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State v. Russell

Supreme Court of Nebraska

March 30, 2018

State of Nebraska, appellee,
Patrick R. Russell, appellant.

         1. 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.

         2. 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.

         3. 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.

         4. 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.

         5. ___. 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.

          Appeal from the District Court for Douglas County: Thomas A. Otepka, Judge. Affirmed.

          [299 Neb. 484] Thomas C. Riley, Douglas County Public Defender, and Annie O. Hayden for appellant.

          Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Pirtle and Bishop, Judges.

          Cassel, J.


         In 1974, a court sentenced Patrick R. Russell to life imprisonment for a murder he committed at age 17. Following decisions in Miller v. Alabama[1] and State v. Mantich, [2] 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.


         Crime and Direct Appeal

         The facts and circumstances surrounding Russell's crime are set out in greater detail in our decision resolving his direct appeal.[3] 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.

         [299 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 age.

         The district court convicted Russell of murder in the first degree and imposed a sentence of life imprisonment. We affirmed the court's judgment.[4]


         Following decisions in Miller[5] and Mantich, [6] 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 relief.

         The 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.

         The 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.

         Newring 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 favorable.

         Newring 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.

         The 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.

         According 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.

         Although 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 care.

         [299 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."

         The PSR 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 ...

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