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
Judges: Words and Phrases. A judicial abuse
of discretion exists when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of
a substantial right and denying just results in matters
submitted for disposition.
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
Sentences. In determining a sentence to be
imposed, relevant factors customarily considered and applied
are 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.
Where a defendant was under the age of 18 when he or she
committed a Class IA felony, Neb. Rev. Stat. § 28-105.02
(Reissue 2016) dictates that the sentencing judge must also
consider mitigating factors, such as the defendant's (1)
age at the time of the offense, (2) impetuosity, (3) family
and community environment, and (4) ability to appreciate
risks and consequences of the conduct, as well as (5) the
outcome of a comprehensive mental health evaluation of the
defendant conducted by an adolescent mental health
professional licensed in Nebraska.
from the District Court for Douglas County: Thomas A. Otepka,
Neb. 484] Thomas C. Riley, Douglas County Public Defender,
and Annie O. Hayden for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.,
and Pirtle and Bishop, Judges.
1974, a court sentenced Patrick R. Russell to life
imprisonment for a murder he committed at age 17. Following
decisions in Miller v. Alabama and State v.
Mantich,  Russell sought postconviction relief in
the form of a new sentencing hearing. The court granted
relief and resentenced Russell to 110 to 126 years'
imprisonment, making him eligible for parole at age 72.
Because the sentence does not constitute an abuse of
discretion, we affirm.
and Direct Appeal
facts and circumstances surrounding Russell's crime are
set out in greater detail in our decision resolving his
direct appeal. On November 10, 1973, when Russell was 17
years old, he engaged in sexual activities with 8-year-old
Joseph Edmonds. After Edmonds allegedly called Russell's
grandmother derogatory names, Russell used a pocketknife to
cut a length of telephone cord. He told Edmonds to close his
eyes, slipped the cord around Edmonds' neck, and pulled
it tight. Edmonds died due to the strangulation.
Neb. 485] Our prior opinion also discussed Russell's
mental condition. At age 14, he was hospitalized for
psychiatric treatment for approximately 1 month. Russell then
resided at the Omaha Home for Boys for approximately 2 years.
He returned to live with his mother in July 1973, and he was
soon charged with three counts of assault and battery related
to sexual attacks on young boys ranging from 4 to 8 years of
district court convicted Russell of murder in the first
degree and imposed a sentence of life imprisonment. We
affirmed the court's judgment.
decisions in Miller and Mantich,
Russell sought postconviction relief. He asked the district
court to vacate and set aside his sentence and to hold a new
sentencing hearing. The district court granted the requested
district court received evidence at a mitigation hearing. It
received the deposition of an adolescent neuropsychologist
who discussed newer revelations in science concerning the
development of the adolescent brain. It also received
documents regarding Russell's misconduct reports,
achievements while incarcerated, and reclassification forms
used by the penitentiary to determine placement.
district court heard live testimony from a witness. Kirk A.B.
Newring, Ph.D., a psychologist, testified that studies show
the brains of adolescents are not fully formed. He explained
that the prefrontal cortex-which allows for deliberation,
anticipation of future outcomes, assessment of risk, and
impact-seems to be more fully developed around age 25. The
lack of prefrontal cortex development is most demonstratively
impaired in "hot logic situations where there's
emotional arousal." Newring testified that Russell
reported a strong [299 Neb. 486] attachment to his
grandmother as the only relative who had a parenting-type
relationship toward him. Newring gathered from his talks with
Russell that Russell admitted to the crime to appease the
parole board but was now saying that he did not do it.
Russell explained that his attorney performed inadequately
and that Russell was innocent.
testified that with regard to classification, since 2011,
Russell had scores that would allow him to be at a community
corrections center if he were not serving a life sentence. In
other words, Russell "has the institutional behavior and
history that would allow him to be placed at work release,
" but instead, Russell is kept in total confinement due
to the nature of his sentence. The presentence report (PSR)
shows that during many annual custody reviews from at least
1989 to 2000, no change was recommended in Russell's
classification due to his refusal to take part in a
psychological evaluation. He submitted to a psychological
evaluation in 2002. That evaluation recommended that Russell
complete all three levels of both "GOLF" (for
mental health) and "SATOP" (for substance abuse)
programming prior to being considered for a custody
promotion. In 2002 through 2005, his classification was not
changed, because the mental health recommendation was not
assessed Russell at a low risk for future acts of violence.
The risk factors were that Russell had a conviction of
violence and a personality disorder. Newring assigned Russell
a diagnosis of "Other Personality Disorder with Mixed
Schizoid and Schizotypal Personality features" to
"encapsulate that he's a little bit asocial"
and that "his presentation and perceptions are a little
bit odd or eccentric." Newring testified that Russell
described a feasible and achievable release plan and
recognized that he would need to work through the transition
process of the Department of Correctional Services. Newring
did not believe that Russell had any meaningful family
support in the community. Newring explained that Russell was
employable, did not have a major mental illness, had a [299
Neb. 487] good work history, handled stress fairly well
within the institution, and was cognizant of a need for
supportive transition, all of which suggested a low risk for
future acts of violence. Russell obtained a low score on a
test that is a predictor of future violence.
record showed steps taken by Russell to improve himself while
incarcerated. In 1981, Russell obtained a diploma through the
GED program and earned credentials of ministry in the
"Church of the God Within." The next year, the
church awarded him an honorary doctor of divinity. The record
shows that Russell completed other Bible studies. In 1988, he
obtained a certificate in welding. Performance reviews show
that Russell had an "exceptional" work history in
prison. Between 1991 and 2016, Russell had 26 misconduct
reports, with the most recent occurring in 2010.
to the PSR, "Russell remains in a Pre-Contemplative
Stage of Change with regard to addressing his criminogenic
needs." Testing tools found Russell to be at a very high
risk to reoffend. The report stated that Russell appeared to
be unwilling to accept he has mental health problems and that
his personality disorder would likely impact efforts to
address his criminogenic needs.
Russell does not see himself as having a mental illness, his
history suggests otherwise. On two occasions in 1969, Russell
was hospitalized at a psychiatric center after exhibiting
violence toward family members. Russell was hospitalized in
1970 with an admission diagnosis of adolescent schizophrenia.
After an evaluation, a doctor felt that Russell
"represented borderline retardation and adolescent
adjustment reaction." Russell acknowledged that as a
juvenile, he was seen by a psychiatrist, and that he was
diagnosed with schizophrenia in 1972. In a Nebraska Penal and
Correctional Complex progress report from March 1975, the
author strongly recommended that Russell be placed in a
mental institution. In a report the following year, the
counselor stated that Russell should be under psychiatric
Neb. 488] Upon admission to a psychiatric hospital in 1978,
Russell indicated that he had no mental disorders. However,
staff perceived him as "having a severe mental disorder,
and the main feature of which is paranoia." An admission
note and mental status examination report from that year
stated that Russell, as an adolescent, carried a knife or a
section of pipe on his person "for his own protection or
in case someone bumped into him or in case he didn't like
someone's face." Russell reported that he had
"attacked people from behind and struck them with the
pipe because he didn't like their looks or because they
had accident[al]ly bumped into him on the street." In
this report, Russell offered strong racial opinions and
indicated that he could get along with African Americans,
"provided that they do not talk to him or look at him
the wrong way." The report showed a diagnostic
impression of "Schizophrenia, Paranoid Type."
shed light on crimes committed by Russell prior to the
murder. In December 1972, a 7-year-old boy reported that
Russell inserted a pencil in the victim's rectum, made
the victim perform oral sex on Russell, and pulled on the
victim's penis and testicles. When interviewed by the
police, Russell stated that among other actions against the
victim, he "tied a cord around [the victim's] neck,
and threatened to hang him over the side of the porch railing
from the third floor for messing with the TV." Russell
told the officer that the victim harassed him, which made
Russell angry, and that Russell was unable to control his
temper. When an officer spoke with Russell's mother, she
informed him that Russell had been staying at the Omaha Home
for Boys because he was "hard to handle, " but that
he was home on holiday leave. She also said that prior to his
admittance to the Omaha Home for Boys, Russell was receiving
care from a doctor for "a [m]ental ...