Constitutional Law: Sentences. Whether a
sentence constitutes cruel and unusual punishment in
violation of the Eighth Amendment presents a question of law.
Judgments: Appeal and Error. When reviewing
a question of law, an appellate court reaches a conclusion
independent of the lower court's ruling.
Sentences: Statutes: Time. The good time law
to be applied to a defendant's sentence is the law in
effect at the time the defendant's sentence becomes
Judgments: Convictions: Sentences: Final Orders:
Time: Appeal and Error. A defendant's sentence
becomes final on the date that the appellate court enters its
mandate concerning the defendant's appeal, if there is
indeed an appeal. If no appeal is taken from the judgment,
that judgment becomes final.
Constitutional Law: Sentences. A sentence
imposed in violation of a substantive constitutional rule is
not merely erroneous, but void.
Constitutional Law: States: Minors: Convictions:
Sentences: Probation and Parole. It is
unconstitutional for a state to impose a sentence of life
imprisonment without parole on a juvenile convicted of a
Minors: Convictions. Juvenile offenders
convicted of nonhomicide crimes must be given some meaningful
opportunity to obtain release based on demonstrated maturity
Minors: Sentences: Judgments. Although the
possibility of a sentence of life imprisonment without parole
for a juvenile is not foreclosed, a sentencer must take into
account how children are different and how those differences
counsel against irrevocably sentencing them to a lifetime in
Neb. 95] 9. Constitutional Law: Sentences:
Homicide. Felony murder is a homicide offense for
purposes of Eighth Amendment sentencing analysis.
Constitutional Law: Criminal Law: Sentences.
The Eighth Amendment does not require strict proportionality
between crime and sentence, but, rather, forbids only extreme
sentences that are grossly disproportionate to the crime.
Sentences: Judgments. The appropriateness of
a sentence is necessarily a subjective judgment and includes
the sentencing judge's observations of the
defendant's demeanor and attitude and all of the facts
and circumstances surrounding the defendant's life.
from the District Court for Washington County: John E.
Samson, Judge. Affirmed.
J. Sipple, of Johnson & Mock, PC, L.L.O., 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, Dale V. Nollen, at age 17, pled guilty to first degree
murder and was sentenced to a mandatory term of life
imprisonment. Pursuant to the U.S. Supreme Court decision in
Miller v. Alabama,  this sentence was vacated. Prior
to resentencing, a hearing was held, and Nollen produced
evidence of certain mitigating factors, as well as evidence
of his reform while in prison. Following the hearing, Nollen
was resentenced to 90 years' to life imprisonment. Nollen
appeals this sentence, alleging, among other things, that the
sentence violates the 8th and 14th Amendments to the U.S.
[296 Neb. 96] Constitution and the principles set forth in
Miller and Graham v. Florida
was 17 years old in January 1983 when he and a friend, Brian
D. Smith, participated in criminal acts which led to the
death of Mary Jo Hovendick (Mary Jo). Nollen turned himself
in to the police, pled guilty to first degree murder, and was
sentenced to mandatory life imprisonment.
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,  the Court held that the Eighth Amendment
prohibits mandatory life imprisonment without parole
for juvenile offenders.
2013, Nollen filed a motion for postconviction relief, which
was granted. The district court vacated Nollen's sentence
and ordered a presentence report and comprehensive mental
health examination pursuant to Neb. Rev. Stat. §
28-105.02 (Reissue 2016). A resentencing hearing was set for
January 4, 2016.
resentencing hearing, Nollen's counsel argued that Nollen
should receive a lesser sentence because of mitigating
circumstances at the time of the crime and because
Nollen's character had been reformed while he was in
prison. In summarizing the evidence presented at the
resentencing hearing, we take a chronological approach. We
first review the evidence of mitigating circumstances leading
up to Nollen's offense. We next review the evidence of
the offense, Nollen's [296 Neb. 97] confession and
conviction, Nollen's time in prison, and the results of a
comprehensive mental health examination conducted on Nollen
in 2015. Finally, we set forth the facts concerning the
district court's disposition of this case.
evidence of mitigating circumstances comes mostly from the
presentence report. According to the presentence report,
Nollen ran away from home on December 31, 1982- 11 days
before the events leading to his conviction. Nollen reported
that at the time of his offense, his father was an alcoholic
and was physically abusive toward Nollen and his mother. His
mother was also an alcoholic.
1983, Nollen's neighbors gave written statements
indicating that there was "constant fighting"
within Nollen's home and that Nollen was often left home
alone with his younger sister. One neighbor stated that
Nollen "always seemed eager to do things with [the
neighbor's] family" and would sometimes visit just
to "get away from home when there were family
problems." Other Blair, Nebraska, citizens were aware of
Nollen's parents' drinking problems and that
Nollen's homelife was "not very pleasant."
Records indicate that the police received several calls
regarding the Nollen residence for such things as child abuse
and neglect. Due to a fire, however, reports made in
connection with those calls are not available.
January 3 or 4, 1983 (2 to 3 days after Nollen left his
home), Nollen dropped out of school. He was in his senior
year. Nollen reported that high school was "'rough,
'" that he didn't '"fit in, '"
and that other students made fun of him for wearing
January 5, 1983, Smith attended a church choir rehearsal in
Blair. According to a statement made by the director of the
choir, Nollen went to her and informed her of his plans to
run away to Missouri with his friend, Smith. The director and
the director's mother, who was an accompanist for the
group, asked Nollen if he wanted to talk to the reverend
about it. The [296 Neb. 98] director's mother found the
reverend, and the three of them talked to Nollen about why he
wanted to run away. Nollen talked about "bad family
life-parents drinking, parents taking his money, no one ever
caring." Although the three adults tried to convince
Nollen to finish school and stay home at least until he was
18, Nollen stated that he was '"at the end of [his]
following version of the offense is taken primarily from
Nollen's 2007 application for commutation, which was
admitted into evidence at his resentencing hearing. The
application was also admitted into evidence at Smith's
resentencing hearing. Accordingly, the facts set forth below
are almost identical to those set forth in this court's
opinion disposing of Smith's appeal.
January 11, 1983, Nollen was living with his friend
Smith's older brother and the older brother's
girlfriend. Nollen had "a bit of a crush" on her
and accompanied her to Omaha, Nebraska, for a job interview.
On the way back to Blair from Omaha, she asked Nollen if he
knew where they could get $50 to pay a gas bill. Nollen
thought for a while and came up with the idea to rob a
doughnut shop in Blair. He had worked there previously and
was familiar with the layout. When Nollen worked there, the
money from a 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 . .
. ." Smith's older brother's girlfriend agreed
to the plan, but told Nollen not to tell Smith's older
brother because he would not approve.
Smith older's brother's girlfriend and Nollen
returned to Smith's residence, Nollen told Smith about
the plan and asked Smith if he wanted to go with him. Smith
said he did.
Neb. 99] 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. 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.
and Nollen waited in the basement. They "smoked a couple
bowls of pot and talked about how pretty Mary Jo is."
Nollen made a comment "about the only way [they] would
have a chance with her would be to take it." Smith asked
Nollen if he wanted to, and Nollen laughed and said
"okay." According to Nollen, they got up and walked
toward the stairs and 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.
and Nollen did not talk much for the next hour or so. During
that time, Nollen thought 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. They
determined that the store was closed, because Mary Jo was in
the office. Nollen could hear her counting the money and told
Smith that she was getting the money ready for deposit. He
explained that this meant that she would take it to the bank
and there would be only $20 left in the register (instead of
about $200). Nollen asked Smith what he wanted to do, and
Smith said, "[L]et's get it all."
ran to the stairs and hid, and Nollen waited by the office
door. After Mary Jo saw Nollen, Nollen walked up to [296 Neb.
100] 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.
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
and its contents out the window.
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. According to
Nollen, he 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 Smith complied. Nollen
forced Mary Jo into the back seat and climbed back there with
her. He told Mary Jo to take her clothes off. At first, she
did not comply, but then Nollen told her angrily "so she
would listen.'' Eventually Mary Jo complied. Nollen
got on top of Mary Jo and penetrated her with his fingers
while Mary Jo tried to push him away and asked him to stop.
Nollen then tried to penetrate her with his penis, but was
unsuccessful because Mary Jo "was pushing on [his]
sides." Nollen wrote, "I was mad because I was not
getting what I wanted, so I rubbed against her until I got
then asked Smith "if he wanted to come back" with
Mary Jo, and Smith said that he did. The two switched places.
Nollen said that he could hear Smith telling Mary Jo to kiss
him and that he then "turned the radio up and started to
figure [296 Neb. 101] out how [they] were going to get out of
this." Nollen said he "knew that the only way would
be to kill Mary Jo but, [he] did not know how it would
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
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 halfway [sic] over the bridge to stop [and] he said okay
. . . ." When they got halfway across the bridge, Nollen
got "really 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 a
dock by the river. Nollen got out of the car, and Smith
wrote, "I figured, I would kill her by stabbing
her." Nollen asked Smith for a knife that he had taken
from the doughnut shop, and Smith gave it to him. 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 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.'" Nollen wrote that he looked at Smith and
said he could not do it. According to Nollen, "[Smith]
shrugged and leaned into the car. 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."
Nollen then told Smith that they "needed to get the hell
out of there." The car was still floating in the water
when they left.
version of events is largely consistent with the version that
Nollen told the police after he was convicted and [296 Neb.
102] sentenced in January 1983. In 1983, Nollen added that
Smith had rolled down the driver's side window all the
way. Before Smith put the car into gear to drive into the
river, Nollen told Smith to roll it up so that it was open
only 3 inches. The passenger's side was also open about 3
Nollen's Confession and Conviction
after the offense, Smith and Nollen went to a bowling alley
with Smith's older brother and his girlfriend. After an
emotional encounter with Nollen's parents, Nollen hugged
Smith's older brother and started shaking. He told Smith,
'"I've got to tell him. I've got to tell
him.'" Smith told Nollen to go ahead. Nollen told
Smith's older brother about how they had robbed the
doughnut shop and "killed a girl." Early the next
morning, Smith's older brother took Smith and Nollen to
the Blair Police Department, where they were arrested.
questioning Smith and Nollen, police waited for their parents
to arrive. An officer contacted Nollen's mother to tell
her that her son was in custody and to ask her to come to the
station. She asked what he was being charged with, and the
officer advised her that he was being charged with murder but
would not explain further over the telephone. She stated,
"[Y]ou will or else." The officer explained that he
was very busy and could not continue arguing over the
telephone. Nollen's mother then asked the officer what he
was "trying to pull" and told him he was
"pushing [his] luck." The officer thanked her and
hung up. Five minutes later, Nollen's father called the
officer, demanding the details of the charge. The officer
asked the father to come to the station, but he refused.
Nollen's parents were persuaded to come to the station.
After an officer "read the Miranda
warnings" to Nollen and his parents, the parents stated
that they did not want Nollen to answer any questions without
an attorney. Police honored the request and did not ask
Nollen any questions.
Neb. 103] Prior to Nollen's plea hearing, Nollen was
evaluated for competency. The evaluator concluded that Nollen
was competent to assist in his own defense. He diagnosed
Nollen with "Conduct Disorder-Socialized, Aggressive,
" noting that "[w]ere [Nollen] 18, [he] would
seriously consider a diagnosis of Antisocial Personality
January 24, 1983, Nollen pled guilty to first degree murder,
a Class IA felony, which carried a mandatory sentence of life
imprisonment. In exchange for Nollen's plea, the county
attorney agreed to drop charges of kidnapping, sexual
assault, robbery, and burglary. Nollen waived his right to a
presentence investigation and was thus sentenced the same day
he entered his guilty plea.
Time in Prison
Nollen began serving his sentence in 1983, he has earned his
diploma through the GED program and earned an associate
degree in business administration from a community college.
He has also earned a number of institutional programming
certificates. Nollen completed an inpatient sex offender
program, generic outpatient levels format programming, and
substance abuse programming.
resentencing hearing, Nollen called three Department of
Correctional Services (DCS) employees to testify about the
programs he participated in and the employees'
impressions of Nollen as an inmate. Their testimony is
Erickson began working as an officer for DCS in 1997 and
became familiar with Nollen around that time. Sometime during
or prior to 2000, Erickson became a housing unit manager and
was assigned to manage Nollen's unit. During the 4 to 5
years that Erickson served as Nollen's housing unit
manager, Erickson interacted with Nollen on a daily basis and
was aware of some of the activities Nollen was involved in.
For example, Erickson was aware that Nollen was "heavily
involved" in [296 Neb. 104] Bible studies that took
place in the yard and also with a Sunday night worship group.
was also selected to serve as the representative for his unit
wing for the unit's "town hall" meetings. In
that role, he was responsible for interacting with inmates
from his wing to ensure that the wing's grievances were
aired. Nollen was selected by staff based on his disciplinary
history, his rapport among the staff and inmates in the unit,
and his longevity in the unit. Erickson testified that he
could not remember a time when Nollen was not the
representative for his wing.
was also selected as one of four or five inmates to work in
the unit's supply room. This "high-profile"
position requires applicants to interview for the job and go
through a vetting process where institutional behavior and
programming are considered. According to Erickson, Nollen has
held a few other "high-profile" positions,
including in a workshop and a medical quarter.
also testified about Nollen's history of misconduct
reports. However, first, Erickson explained the use of
"misconduct reports" within the Omaha Correctional
Center. He explained that when an inmate is assigned to a
housing unit, he or she is given a copy of the housing unit
rules. If the inmate violates one of the rules, a misconduct
report may be issued. Misconduct reports are issued for such
things as loitering in a no-loitering area, use of abusive
language, gestures, ...