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State v. Nollen

Supreme Court of Nebraska

March 17, 2017

State of Nebraska, appellee,
Dale V. Nollen, appellant.

         1. Constitutional Law: Sentences. Whether a sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment presents a question of law.

         2. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

         3. 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 final.

         4. 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.

         5. Constitutional Law: Sentences. A sentence imposed in violation of a substantive constitutional rule is not merely erroneous, but void.

         6. 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 nonhomicide offense.

         7. Minors: Convictions. Juvenile offenders convicted of nonhomicide crimes must be given some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.

         8. 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 prison.

         [296 Neb. 95] 9. Constitutional Law: Sentences: Homicide. Felony murder is a homicide offense for purposes of Eighth Amendment sentencing analysis.

         10. 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.

         11. 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.

         Appeal from the District Court for Washington County: John E. Samson, Judge. Affirmed.

          Adam J. Sipple, of Johnson & Mock, PC, L.L.O., 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, 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, [1] 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[2]


         1. Overview

         Nollen 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.

         In 2010, the U.S. Supreme Court decided Graham, [3] 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, [4] the Court held that the Eighth Amendment prohibits mandatory life imprisonment without parole for juvenile offenders.

         In 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.

         2. Resentencing Hearing

         At the 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.

         (a) Mitigating Circumstances

         The 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.

         In 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.

         On 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 "hand-me-down" clothing.

         On 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] rope."'

         (b) The Offense

         The 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.[5]

         On 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.

         When 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.

         [296 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.

         Smith 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.

         Smith 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.

         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. 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."

         Smith 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.

         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 and its contents out the window.

         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. 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 off."

         Nollen 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 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."

         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 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 followed.

         Nollen 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.

         This 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 inches.

         (c) Nollen's Confession and Conviction

         The day 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.

         Before 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.

         Eventually, 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.

         [296 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 Disorder."

         On 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.

         (d) Time in Prison

         Since 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.

         At the 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 summarized below.

         (i) David Erickson

         David 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.

         Nollen 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.

         Nollen 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.

         Erickson 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, ...

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