Breach of Contract: Plea Bargains. When the
facts are undisputed, the question of whether there has been
a breach of a plea agreement is a question of law.
Constitutional Law: Sentences: Words and Phrases:
Appeal and Error. Whether a sentence constitutes
cruel and unusual punishment in violation of the Eighth
Amendment presents a question of law. When reviewing a
question of law, an appellate court reaches a conclusion
independent of the lower court's ruling.
Sentences: Appeal and Error. A sentence
imposed within statutory limits will not be disturbed on
appeal absent an abuse of discretion by the trial court. An
abuse of discretion in imposing a sentence occurs when a
sentencing court's reasons or rulings are clearly
untenable and unfairly deprive the litigant of a substantial
right and a just result.
Plea Bargains: Specific Performance: Pleas.
When the State breaches a plea agreement, the defendant
generally has the option of either having the agreement
specifically enforced or withdrawing his or her plea.
Courts: Plea Bargains. Courts enforce only
those terms and conditions about which the parties to a plea
agreement did in fact agree.
Sentences: Statutes: Time. The good time law
in effect at the time a defendant's convictions become
final is the law that is to be applied to the defendant's
Convictions: Sentences: Final Orders: Time: Appeal
and Error. A defendant's convictions and
sentences become final on the date that the appellate court
enters its mandate concerning the defendant's appeal.
Constitutional Law: Sentences: Statutes:
Time. When a defendant's original sentence has
been vacated for being unconstitutional and void, the good
time law to be applied to the defendant's new sentence is
the law in effect at the time that sentence becomes final.
Neb. 958] 9. Constitutional Law: States: Minors:
Convictions: Sentences: Homicide: Probation and
Parole. It is unconstitutional for a state to impose
a sentence of life imprisonment without parole on a juvenile
convicted of a nonhomicide offense.
Sentences: Appeal and Error. Where a
sentence imposed within the statutory limits is alleged on
appeal to be excessive, the appellate court must determine
whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
Sentences. In determining the sentence to be
imposed, relevant factors customarily considered and applied
are the defendant's (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6)
motivation for the offense, as well as (7) the nature of the
offense, and (8) the amount of violence involved in the
commission of the crime.
from the District Court for Washington County: John E.
Samson, Judge. Affirmed.
Jeffery A. Pickens, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
NATURE OF CASE
1983, Brian D. Smith pled guilty to kidnapping, a Class IA
felony-a crime Smith committed when he was 16 years old.
Smith's sentence of life imprisonment was later vacated,
and he was resentenced to 90 years' to life imprisonment.
Smith appeals this sentence, alleging that it is excessive
and violates the 8th and 14th Amendments to the U.S.
Constitution and the principles set forth in the U.S. Supreme
Court case Graham v. Florida
Neb. 959] II. FACTS
was 16 years old when he pled guilty to the crimes of
burglary and kidnapping. In exchange for Smith's pleas,
the State dismissed charges of robbery, first degree sexual
assault, and felony murder. Smith's crime of kidnapping
was a Class IA felony because the kidnapping victim was not
voluntarily released or liberated alive and in a safe place
without having suffered serious bodily injury. In fact, the
victim was later found dead. For the burglary, Smith was
sentenced to 5 to 20 years' imprisonment. For the
kidnapping, the court imposed a concurrent sentence of life
imprisonment. Smith's codefendant, Dale Nollen, pled
guilty to first degree murder and was also sentenced to life
2010, the U.S. Supreme Court decided Graham,
which it held that the Eighth Amendment prohibits the
imposition of life imprisonment without parole upon juvenile
offenders who have not committed homicide. In 2012, in
Miller v. Alabama,  the Supreme Court held that the
Eighth Amendment prohibits mandatory life imprisonment
without parole for juvenile offenders.
2015, Smith filed an application for a writ of habeas corpus
in Lancaster County District Court. After an evidentiary
hearing, the district court determined that Smith was
entitled to relief under Graham and vacated
Smith's life sentence. Smith's case was remanded to
the Washington County District Court, where he was
resentenced to 90 years' to life imprisonment. From that
sentence, Smith appeals.
resentencing hearing, Smith's counsel argued that Smith
should receive a lenient sentence because of his immaturity,
vulnerability, and lack of true depravity at the time [295
Neb. 960] of the crime. Smith offered and the court received
several exhibits, including (a) Nollen's application to
the Board of Pardons, containing Nollen's statement about
what happened on January 11, 1983; (b) Smith's 1983
presentence report, which contains Smith's statement
about what happened on January 11, 1983; (c) a psychological
evaluation of Smith conducted in 1983; (d) a psychological
evaluation of Smith conducted in 2015; (e) Smith's
misconduct and progress reports from the Nebraska Department
of Correctional Services and the Missouri Department of
Corrections; (f) amici briefs submitted in U.S. Supreme Court
cases; and (g) a transcript of a deposition of Dr. Kayla
Pope. We discuss the relevant portions of each exhibit before
discussing the disposition of the case.
2007, Nollen submitted an application for commutation to the
Board of Pardons in which he described his "story of the
application, Nollen confessed that it was his idea to rob a
doughnut shop in Blair, Nebraska. He had worked there
previously and needed $50 to pay his portion of a gas bill.
When Nollen had worked there, the money from each day's
sales was left in the store overnight and deposited the next
morning by the owner. Nollen explained in the application,
"[A]ll I would have to do is go in the back door, go
down stairs to the basement and wait until everyone left.
Then, go upstairs, get the money and leave." Nollen told
Smith about the plan and asked Smith if he wanted to go with
him. Nollen wrote, "[Smith] said he liked the idea and
did want to go."
around 3 p.m. on January 11, 1983, Smith and Nollen went into
the doughnut shop to see who was working. It was 21-year-old
Mary Jo Hovendick (Mary Jo). After Smith and Nollen talked to
Mary Jo briefly, they left the doughnut shop through the
front door, walked around to the back alley, through a back
door of the doughnut shop, and into the basement of the shop.
Neb. 961] Smith and Nollen waited in the basement. According
to Nollen, he and Smith "smoked a couple bowls of pot
and talked about how pretty Mary Jo is and what a nice body
she has." Nollen made a comment "about the only way
[they] would have a chance with her would be to take
it." According to Nollen. Smith asked him if he wanted
to, and Nollen laughed and said "okay." Nollen said
that they got up and walked toward the stairs and that Nollen
then stopped and said, "[F]__ that, if we did that we
would have to kill her so she wouldn't tell on us."
Smith and Nollen went back and sat down again.
wrote that he and Smith did not talk much for the next hour
or so. During that time, Nollen was thinking about how pretty
Mary Jo was and "how nice it would be to have sex with
her." Nollen knew Mary Jo from school. Nollen wrote,
"She had the reputation of being really quiet, shy - a
loner but popular. She never had a boyfriend, so I was
thinking if I had sex with her and messed up, she would never
know because she has never been with anyone." Nollen
"fell asleep thinking about [Mary Jo], " and Smith
woke him up about an hour later.
neither Smith nor Nollen had a watch, neither one knew how
long they had been waiting. Without knowing what time it was,
they walked upstairs to see if they could hear anything.
Nollen said they knew the store was closed because Mary Jo
was in the office. They could hear her counting the money.
Nollen told Smith that she was getting the money ready for
deposit, which meant that she would take it to the bank and
there would be only $20 left in the register (instead of
about $200). Nollen wrote, "I asked [Smith] what he
wanted to do. He said let's get it all."
to Nollen, they went over to the office door. Smith then ran
to the stairs and hid, and Nollen waited by the office door.
After Mary Jo saw Nollen, he walked up to her and put his
hand over her mouth so she would not scream. Nollen took her
out to the hallway and instructed Smith to go and get the
money. Smith got the money and put it in his pockets.
Neb. 962] Nollen asked Mary Jo about her car, and she told
him where it was. Nollen told Smith that he was going to get
the car and that when Nollen honked the horn, Smith was to
come out with Mary Jo. Smith complied. After the two of them
got into the car with Nollen, he drove off. They stopped at a
gas station, and Smith got out and put gas in the car, then
went in and paid for it. After they left the gas station,
Smith said he wanted to drive, so Smith and Nollen changed
places. Smith drove around country roads while Nollen went
through Mary Jo's purse, took $20 and gave it to Smith,
then threw her purse out the window.
to Nollen, Mary Jo had been sitting on the center console, so
Nollen told her she could sit on his lap and pulled her
toward him. Mary Jo slid over and sat on one of Nollen's
legs. Nollen started thinking about having sex with Mary Jo
again. He wrote, "It was really intense now, because I
could smell her perfume and feel how soft her skin
is.'' Nollen told Smith to pull over, and he did.
Nollen forced Mary Jo into the back seat and climbed back
there with her. He told Mary Jo to take her clothes off.
Nollen tried to penetrate her with his penis, but was
unsuccessful because Mary Jo kept pushing him away. Nollen
said, "I was mad because I was not getting what I
wanted, so I rubbed against her until I got off." He
then asked Smith "if he wanted to come back, " and
Smith said that he did. The two switched places. Nollen could
hear Smith telling Mary Jo to kiss him, and then Nollen
"turned the radio up and started to figure out how
[they] were going to get out of this." Nollen wrote that
he "knew that the only way would be to kill Mary Jo but,
[he] did not know how it would happen."
Smith and Nollen traded places again and Smith drove the car
back toward Blair. Nollen told Mary Jo to get dressed, and he
tied her hands up with a ribbon that had been around her
neck. Nollen then got back in the front seat of the car.
Smith drove the car through Blair to a trailer park "by
Neb. 963] Smith and Nollen got out of the car and looked
around. Nollen wrote, "We did not talk but, I think we
both knew what was going to happen. I look at the bridge and
thought we could throw her over the side. So I told [Smith]
that when we get half way [sic] over the bridge to stop, he
said okay . . . ." When the car got halfway across the
bridge, Nollen got scared and worried that someone might see,
so he told Smith to keep driving. Smith drove across the
bridge and turned to go underneath it. They pulled up to the
second dock by the river. Nollen got out of the car, and
wrote, "I figured, I would kill her by stabbing her
[with a knife taken from the doughnut shop]. I asked [Smith]
for the knife, he reached into the car and got it."
Nollen pulled the passenger seat forward and looked at Mary
Jo. When Nollen brought the knife toward Mary Jo, she
screamed and started crying. Nollen said he looked at her and
told her he was sorry. She kept crying, and Nollen threw the
knife into the river and told her, '"[S]ee, I [sic]
not going to hurt you.'" According to Nollen, after
he told Smith that he "can not do this, "
"[Smith] shrugged and leaned into the car." Nollen
wrote, "The car jumped forward and I jumped back. The
car rolled down the dock into the river. I seen the car hit
the water and I just stood there. . . . The car was still
floating in the water when we left."
1983, Smith was interviewed by a probation officer about the
events that led to his kidnapping and burglary convictions.
This interview was submitted as part of Smith's
presentence report, which was admitted into evidence.
interview, Smith told the probation officer that when he
agreed to rob the doughnut shop with Nollen, he thought they
were just going to go in and get the money after the shop
closed. His story was similar to Nollen's, but with some
differences. Smith did not mention anything about smoking
marijuana in the basement. Also, as to Smith's sexual
assault of Mary Jo, Smith told the probation officer that
Nollen asked [295 Neb. 964] Smith if he wanted to get into
the back of the car and that Smith said, "I guess
so." Smith said he "got into the back and started
to rape her, but decided [he] couldn't do it.''
to Smith, it was Nollen who drove the car across the bridge
to the Iowa side. Smith also said that at the time the car
was parked at the dock, he and Smith had not discussed what
to do with Mary Jo. At that time, Nollen got into the back
seat and tied Mary Jo's hands behind her back. Next,
Nollen started to roll the passenger's side window down
halfway and told Smith to do the same thing to the
driver's side window. Smith complied. According to Smith,
Nollen told Smith to put the car in gear, and Smith complied.
Nollen then aided the car into the river by pushing on it.
1983 Psychological Evaluation
month after Smith began serving his sentences, the Nebraska
Department of Correctional Services conducted a psychological
evaluation of Smith. During an interview for the evaluation,
Smith again denied sexually assaulting Mary Jo. Smith's
Smith tends to be an impressionable individual and strikes
this examiner as more of a follower than a leader. One gets
the impression that his co-defendant tended to be the more
dominant party in the relationship, and this seems to be true
when one tries to visually reconstruct the events for which .
. . Smith is currently incarcerated.
evaluator also wrote:
[Smith] has little insight into the seriousness of his
current offense. He is fairly overwhelmed by the prison
environment and the length of his sentence. He is seen as
having an elevated potential for violence based on testing.
He may ...