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State v. Smith

Supreme Court of Nebraska

March 3, 2017

State of Nebraska, appellee,
v.
Brian D. Smith, appellant.

         1. 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.

         2. 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.

         3. 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.

         4. 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.

         5. Courts: Plea Bargains. Courts enforce only those terms and conditions about which the parties to a plea agreement did in fact agree.

         6. 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 sentences.

         7. 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.

         8. 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.

         [295 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.

         10. 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 imposed.

         11. 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.

         Appeal 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 for appellee.

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

          Kelch, J.

         I. NATURE OF CASE

         In 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[1]

         [295 Neb. 959] II. FACTS

         1. Overview

         Smith 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 imprisonment.

         In 2010, the U.S. Supreme Court decided Graham, [2] in 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, [3] the Supreme Court held that the Eighth Amendment prohibits mandatory life imprisonment without parole for juvenile offenders.

         In 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.

         2. Resentencing Hearing

         At the 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.

         (a) Nollen's Statement

         In 2007, Nollen submitted an application for commutation to the Board of Pardons in which he described his "story of the crime."

         In 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."

         At 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.

         [295 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.

         Nollen 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.

         Because 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."

         According 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.

         [295 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.

         According 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."

         Eventually, 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 the river."

         [295 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 Smith followed.

         Nollen 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."

         (b) Smith's Statement

         In 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.

         In the 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.''

         According 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.

         (c) 1983 Psychological Evaluation

         About 1 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 evaluator wrote:

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.

         The 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 ...

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