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State v. Dill

Supreme Court of Nebraska

June 22, 2018

State of Nebraska, appellee,
v.
Jesse M. Dill, 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. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         3. Sentences: Probation and Parole. When a court sentences a defendant to postrelease supervision, it may impose any conditions of postrelease supervision authorized by statute.

         4. Rules of the Supreme Court: Records: Appeal and Error. Neb. Ct. R. App. P. § 2- 109(D)(1)(f) and (g) (rev. 2014) requires that factual recitations be annotated to the record, whether they appear in the statement of facts or argument section of a brief. The failure to do so may result in an appellate court's overlooking a fact or otherwise treating the matter under review as if the represented fact does not exist.

         5. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.

         6. __ . An appellate court does not consider errors which are argued but not assigned.

          Appeal from the District Court for Lancaster County: Lori A. Maret, Judge. Affirmed.

          Joseph D. Nigro, Lancaster County Public Defender, and John C. Jorgensen for appellant.

          [300 Neb. 345] Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

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

          Cassel, J.

         INTRODUCTION

         Jesse M. Dill appeals from a sentence imposing both imprisonment and postrelease supervision in a criminal case. But she assigns error only to the fees and payments required under the postrelease supervision order. We have not previously considered the issue in this context. Because we find no abuse of discretion, we affirm.

         BACKGROUND

         The district court accepted Dill's no contest plea to a Class IIIA felony. The court imposed a determinate sentence of 1 year's imprisonment followed by 18 months of postrelease supervision. The court ordered Dill to pay a number of fees in connection with the postrelease supervision: a $30 administrative enrollment fee, a $25 monthly programming fee, and a $5 monthly fee for chemical testing. The court also ordered Dill to pay costs associated with any evaluations, counseling, or treatment undertaken at the direction of her postrelease supervision officer.

         At the sentencing hearing, neither party offered any evidence. Both parties disclaimed any additions or corrections to the presentence report.

         Dill's counsel objected to a number of the postrelease supervision conditions. With regard to the various fees Dill was ordered to pay, counsel stated that Dill previously had been determined to be indigent and without the financial means to pay fees. Counsel also stated that there had "been no further assessment in regards to her ability to pay." The court overruled the objections and entered a postrelease [300 Neb. 346] supervision order containing the same conditions as had been orally announced.

         Dill filed a timely appeal, and we granted her petition to bypass review by the Nebraska Court of Appeals.

         ASSIGNMENT OF ERROR

         Dill assigns that the court abused its discretion by imposing costs and fees of postrelease supervision upon her.

         STANDARD OF REVIEW

         An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.[1] An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.[2]

         ANALYSIS

         Postrelease supervision is a relatively new concept in Nebraska sentencing law.[3] As such, our case law on the subject is scant. Last year, a defendant sought to challenge the validity of postrelease supervision conditions imposed upon him, but we determined that because he did not challenge those conditions at the sentencing hearing, he waived his challenge.[4] Here, Dill raised her objections at the time of sentencing. This appeal presents our first opportunity to address a preserved challenge to the conditions imposed in connection with a sentence of postrelease supervision. But before we reach Dill's specific arguments, we examine the statutory structure concerning postrelease supervision.

          [300 Neb. 347] Statutory Framework

         The Nebraska Probation Administration Act defines terms pertinent to postrelease supervision.[5] The definition of postrelease supervision is "the portion of a split sentence following a period of incarceration under which a person found guilty of a crime ... is released by a court subject to conditions imposed by the court and subject to supervision by the [Office of Probation Administration]."[6] "Probation," which "includes post-release supervision," is "a sentence under which a person found guilty of a crime upon verdict or plea or adjudicated delinquent or in need of special supervision is released by a court subject to conditions imposed by the court and subject to supervision."[7] And a person sentenced to postrelease supervision is called a "[probationer."[8] The legislative intent is clear. Postrelease supervision is to be treated as a form of probation, and the usual rules of law governing probation will ordinarily apply to postrelease supervision.

         A sentence of postrelease supervision is statutorily mandated for certain lower-level felonies. Except when a term of probation is required by law, statutes compel the imposition of a determinate sentence along with a sentence of postrelease supervision for an offender convicted of a Class III, IIIA, or IV felony.[9] But an offender convicted of one of those enumerated felonies is not subject to postrelease supervision if he or she is also sentenced to imprisonment for a felony with a higher penalty classification.[10] When a court sentences an offender to postrelease supervision, the court shall specify the term of such postrelease supervision.[11]

          [300 Neb. 348] Other statutes apply procedures of probation to postrelease supervision. All sentences of postrelease supervision are served under the jurisdiction of the Office of Probation Administration and are subject to conditions imposed under § 29-2262 and subject to sanctions authorized under § 29-2266.02.[12] A court may revoke a probationer's postrelease supervision upon finding that the probationer violated one of its conditions.[13]

         Statute and Rule Implementing Postrelease Supervision

         The legislation that introduced postrelease supervision into Nebraska's statutes[14] authorized the adoption of rules and regulations governing probation, which, as we have observed, includes postrelease supervision. The Nebraska Probation Administration Act now defines "[r]ules and regulations" to mean "policies and procedures written by the [Office of Probation Administration] and approved by the Supreme Court."[15]

         The act speaks broadly. It authorizes rules and regulations

• "as may be necessary or proper for the operation of the [Office of Probation Administration] or [Nebraska Probation System], "[16]
• "for transitioning individuals on probation across levels of supervision and discharging them from supervision consistent with evidence-based practices, "[17]
•to "ensure supervision resources are prioritized for individuals who are high risk to ...

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