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State v. Stone

Supreme Court of Nebraska

October 13, 2017

State of Nebraska, appellee,
v.
Harold L. Stone, appellant.

         1. Constitutional Law: Statutes: Appeal and Error. The constitutionality of a statute presents a question of law, which an appellate court independently reviews.

         2. 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 court.

         3. Constitutional Law: Statutes: Pleas. As-applied challenges to the constitutionality of a criminal statute are preserved by a defendant's plea of not guilty.

         4. 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.

         5. 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.

         6. ___: ___. 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.

         7. ___: ___. 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.

         8. 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.

         [298 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.

         10. 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.

         Appeal from the District Court for Thayer County: Vicky L. Johnson, Judge. Affirmed.

          Robert B. Creager, of Anderson, Creager & Wittstruck, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

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

          Stacy, J.

         In this 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.[1] 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.

         [298 Neb. 55] FACTS

         Conviction

         In 2016, Stone was charged with five counts of first degree sexual assault of a child, [2] one count of third degree sexual assault of a child, [3] and one count of child abuse.[4] 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.

         The 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 disabilities.

         The 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 ...


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