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Date: 09-30-2016

Case Style:

State of Nebraska v. Eric Benavides

Case Number: 294 Neb. 902

Judge: Jeff Funke

Court: Nebraska Supreme Court

Plaintiff's Attorney:

Nathan A. Liss

Defendant's Attorney:


Chelsey R. Hartner

Description: Section 29-2204.02 is a new statute created by L.B. 605.4
In relevant part, § 29-2204.02 requires a sentence of probation
for a defendant convicted of a Class IV felony unless
an exception applies and the court states its reasoning on
the record:
(2) If the criminal offense is a Class IV felony, the
court shall impose a sentence of probation unless:
(a) The defendant is concurrently or consecutively sentenced
to imprisonment for any felony other than another
Class IV felony;
(b) The defendant has been deemed a habitual criminal
pursuant to section 29-2221; or
2 See id., § 61.
3 State v. Aguallo, ante p. 177, 881 N.W.2d 918 (2016).
4 See L.B. 605, § 61.
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(c) There are substantial and compelling reasons why
the defendant cannot effectively and safely be supervised
in the community . . . .
(3) If a sentence of probation is not imposed, the court
shall state its reasoning on the record, advise the defendant
of his or her right to appeal the sentence, and impose
a sentence as provided in subsection (1) of this section.
But L.B. 605 also created a new subsection in Neb. Rev.
Stat. § 28-105 (Supp. 2015): “(7) The changes made to the
penalties for Class III, IIIA, and IV felonies by Laws 2015,
LB605, do not apply to any offense committed prior to August
30, 2015, as provided in section 28-116.”5
The newly created Neb. Rev. Stat. § 28-116 (Supp. 2015),
in turn, clarifies that if a defendant committed any element of
an offense before August 30, 2015, the penalty changes under
L.B. 605 shall not be retroactive:
The changes made to the sections listed in this section
by Laws 2015, LB 605, shall not apply to any offense
committed prior to August 30, 2015. Any such offense
shall be construed and punished according to the provisions
of law existing at the time the offense was committed.
For purposes of this section, an offense shall
be deemed to have been committed prior to August 30,
2015, if any element of the offense occurred prior to such
date. The following sections are subject to this provision
. . . .
Section 28-116 lists more than 60 statutes that are explicitly
subject to the nonretroactive provision.
Procedural History
The State charged Benavides for a Class IV felony domestic
assault. The felony charge rested on his knowledge of
his girlfriend’s pregnancy when he assaulted her.6 The State
5 L.B. 605, § 6.
6 See § 28-105 (Cum. Supp. 2014) and Neb. Rev. Stat. §§ 28-115 and
28-323(4) (Cum. Supp. 2014).
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dismissed two other charges under a plea agreement, and
Benavides pleaded guilty to the felony assault charge.
At the sentencing hearing, Benavides argued that he was
a good candidate for probation. Alternatively, he argued that
even though he committed the assault before L.B. 605 took
effect, the court should retroactively apply the penalty changes
related to a sentence of probation. From the bench, the court
disagreed with his statutory interpretation and determined that
the changes were not retroactive.
Court’s Order
In its written order, the court stated that Benavides was not
a good candidate for probation and that a sentence of less than
incarceration would depreciate the seriousness of his conduct.
It found that Benavides needed correctional treatment and
would present a substantial risk of reoffense on probation.
Accordingly, it sentenced him to an indeterminate term of 12
to 18 months’ incarceration, with credit for the 33 days he had
already served.
ASSIGNMENTS OF ERROR
Benavides assigns that the court erred in failing to apply
§ 29-2204.02 in sentencing him and in sentencing him to a
term of incarceration instead of probation.
STANDARD OF REVIEW
[1,2] Statutory interpretation presents a question of law.7 An
appellate court independently reviews questions of law decided
by a lower court.8
[3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.9
7 See Aguallo, supra note 3.
8 In re Interest of Alan L., ante p. 261, 882 N.W.2d 682 (2016).
9 State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016).
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ANALYSIS
Court Was Not Required to
Give Retroactive Effect
to § 29-2204.02
[4] Benavides contends that under the sentencing doctrine
set out in State v. Randolph,10 the court erred in failing to
apply the new penalty provisions under § 29-2204.02 for
Class IV felonies. Unless an exception applies,11 Randolph
holds that “where a criminal statute is amended by mitigating
the punishment, after the commission of a prohibited act
but before final judgment, the punishment is that provided by
the amendatory act unless the Legislature has specifically provided
otherwise.”12 Benavides argues that the nonretroactive
language in § 28-105(7) (Supp. 2015) is limited to the “ranges
of imprisonment and post release supervision” for Class III,
IIIA, and IV felonies that were committed before August 30,
2015.13 He argues that § 28-105(7) has no application to probation
statutes amended by L.B. 605. Because the nonretroactive
provision is absent from § 29-2204.02, he argues that it applies
to crimes committed before its effective date. The State contends
that Randolph does not apply because in § 28-105(7),
the Legislature clearly stated that the sentencing changes under
L.B. 605 are not retroactive.
[5-7] A court gives statutory language its plain and ordinary
meaning and will not look beyond the statute to determine
legislative intent when the words are plain, direct, and
unambiguous.14 We give effect to the purpose and intent of
the Legislature as ascertained from the entire language of the
10 See State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971).
11 See State v. Duncan, 291 Neb. 1003, 870 N.W.2d 422 (2015).
12 Randolph, supra note 10, 186 Neb. at 302, 183 N.W.2d at 228. Accord
State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999) (citing cases).
13 Reply brief for appellant at 5.
14 State v. Goynes, 293 Neb. 288, 876 N.W.2d 912 (2016).
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statute considered in its plain, ordinary, and popular sense.15
Components of a series or collection of statutes pertaining
to a certain subject matter are in pari materia and should be
conjunctively considered and construed to determine the intent
of the Legislature, so that different provisions are consistent,
harmonious, and sensible.16
Benavides’ argument is contrary to the plain language of
§ 28-105(7), which states, “The changes made to the penalties
for Class III, IIIA, and IV felonies by Laws 2015, LB605,
do not apply to any offense committed prior to August 30,
2015, as provided in section 28-116.” (Emphasis supplied.)
[8,9] A sentence of probation is one possible penalty for
a criminal conviction (unless a defendant is ineligible for
probation).17 The nonretroactive provision under § 28-105(7)
broadly applies to penalty changes created by L.B. 605 for
Class III, IIIA, and IV felonies, which changes include changes
to a penalty of probation. The changes imposed by § 29-2204.02
curtail a court’s sentencing discretion by requiring a court to
impose a sentence of probation for Class IV felony convictions
unless an exception applies. Because the Legislature clearly
intended to affect the type of penalty a court could impose,
we conclude that the presumption in favor of probation is a
penalty change. Notably, Benavides specifically argues that
§ 29-2204.02 directs a court how to sentence a defendant for a
Class IV felony conviction. We conclude that there is no merit
to his contention that § 28-105(7) does not apply to the penalty
change in favor of probation.
Moreover, we recently decided a similar issue in Aguallo.18
There, the defendant pleaded guilty to third degree sexual
15 See id.
16 See Aguallo, supra note 3.
17 See, § 28-105(4) (Cum. Supp. 2014); § 29-2204.02; Neb. Rev. Stat.
§ 29-2262 (Cum. Supp. 2014).
18 See Aguallo, supra note 3.
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Cite as 294 Neb. 902
assault of a child, a Class IIIA felony. The defendant committed
the offense before August 30, 2015, and the court sentenced
him after the effective date. The maximum penalty of
imprisonment was 5 years before L.B. 605 and 3 years afterward.
The trial court concluded that the reduced penalty was
not retroactive.
On appeal, we rejected the defendant’s argument that the
reduced penalty for a Class IIIA felony conviction was retroactive.
We recognized that in setting out a nonretroactive restriction
in § 28-105(7), the Legislature referred to § 28-116. As
explained, § 28-116 clarifies that the nonretroactive restriction
for offenses committed before August 30, 2015, applies if any
element of the offense was committed before that date and lists
statutes that are subject to the restriction. But we rejected the
defendant’s argument that because the statute proscribing his
conduct was not listed in § 28-116, the sentencing change for
his Class IIIA offense was retroactive. We concluded that the
offense statute was not listed in § 28-116 because L.B. 605 did
not substantively change the offense:
L.B. 605 did not make any changes to the classification
or the elements of that crime. L.B. 605 did, however,
make changes to the penalties for all Class IIIA felonies,
and § 28-320.01 is a Class IIIA felony. It is clear
from the plain language of §§ 28-105(7) and 28-116 that
the Legislature did not intend the penalty reductions to
Class IIIA felonies to apply retroactively to offenses committed
prior to the effective date of L.B. 605. It is thus
immaterial that the offense [the defendant] committed is
not among those listed in § 28-116, and his argument to
the contrary is without merit.19
[10] Although Benavides’ argument is somewhat different,
we reasoned in Aguallo that nonretroactive provisions
in §§ 28-105(7) and 28-116 applied to the penalty changes
for Class IIIA felonies regardless of whether the Class IIIA
19 Id. at 183, 881 N.W.2d at 923.
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offense was one of the statutes listed in § 28-116. The same
provisions prohibit retroactive application of the changed
penalties for Class IV felonies if any element of the offense
was committed before August 30, 2015. So our reasoning in
Aguallo applies here. We conclude that the Legislature did not
intend for the penalty changes under § 29-2204.02 in favor
of a sentence of probation for Class IV felony convictions to
be retroactive. Accordingly, the court did not err in failing to
consider them.
Court Did Not Abuse Its
Sentenc ing Discretion
Benavides contends that the court abused its discretion
under Neb. Rev. Stat. § 29-2260(2) (Supp. 2015) in imposing
a sentence of incarceration instead of probation. Section
29-2260(2) sets out the Legislature’s sentencing guidelines
for misdemeanor and felony offenses that do not require a
mandatory or mandatory minimum sentence of imprisonment.
Benavides argues that (1) he was only 19 years old when he
committed this crime, (2) he had a limited criminal history, (3)
the fetus was not harmed, and (4) he was working to support
his family and to address his addiction issues. He also relies
on § 29-2204.02’s requirement that a court impose a sentence
of probation for a Class IV felony unless there are compelling
factors weighing against probation. As explained, however,
§ 29-2204.02 did not apply to the court’s sentencing discretion
here.
[11,12] In imposing a sentence, a sentencing court is not
limited to any mathematically applied set of factors.20 The
appropriateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts surrounding
the defendant’s life.21 We will not disturb a sentence
20 State v. Sikes, 286 Neb. 38, 834 N.W.2d 609 (2013).
21 Id.
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imposed within the statutory limits absent an abuse of discretion
by the trial court.22
The State correctly argues that because Benavides’ offense
occurred before the effective date of L.B. 605, § 28-105 (Cum.
Supp. 2014) governed the statutory limits for the court’s sentence.
For Class IV felonies under the pre-2015 version of
§ 28-105, a court could order a term of imprisonment of up to
5 years, a $5,000 fine, or both. The State argues that the court
did not abuse its discretion because Benavides had previously
failed at probation, had some criminal history, and committed
a violent offense.
At the sentencing hearing, the court stated that it was glad
to hear Benavides was seeking addiction treatment and trying
to be involved in his child’s life. It encouraged him to continue
to be supportive of his child.
However, the factual basis indicated that Benavides
assaulted his girlfriend by throwing her on a bed and holding
her down with his hand over her face, all of which caused
her pain. According to his girlfriend’s written statement, she
was almost 6 months pregnant when the assault occurred.
Because his offense involved assaultive behavior toward a
pregnant woman that put both her and the fetus at risk, the
court believed that a sentence of probation would send the
wrong message, depreciate the seriousness of his offense, and
promote disrespect for the law.
We conclude that there is no merit to Benavides’ contention
that the court abused its sentencing discretion.

Outcome:

We conclude that the court was not required to retroactively apply the sentencing requirements under § 29-2204.02. Nor
did it abuse its discretion in imposing a sentence of incarceration
instead of probation.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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