing, a
full evidentiary resentencing hearing was held. At that
hearing, Castaneda called three witnesses: Beverly Shields, a
juvenile detention specialist at the Douglas County Youth
Center at the time Castaneda was housed there prior to trial;
Dr. Kirk Newring, a psychologist who interviewed Castaneda
shortly before resentencing; and Dr. Colleen Conoley, an
adolescent neuropsychologist who completed an evaluation on
Castaneda in 2014.
testified that Castaneda was a model prisoner and "was
the best kid [she] ever worked with" during her
employment at the youth center. Newring testified as to the
prison culture and the effects of segregation on a person.
Conoley testified about Castaneda's current mental
status, having been diagnosed as schizophrenic; the
maturation process of the adolescent brain; and her belief
that Castaneda is not a high risk to reoffend "at this
point of his development."
a presentence report was ordered for sentencing. The
presentence report included, in part, the following
information: Conoley's evaluation of Castaneda; the
police reports of the crimes; letters from the victims'
friends and families; Castaneda's age at the time of his
crimes; Castaneda's prior criminal history of graffiti,
theft by unlawful taking, shoplifting, and disorderly
conduct; Castaneda's overall grade point average from
seventh to ninth grades of 3.58, high school diploma, and
paralegal studies certificate; Castaneda's involvement in
the "Must Be Criminal security threat group";
Castaneda's score as a high risk to reoffend on the
"LS/CMI, " a risk/needs assessment tool; a summary
of Castaneda's 56 misconduct reports from his
incarceration: 45 reports between February 4, 2011, and
January 21, 2012, and 11 reports between September 14, 2012,
and March 24, 2015; and Castaneda's probation
officer's recommendation that Castaneda be incarcerated
"for a very long time to come."
resentencing hearing, the court heard arguments by counsel
for Castaneda and the State. The court pronounced the
following prison sentences: 40 to 50 years for each first
degree murder conviction, 10 to 10 years for attempted second
degree murder, 5 to 5 years for the attempted robbery, 5 to 5
years for criminal conspiracy, and 5 to 5 years for each
weapon conviction. The criminal conspiracy and attempted
robbery sentences were ordered to run concurrently with each
other and with the attempted murder sentence. All other
sentences were ordered to run consecutively ...