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.
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
Sentences: Probation and Parole. When a
court sentences a defendant to postrelease supervision, it
may impose any conditions of postrelease supervision
authorized by statute.
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.
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
6. __ .
An appellate court does not consider errors which are argued
but not assigned.
from the District Court for Lancaster County: Lori A. Maret,
D. Nigro, Lancaster County Public Defender, and John C.
Jorgensen for appellant.
Neb. 345] Douglas J. Peterson, Attorney General, and Kimberly
A. Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
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.
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.
sentencing hearing, neither party offered any evidence. Both
parties disclaimed any additions or corrections to the
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.
filed a timely appeal, and we granted her petition to bypass
review by the Nebraska Court of Appeals.
assigns that the court abused its discretion by imposing
costs and fees of postrelease supervision upon her.
appellate court will not disturb a sentence imposed within
the statutory limits absent an abuse of discretion by the
trial court. 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.
supervision is a relatively new concept in Nebraska
sentencing law. 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. 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.
Neb. 347] Statutory Framework
Nebraska Probation Administration Act defines terms pertinent
to postrelease supervision. 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]."
"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." And a person sentenced to postrelease
supervision is called a
"[probationer." 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.
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. 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. When a court sentences an offender to
postrelease supervision, the court shall specify the term of
such postrelease supervision.
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. A court may revoke a
probationer's postrelease supervision upon finding that
the probationer violated one of its conditions.
and Rule Implementing Postrelease Supervision
legislation that introduced postrelease supervision into
Nebraska's statutes 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."
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], "
• "for transitioning individuals on probation
across levels of supervision and discharging them from
supervision consistent with evidence-based practices,
•to "ensure supervision resources are prioritized
for individuals who are high risk to ...