Constitutional Law: Statutes: Appeal and
Error. The constitutionality of a statute presents a
question of law, which an appellate court independently
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
Constitutional Law: Statutes: Pleas.
As-applied challenges to the constitutionality of a criminal
statute are preserved by a defendant's plea of not
Constitutional Law: Statutes: Waiver. The
proper procedure for raising a facial constitutional
challenge to a criminal statute is to file a motion to quash,
and all defects not raised in a motion to quash are taken as
waived by a defendant pleading the general issue.
Constitutional Law: Statutes. Regardless of
how the parties label a constitutional challenge, a court
will classify the challenge based upon the nature of the
alleged constitutional defect.
___. Generally, a facial challenge seeks to void the statute
in all contexts for all parties. In contrast, an as-applied
challenge often concedes the statute is constitutional in
some of its applications, but contends it is unconstitutional
as applied to the particular facts of the case.
___. An as-applied challenge does not seek to void the
statute for all purposes, but seeks only to prevent the
statute's application to the facts before the court.
Sentences. Generally, it is within a trial
court's discretion to direct that sentences imposed for
separate crimes be served either concurrently or
consecutively. This is so, even when offenses carry a
mandatory minimum sentence, unless the statute requires that
consecutive sentences be imposed.
Neb. 54] 9. 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.
Sentences. When imposing a sentence, the
sentencing court is to consider 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 Thayer County: Vicky L. Johnson,
B. Creager, of Anderson, Creager & Wittstruck, PC,
L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
direct appeal of his criminal convictions and sentences,
Harold L. Stone seeks to challenge the constitutionality of
the mandatory minimum sentencing scheme for first degree
sexual assault of a child. He also challenges his sentences as
excessive. We conclude Stone did not preserve his
constitutional challenge for appellate review, and we find no
merit to his excessive-sentence claim. Accordingly, we affirm
the judgment and sentences of the district court.
Neb. 55] FACTS
2016, Stone was charged with five counts of first degree
sexual assault of a child,  one count of third degree sexual
assault of a child,  and one count of child
abuse. The amended information alleged Stone
sexually penetrated H.W. on five separate occasions in 2014
and 2015, at a time when H.W. was under the age of 16 and
Stone was over the age of 25. Stone entered pleas of not
guilty, and the matter proceeded to trial.
facts underlying Stone's charges are not directly
relevant to his assignments of error, so we do not recount
them in detail. Generally, evidence at trial showed that
Stone, a 5 8-year-old man, befriended, groomed, and sexually
assaulted H.W., a 15-year-old child with behavioral
jury returned a verdict finding Stone guilty of four counts
of first degree sexual assault of a child and one count of
child abuse. Each sexual assault conviction was a Class IB
felony carrying a mandatory minimum prison sentence ...