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State v. Castaneda

Supreme Court of Nebraska

January 13, 2017

State of Nebraska, appellee,
v.
Juan E. Castaneda, appellant.

         1. 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.

         2. 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.

         3. 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.

         4. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the conclusion reached by the lower court.

         5. 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 crime.

         6. 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.

         7. Sentences. In considering a sentence, a court is not limited in its discretion to any mathematically applied set of factors.

         8. ___. 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.

         9. ___. It is within a trial court's discretion to direct that sentences imposed for separate crimes be served either concurrently or consecutively.

         10. 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.

         11. 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.

         12. Due 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.

         13. 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 sentence.

         14. Sentences: Presumptions: Proof. When the presumption of vindictiveness is not applied, the burden remains with the defendant to prove actual vindictiveness.

         Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge. Affirmed.

          Thomas C. Riley, Douglas County Public Defender, and Annie O. Hayden for appellant.

          Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.

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

          FUNKE, J.

         INTRODUCTION

         In 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.

         On direct appeal, we affirmed Castaneda's convictions, vacated all his sentences, and remanded the cause for resen-tencing.[1] We vacated Castaneda's life sentences under the U.S. Supreme Court's decision in Miller v. Alabama[2] 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.[3]

         Following a full evidentiary hearing and arguments, Castaneda was resentenced in accordance with Nebraska statutes. Castaneda appeals his resentencing. We affirm.

         BACKGROUND

         The 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.[4]

         The 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.

         According 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.

         After 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 "tree stump."

         Shortly 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.

         Then, 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.

         The 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.

         At the 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 conviction.

         On direct appeal, we affirmed Castaneda's convictions.[5]While the appeal was pending, however, the U.S. Supreme Court decided Miller[6] 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'"[7]-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 re sentencing.

         Upon 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.

         Shields 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."

         Additionally, 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."

         At the 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 ...


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