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State v. Kennedy

Supreme Court of Nebraska

March 16, 2018

State of Nebraska, appellant,
v.
Chad T. Kennedy, appellee.

         1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.

         2. Sentences: Appeal and Error. Whether an appellate court is reviewing a sentence for its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court's discretion.

         3. Statutes. It is a general principle of statutory construction that to the extent there is a conflict between two statutes, the specific statute controls over the general statute.

         4. Statutes: Intent: Appeal and Error. When interpreting a statute, effect must be given, if possible, to all the several parts of a statute; no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided. An appellate court must look to the statute's purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it.

         5. Probation and Parole. Neb. Rev. Stat. § 29-2268(2) (Reissue 2016) does not authorize a probationer to be "unsatisfactorily" discharged or terminated from post-release supervision early as the result of a violation.

         6. Courts: Probation and Parole. Once a district court finds a violation of post-release supervision, it is authorized by Neb. Rev. Stat. § 29-2268 (Reissue 2016) to take one of two paths: It can either revoke post-release supervision and impose a term of imprisonment up to the remaining period of post-release supervision under subsection (2), or it can find that revocation is not appropriate and order one or more of the dispositions authorized by subsection (3).

         [299 Neb. 363] 7. Sentences. Pursuant to Neb. Rev. Stat. § 29-2323(1) (Reissue 2016), if an appellate court determines a sentence is excessively lenient, it may set aside the sentence and either (a) remand the case for imposition of a greater sentence, (b) remand the case for further sentencing proceedings, or (c) impose a greater sentence.

         8. Due Process: Sentences: Probation and Parole. The same hearing procedures and due process protections that apply when a court considers a motion to revoke probation apply when a court considers a motion to revoke post-release supervision.

         Appeal from the District Court for Sarpy County: George A. Thompson, Judge. Vacated and remanded for further proceedings.

          Lee Polikov, Sarpy County Attorney, and Nicole R. Hutter for appellant.

          Liam K. Meehan, of Schirber & Wagner, L.L.P., for appellee.

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

          Stacy, J.

         After finding Chad T. Kennedy had violated his post-release supervision, the district court terminated it "unsatisfactorily." The State appeals, claiming this resulted in an excessively lenient sentence that was not authorized by law. We vacate the district court's order and remand the cause for further proceedings consistent with this opinion.

         FACTS

         Kennedy was charged in the Sarpy County District Court with one count of operating a motor vehicle to avoid arrest (Class IV felony)[1] and one count of willful reckless driving (Class III misdemeanor). On February 9, 2017, he pled guilty to an amended information charging him with only the felony offense. Kennedy requested immediate sentencing and waived [299 Neb. 364] his right to a presentence investigation. He asked not to be placed on probation. The court imposed a sentence of 240 days in jail and 9 months of post-release supervision. He was given credit for 150 days already served, and it appears he was released from jail the same day he was sentenced.[2]

         In April 2017, the State filed what it captioned a "Motion for Revocation of Probation." It is clear from the record the intent was to seek revocation of Kennedy's post-release supervision. The motion to revoke stated that Kennedy was "in violation of his probation order dated February 9, 2017" in that he had "failed to show for his scheduled probation appoint[ment]s and has failed to provide probation with a valid address or contact information."

         At the hearing on the motion to revoke, Kennedy admitted he had violated the conditions of his post-release supervision and explained he had done so because he was incarcerated in Douglas County on an unrelated matter. He told the court he had been in custody in Douglas County for 40 days and expected to be released "in another 32" and given 6 months' probation in a "rehab and halfway house." The court accepted Kennedy's admission and found he had violated the terms and conditions of his post-release supervision.

         The court then asked counsel how they wished to proceed. Defense counsel advised "the cleanest thing would just be to terminate him unsuccessfully from supervision" and "they'll take that into consideration in sentencing in Douglas County." The State disagreed. It argued the court lacked statutory authority to unsuccessfully terminate post-release supervision and suggested instead that "a sentencing order consistent with his [remaining] post release supervision term would be appropriate."

         The court stated:

I'm going to note for the record a couple things: . . . Kennedy is under the jurisdiction and custody of [299 Neb. 365] the fourth judicial district at this point in time and pending charges there. Certainly we did the transport order to get him here. And the point and purpose of post release supervision is to provide guidance and/or track for defendants to be able to follow that is being currently set up with Douglas County. And as a result of that he can't comply with our post release supervision because he's in custody in Douglas County. So, based upon the admission, the court is going to find . . . Kennedy has violated the terms and conditions of his post release supervision.
The court is going to terminate probation [as being] unsatisfactory. And that will be the judgment and order [of] the court. [Kennedy is] remanded to the custody of the sheriff.

         The court's minute entry specifically noted that the court was not "revok[ing]" Kennedy's probation. The following day, on June 20, 2017, the court entered what it styled a "Judgment and Sentence" that provided in relevant part:

[Kennedy] was personally advised of his conviction for the crime of Count 1: Operating a motor vehicle to avoid arrest, felony offense, a class IV felony, pursuant to his plea of guilty and judgment of conviction entered on February 9, 2017, and [Kennedy's] admission to the Motion to Revoke Probation entered on June 19, 2017 and offered no good or sufficient reason why a sentence should not be imposed for such crime. The Court terminated the Post Release Supervision.

         IT IS THEREFORE ORDERED that the Post Release Supervision is hereby terminated as unsatisfactorily.

         The Sarpy County Attorney, with the consent of the Attorney General (State), timely appealed, alleging the sentence imposed was excessively lenient.[3] We moved the case to our docket on our own motion and set it for oral argument.

         [299 Neb. 366] ASSIGNMENTS OF ERROR

         The State assigns, restated, that the district court (1) abused its discretion in imposing an excessively lenient sentence not authorized by Neb. Rev. Stat. § 29-2268 (Reissue 2016) and (2) committed plain error by imposing a sentence outside the statutory limits.

         STANDARD OF REVIEW

         Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.[4]

         Whether an appellate court is reviewing a sentence for its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court's discretion.[5]

         ANALYSIS

         Post-release supervision is a relatively new concept in Nebraska sentencing law.[6] Last year, in State v. Phillips, [7] this court had its first opportunity to address the procedure for imposing a term of post-release supervision under § 29-2204.02. The issues presented in the instant appeal provide our first opportunity to address the procedure when moving to revoke such a term.

         As a threshold matter, we observe that the Legislature has defined "[probationer" to mean "a person sentenced to probation or post-release supervision."[8] Similarly, it has [299 Neb. 367] defined "[p]robation" to "include[] post-release supervision."[9]"Post-release supervision" is defined to mean "the portion of a split sentence following a period of incarceration under which a person found guilty of a crime upon verdict or plea is released by a court subject to conditions imposed by the court and subject to supervision by the [Office of Probation Administration]."[10] The Legislature has instructed that these statutory definitions apply for purposes of the Nebraska Probation Administration Act[11] "unless the context otherwise requires."[12]

         As such, the Nebraska Probation Administration Act sometimes refers to probation and post-release supervision interchangeably, [13] and other times, separately.[14] This may explain why, in the present case, the State filed a motion to revoke "probation" even though Kennedy had been sentenced to a term of incarceration followed by a term of post-release supervision. The trial court used the same vernacular in its June 20, 2017, sentencing order. Particularly because the available disposition differs slightly based on whether a probationer is alleged to have violated the terms of his or her probation or post-release supervision, [15] we encourage courts, and officers of the courts, to be precise when taking up motions to revoke.

         § 29-2268

         Violations of probation and post-release supervision are governed by ...


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