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Date: 03-19-2017

Case Style:

State of Nebraska v. Dale V. Nollen

Case Number: 296 Neb. 94

Judge: Max J. Kelch

Court: Nebraska Supreme Court

Plaintiff's Attorney:

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

Defendant's Attorney:



Adam J. Sipple



Description:

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Nollen was 17 years old in January 1983 when he and a
friend, Brian D. Smith, participated in criminal acts which led
to the death of Mary Jo Hovendick (Mary Jo). Nollen turned
himself in to the police, pled guilty to first degree murder, and
was sentenced to mandatory life imprisonment.
In 2010, the U.S. Supreme Court decided Graham,3 in
which it held that the Eighth Amendment prohibits the imposition
of life imprisonment without parole upon juvenile offenders
who have not committed homicide. In 2012, in Miller,4 the
Court held that the Eighth Amendment prohibits mandatory
life imprisonment without parole for juvenile offenders.
In 2013, Nollen filed a motion for postconviction relief,
which was granted. The district court vacated Nollen’s sentence
and ordered a presentence report and comprehensive
mental health examination pursuant to Neb. Rev. Stat.
§ 28-105.02 (Reissue 2016). A resentencing hearing was set
for January 4, 2016.
2. Resentenc ing Hearing
At the resentencing hearing, Nollen’s counsel argued that
Nollen should receive a lesser sentence because of mitigating
circumstances at the time of the crime and because Nollen’s
character had been reformed while he was in prison. In summarizing
the evidence presented at the resentencing hearing,
we take a chronological approach. We first review the
evidence of mitigating circumstances leading up to Nollen’s
offense. We next review the evidence of the offense, Nollen’s
confession and conviction, Nollen’s time in prison, and the
results of a comprehensive mental health examination conducted
on Nollen in 2015. Finally, we set forth the facts concerning
the district court’s disposition of this case.
(a) Mitigating Circumstances
The evidence of mitigating circumstances comes mostly
from the presentence report. According to the presentence
report, Nollen ran away from home on December 31, 1982—
11 days before the events leading to his conviction. Nollen
reported that at the time of his offense, his father was an
alcoholic and was physically abusive toward Nollen and his
mother. His mother was also an alcoholic.
In 1983, Nollen’s neighbors gave written statements indicating
that there was “constant fighting” within Nollen’s home
and that Nollen was often left home alone with his younger
sister. One neighbor stated that Nollen “always seemed eager
to do things with [the neighbor’s] family” and would sometimes
visit just to “get away from home when there were
family problems.” Other Blair, Nebraska, citizens were aware
of Nollen’s parents’ drinking problems and that Nollen’s
homelife was “not very pleasant.” Records indicate that the
police received several calls regarding the Nollen residence
for such things as child abuse and neglect. Due to a fire,
however, reports made in connection with those calls are
not available.
On January 3 or 4, 1983 (2 to 3 days after Nollen left his
home), Nollen dropped out of school. He was in his senior
year. Nollen reported that high school was “‘rough,’” that he
didn’t “‘fit in,’” and that other students made fun of him for
wearing “hand-me-down” clothing.
On January 5, 1983, Smith attended a church choir rehearsal
in Blair. According to a statement made by the director of the
choir, Nollen went to her and informed her of his plans to
run away to Missouri with his friend, Smith. The director and
the director’s mother, who was an accompanist for the group,
asked Nollen if he wanted to talk to the reverend about it. The
director’s mother found the reverend, and the three of them
talked to Nollen about why he wanted to run away. Nollen
talked about “bad family life—parents drinking, parents taking
his money, no one ever caring.” Although the three adults
tried to convince Nollen to finish school and stay home at
least until he was 18, Nollen stated that he was “‘at the end
of [his] rope.’”
(b) The Offense
The following version of the offense is taken primarily
from Nollen’s 2007 application for commutation, which was
admitted into evidence at his resentencing hearing. The application
was also admitted into evidence at Smith’s resentencing
hearing. Accordingly, the facts set forth below are almost
identical to those set forth in this court’s opinion disposing of
Smith’s appeal.5
On January 11, 1983, Nollen was living with his friend
Smith’s older brother and the older brother’s girlfriend. Nollen
had “a bit of a crush” on her and accompanied her to Omaha,
Nebraska, for a job interview. On the way back to Blair from
Omaha, she asked Nollen if he knew where they could get $50
to pay a gas bill. Nollen thought for a while and came up with
the idea to rob a doughnut shop in Blair. He had worked there
previously and was familiar with the layout. When Nollen
worked there, the money from a day’s sales was left in the
store overnight and deposited the next morning by the owner.
Nollen explained in the application, “[A]ll I would have to
do is go in the back door, go down stairs to the basement and
wait until everyone left. Then, go upstairs, get the money and
leave . . . .” Smith’s older brother’s girlfriend agreed to the
plan, but told Nollen not to tell Smith’s older brother because
he would not approve.
When Smith older’s brother’s girlfriend and Nollen returned
to Smith’s residence, Nollen told Smith about the plan and
asked Smith if he wanted to go with him. Smith said he did.

At around 3 p.m. on January 11, 1983, Smith and Nollen
went into the doughnut shop to see who was working. It was
21-year-old Mary Jo. After Smith and Nollen talked to Mary
Jo briefly, they left the doughnut shop through the front door,
walked around to the back alley, through a back door of the
doughnut shop, and into the basement of the shop.
Smith and Nollen waited in the basement. They “smoked a
couple bowls of pot and talked about how pretty Mary Jo is.”
Nollen made a comment “about the only way [they] would
have a chance with her would be to take it.” Smith asked
Nollen if he wanted to, and Nollen laughed and said “okay.”
According to Nollen, they got up and walked toward the stairs
and Nollen then stopped and said, “[F]___ that, if we did that
we would have to kill her so she wouldn’t tell on us.” Smith
and Nollen went back and sat down again.
Smith and Nollen did not talk much for the next hour or so.
During that time, Nollen thought about how pretty Mary Jo
was and “how nice it would be to have sex with her.” Nollen
knew Mary Jo from school. Nollen wrote, “She had the reputation
of being really quiet, shy - a loner but popular. She never
had a boyfriend, so I was thinking if I had sex with her and
messed up, she would never know because she has never been
with anyone.” Nollen “fell asleep thinking about [Mary Jo],”
and Smith woke him up about an hour later.
Because neither Smith nor Nollen had a watch, neither one
knew how long they had been waiting. Without knowing what
time it was, they walked upstairs to see if they could hear
anything. They determined that the store was closed, because
Mary Jo was in the office. Nollen could hear her counting the
money and told Smith that she was getting the money ready
for deposit. He explained that this meant that she would take
it to the bank and there would be only $20 left in the register
(instead of about $200). Nollen asked Smith what he wanted to
do, and Smith said, “[L]et’s get it all.”
Smith ran to the stairs and hid, and Nollen waited by the
office door. After Mary Jo saw Nollen, Nollen walked up to
her and put his hand over her mouth so she would not scream.
Nollen took her out to the hallway and instructed Smith to
go and get the money. Smith got the money and put it in
his pockets.
Nollen asked Mary Jo about her car, and she told him where
it was. Nollen told Smith that he was going to get the car and
that when Nollen honked the horn, Smith was to come out with
Mary Jo. Smith complied. After the two of them got into the
car with Nollen, he drove off. They stopped at a gas station,
and Smith got out and put gas in the car, then went in and
paid for it. After they left the gas station, Smith said he wanted
to drive, so Smith and Nollen changed places. Smith drove
around country roads while Nollen went through Mary Jo’s
purse, took $20 and gave it to Smith, then threw her purse and
its contents out the window.
Mary Jo had been sitting on the center console, so Nollen
told her she could sit on his lap and pulled her toward him.
Mary Jo slid over and sat on one of Nollen’s legs. According
to Nollen, he started thinking about having sex with Mary Jo
again. He wrote, “It was really intense now, because I could
smell her perfume and feel how soft her skin is.” Nollen
told Smith to pull over, and Smith complied. Nollen forced
Mary Jo into the back seat and climbed back there with her.
He told Mary Jo to take her clothes off. At first, she did not
comply, but then Nollen told her angrily “so she would listen.”
Eventually Mary Jo complied. Nollen got on top of Mary Jo
and penetrated her with his fingers while Mary Jo tried to push
him away and asked him to stop. Nollen then tried to penetrate
her with his penis, but was unsuccessful because Mary Jo “was
pushing on [his] sides.” Nollen wrote, “I was mad because I
was not getting what I wanted, so I rubbed against her until I
got off.”
Nollen then asked Smith “if he wanted to come back” with
Mary Jo, and Smith said that he did. The two switched places.
Nollen said that he could hear Smith telling Mary Jo to kiss
him and that he then “turned the radio up and started to figure
out how [they] were going to get out of this.” Nollen said he
“knew that the only way would be to kill Mary Jo but, [he] did
not know how it would happen.”
Eventually, Smith and Nollen traded places again, and Smith
drove the car back toward Blair. Nollen told Mary Jo to get
dressed, and he tied her hands up with a ribbon that had been
around her neck. Nollen then got back in the front seat of the
car. Smith drove the car through Blair to a trailer park “by
the river.”
Smith and Nollen got out of the car and looked around.
Nollen wrote, “We did not talk but, I think we both knew what
was going to happen. I look at the bridge and thought we could
throw her over the side. So I told [Smith] that when we get
half way [sic] over the bridge to stop [and] he said okay . . . .”
When they got halfway across the bridge, Nollen got “really
scared” and worried that someone might see, so he told Smith
to keep driving. Smith drove across the bridge and turned to
go underneath it. They pulled up to a dock by the river. Nollen
got out of the car, and Smith followed.
Nollen wrote, “I figured, I would kill her by stabbing her.”
Nollen asked Smith for a knife that he had taken from the
doughnut shop, and Smith gave it to him. Nollen pulled the
passenger seat forward and looked at Mary Jo. When Nollen
brought the knife toward Mary Jo, she screamed and started
crying. Nollen looked at her and told her he was sorry. She
kept crying, and Nollen threw the knife into the river and told
her, “‘[S]ee, I [sic] not going to hurt you.’” Nollen wrote that
he looked at Smith and said he could not do it. According to
Nollen, “[Smith] shrugged and leaned into the car. The car
jumped forward and I jumped back. The car rolled down the
dock into the river. I seen the car hit the water and I just stood
there.” Nollen then told Smith that they “needed to get the
hell out of there.” The car was still floating in the water when
they left.
This version of events is largely consistent with the version
that Nollen told the police after he was convicted and
sentenced in January 1983. In 1983, Nollen added that Smith
had rolled down the driver’s side window all the way. Before
Smith put the car into gear to drive into the river, Nollen told
Smith to roll it up so that it was open only 3 inches. The passenger’s
side was also open about 3 inches.
(c) Nollen’s Confession and Conviction
The day after the offense, Smith and Nollen went to a
bowling alley with Smith’s older brother and his girlfriend.
After an emotional encounter with Nollen’s parents, Nollen
hugged Smith’s older brother and started shaking. He told
Smith, “‘I’ve got to tell him. I’ve got to tell him.’” Smith
told Nollen to go ahead. Nollen told Smith’s older brother
about how they had robbed the doughnut shop and “killed
a girl.” Early the next morning, Smith’s older brother took
Smith and Nollen to the Blair Police Department, where they
were arrested.
Before questioning Smith and Nollen, police waited for
their parents to arrive. An officer contacted Nollen’s mother
to tell her that her son was in custody and to ask her to come
to the station. She asked what he was being charged with,
and the officer advised her that he was being charged with
murder but would not explain further over the telephone. She
stated, “[Y]ou will or else.” The officer explained that he
was very busy and could not continue arguing over the telephone.
Nollen’s mother then asked the officer what he was
“trying to pull” and told him he was “pushing [his] luck.”
The officer thanked her and hung up. Five minutes later,
Nollen’s father called the officer, demanding the details of the
charge. The officer asked the father to come to the station, but
he refused.
Eventually, Nollen’s parents were persuaded to come to the
station. After an officer “read the Miranda warnings” to Nollen
and his parents, the parents stated that they did not want Nollen
to answer any questions without an attorney. Police honored
the request and did not ask Nollen any questions.
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Prior to Nollen’s plea hearing, Nollen was evaluated for
competency. The evaluator concluded that Nollen was competent
to assist in his own defense. He diagnosed Nollen
with “Conduct Disorder-Socialized, Aggressive,” noting that
“[w]ere [Nollen] 18, [he] would seriously consider a diagnosis
of Antisocial Personality Disorder.”
On January 24, 1983, Nollen pled guilty to first degree murder,
a Class IA felony, which carried a mandatory sentence of
life imprisonment. In exchange for Nollen’s plea, the county
attorney agreed to drop charges of kidnapping, sexual assault,
robbery, and burglary. Nollen waived his right to a presentence
investigation and was thus sentenced the same day he entered
his guilty plea.
(d) Time in Prison
Since Nollen began serving his sentence in 1983, he has
earned his diploma through the GED program and earned an
associate degree in business administration from a community
college. He has also earned a number of institutional programming
certificates. Nollen completed an inpatient sex offender
program, generic outpatient levels format programming, and
substance abuse programming.
At the resentencing hearing, Nollen called three Department
of Correctional Services (DCS) employees to testify about the
programs he participated in and the employees’ impressions of
Nollen as an inmate. Their testimony is summarized below.
(i) David Erickson
David Erickson began working as an officer for DCS in 1997
and became familiar with Nollen around that time. Sometime
during or prior to 2000, Erickson became a housing unit manager
and was assigned to manage Nollen’s unit. During the 4 to
5 years that Erickson served as Nollen’s housing unit manager,
Erickson interacted with Nollen on a daily basis and was aware
of some of the activities Nollen was involved in. For example,
Erickson was aware that Nollen was “heavily involved” in
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Bible studies that took place in the yard and also with a Sunday
night worship group.
Nollen was also selected to serve as the representative for
his unit wing for the unit’s “town hall” meetings. In that role,
he was responsible for interacting with inmates from his wing
to ensure that the wing’s grievances were aired. Nollen was
selected by staff based on his disciplinary history, his rapport
among the staff and inmates in the unit, and his longevity in
the unit. Erickson testified that he could not remember a time
when Nollen was not the representative for his wing.
Nollen was also selected as one of four or five inmates to
work in the unit’s supply room. This “high-profile” position
requires applicants to interview for the job and go through a
vetting process where institutional behavior and programming
are considered. According to Erickson, Nollen has held a few
other “high-profile” positions, including in a workshop and a
medical quarter.
Erickson also testified about Nollen’s history of misconduct
reports. However, first, Erickson explained the use of “misconduct
reports” within the Omaha Correctional Center. He
explained that when an inmate is assigned to a housing unit, he
or she is given a copy of the housing unit rules. If the inmate
violates one of the rules, a misconduct report may be issued.
Misconduct reports are issued for such things as loitering in a
no-loitering area, use of abusive language, gestures, fighting, et
cetera. Erickson testified that it is not uncommon for an inmate
to receive 5 to 10 misconduct reports per month.
A printout of Nollen’s report history shows that from
March 1990 to February 2012 (a period of 22 years), Nollen
received five misconduct reports—a number that Erickson
described as “extremely minimal.” Erickson testified that it
was very possible that Nollen had misconduct reports prior to
1990, but that the older reports may not have been added to a
newer system.
For the first three instances of misconduct, Nollen received
verbal reprimands. According to Erickson, this is one of the
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lowest-severity sanctions that can be imposed. Nollen received
his fourth misconduct report and a sanction of 10 hours of extra
duty for giving another inmate a haircut. Then on February 8,
2012, Nollen received another misconduct report and a sanction
of 20 hours’ extra duty for “disruption.” According to
Erickson, Nollen got into a nonphysical argument with a supervisor
in one of the shops in which Nollen worked.
When asked how he would describe Nollen as an inmate,
Erickson stated that “[H]is behavior has been more than acceptable.
I can’t recall an issue, basically, any disciplinary matter
with him of an aggressive or violent sense . . . . [H]e does not
get in trouble. He is very diligent in his duties. He receives
above-average work reports.” Erickson added that Nollen was
a “leader amongst the inmates” and that he communicated
positively with other inmates. Erickson testified that Nollen’s
interactions with staff and other inmates have been of a professional
manner.
(ii) David Hanson
David Hanson has worked as the “East Gate officer” at the
Omaha Correctional Center for the 21Ú2 to 3 years preceding
trial. His job includes supervising inmates in the area near
the center’s east gate, which is where the supply room and all
the shops are located. Hanson testified that he interacted with
Nollen on a daily basis, discussing such things as the weather,
issues with Nollen’s family, religious topics, and Nollen’s guitar
playing.
When asked how Hanson would describe Nollen as an
inmate, Hanson said, “Nollen [is] a very cooperative inmate.
I’ve had no issues with him. He’s always been very respectful
not only of myself, but other individuals, whether it be other
inmates, other people that he’s working with, or . . . the civilian
vendors that come in. His demeanor has been pleasant.”
(iii) Cassandra McCutcheon
Cassandra McCutcheon is a caseworker whose primary
responsibilities concerned the safety and sanitation of the
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inmates housed within Nollen’s unit. Since 2014, McCutcheon
had interacted with Nollen on a daily basis and was familiar
with some of the activities that Nollen had been involved in.
McCutcheon testified that Nollen participated in a foster
dog program in which he cared for and trained dogs waiting
to be adopted from the Nebraska Humane Society. To participate
in the program, an inmate must interview for the position
and meet certain standards regarding his or her classification
and history of misconduct reports. The applicants are then
selected by both DCS and the Nebraska Humane Society staff.
Out of 160 inmates, Nollen was selected as one of 10 dog
handlers. McCutcheon described Nollen as being “very good
with dogs” and stated that he was patient, kind, and gentle
with the dogs.
As for other evidence of Nollen’s time in prison, the State
offered an exhibit entitled “Psych Evaluations and Data.” The
exhibit includes assessments conducted on Nollen while he
was incarcerated, including a number of “Multiphasic Sex
Inventory” assessments ranging from 1986 to 1997. In its brief
on appeal, the State asserts that these assessments suggest
that Nollen had sexually deviant interests. In Nollen’s reply,
he argues that no witness testified “about the accuracy, meaning,
and significance” of these random “excerpts” pulled from
Nollen’s record and that therefore, the State is asking the court
to speculate about the almost 20-year-old assessments.6
The exhibit also includes a psychological evaluation performed
on Nollen in 1993. The psychologist performing the
evaluation concluded:
Nollen appears to have a number of personality features
characteristic of an anti-social personality. He is impulsive
and egocentric. He tends to lack concern about
the welfare of others and has trouble dealing with rules
and authority. He appears to be at a stage of treatment
where he is aware of some of the problem areas, and is
6 Reply brief for appellant at 1.
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attempting to deal with such in rather superficial ways. .
. . Nollen also has a big problem with the abuse of alcohol.
He has shown some interest in self-improvement
by taking vocational and college classes, and by participating
in mental health programming. He has held the
carpentry shop work assignment since 1986. In view of
. . . Nollen’s achievements and satisfactory institutional
adjustment, this study can support the idea of promotion
to Minimum A custody.
(e) 2015 Mental Health Examination
In 2015, Dr. Kirk Newring performed a comprehensive mental
health examination on Nollen. Newring is a psychologist
working in Papillion, Nebraska, specializing in court-involved
mental health and behavioral health. In conducting Nollen’s
examination, Newring attempted to address the following mitigating
factors, which are set forth in § 28-105.02(2):
(a) The convicted person’s age at the time of the
offense;
(b) The impetuosity of the convicted person;
(c) The convicted person’s family and community
environment;
(d) The convicted person’s ability to appreciate the
risks and consequences of the conduct; [and]
(e) The convicted person’s intellectual capacity[.]
In addition to evaluating the above factors and how they contributed
to Nollen’s offense, Newring also assessed Nollen’s
risk of future violence and future sexual violence. Newring
then submitted a report with his findings and conclusions, and
he also testified at the resentencing hearing.
(i) Age
Nollen was 17 years old at the time of the offense. Newring
testified that this was significant for sentencing purposes,
because “what we know about neuropsychological development
now is that the executive functioning, the decisionmaking
capacities, are not fully formed until a person is age
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25.” According to Newring, at 17, Nollen’s brain was not fully
developed and Nollen was thus more likely to act impulsively
and take risks.
As evidence of the research on the neuropsychological
development of adolescents, Newring attached to his report
an amici curiae brief filed by the American Psychological
Association, amongst others, in Graham.7 That brief was also
an exhibit in State v. Smith,8 and we summarized its content in
that case.
(ii) Impetuosity
According to Newring, in psychology, “impetuosity” refers
to “the person’s impulsivity, decision-making, and deliberative
processes.” Newring testified that juveniles typically tend to
be more impulsive than adults because the prefrontal cortex of
the brain is not fully developed. The prefrontal cortex is the
portion of the brain responsible for executive functioning, decisionmaking,
and the weighing of risks and rewards. Newring
testified that with the influence of testosterone, “an adolescent
male is going to have great difficulty inhibiting or stopping
behavior, especially when there’s goal-driven behavior, where
there’s a physical reward, a tangible reward, or a sexual reward
clearly present.”
Although “the benefit-seeking system is raging” for all adolescents,
Newring admitted that most adolescents “don’t go out
and do the things . . . Nollen did.” He testified that risk factors
of youthful violence include exposure to violence in the home,
substance abuse, “delinquent peer group,” and poor school
achievement. Newring testified that all risk factors were present
in Nollen’s case.
On cross-examination, Newring was asked why none of
Nollen’s siblings, who grew up in the same environment, committed
acts such as Nollen. Newring stated that the primary
7 Graham v. Florida, supra note 2.
8 See State v. Smith, supra note 5.
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reason was that “they’re women and women tend to engage in
violent acts less often than men.” But Newring added, “It’s my
understanding that both [of Nollen’s] sisters have had psychological
struggles over their entire lives.”
According to Newring, Nollen’s problem-solving approach
at age 17 suggested that Nollen was “an impetuous young
man” whose planning and deliberate processes were focused
on the next 24 hours or less. Newring explained that as an
adolescent, Nollen tended to run away from his problems
(e.g., literally running away from home or “pour[ing] booze”
on his psychological pain). If he did not run away from his
problems, he took short-term solutions (e.g., stealing money,
rather than getting a job and saving money). Newring testified
that Nollen’s way of dealing with his problems suggested that
Nollen’s underdeveloped brain allowed him to see only immediate
and short-term solutions rather than long-term or more
global solutions. When applied to the challenges Nollen faced
on the day of the offense, Newring testified, it resulted in a
series of bad decisions that led to the only option Nollen could
see: Mary Jo’s death.
(iii) Family and Community Environment
In relation to Nollen’s family and community environment,
Newring testified:
[Nollen] grew up in a home where the mother and father
liked to go out and drink, come home, and it was described
more often that the mother would initiate a verbal fight,
the father would return with a physical aggressive move,
and that [Nollen] would sometimes try and break it up
and get involved.
[Nollen] was beaten up by his dad, [Nollen] was
involved in fights with his mom and dad, his older sister
was involved in fights with mom and dad, [Nollen] and
his older sister were left to raise themselves and their
younger sister. This all suggests as a young man [Nollen]
was tasked with psychological social development burdens
that he was not equipped to address.
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. . . .
Those are the things that stood out about [Nollen’s]
early childhood social history, the large amount of family
conflict, the modeling of substance abuse, and that family
members spoke of [Nollen’s] yearning to escape the
house and yearning for some healthy guidance.
Newring noted that Nollen was “almost desperate to get
the approval of others.” Because Nollen came from a poor
family and was picked on by peers at school, “the only peer
group [Nollen] could find [was] these over-malcontent and
delinquents, and that’s where he was able to find a harbor in
the storm.” Newring testified that “[p]leasing this group led
to increased substance abuse, just as was modeled at home,
increasing in rule-breaking behavior because that’s what was
modeled by this peer group, and these activities are consistent
with what we know about peer pressure and peer influences in
late adolescence in males.”
As for peer pressure, Newring testified that since the
time of the research that informed the Supreme Court ruling
in Miller, followup studies have shown that “it’s not just
direct peer influence, but the perception of peer influence.”9
Newring explained, “[I]t’s not just my peers told me I need
to drink, but I hold the belief that my peers expect me to
drink.” Newring related this to Nollen and his codefendant,
Smith, opining that neither of them had a plan with respect to
Mary Jo, but that both went along with what they thought was
expected of them.
(iv) Ability to Appreciate Risks
and Evaluate Consequences
Newring testified that although juveniles may be able to
identify risks and consequences, they may be unable to balance
risks and rewards the same way a fully formed adult would.
As to Nollen’s ability to appreciate risks and consequences,
Newring reported:
9 See Miller v. Alabama, supra note 1.
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[Nollen]’s plan was poorly-conceived, and he clearly
demonstrated an inability to assess the risk and likely
outcomes of his actions; each decision point led him to
cho[o]se the next immediate solution that was availed to
him. After he was committed to the robbery, each poor
decision further compounded his error, leaving him with
no (at the time) readily perceptible alternative.
(v) Intellectual Capacity
As for Nollen’s intellectual capacity, Newring testified that
Nollen’s intellectual deficits at the time of the crime impacted
his ability to generate solutions and articulate his needs.
Newring noted a relative deficit in Nollen’s verbal intelligence,
which he attributed to Nollen’s adverse childhood
experiences.
At the resentencing hearing, Newring was confronted with
the statement made by the competency evaluator in 1983 that
had Nollen been 18, the evaluator would seriously consider a
diagnosis of antisocial personality disorder. Newring testified
that back in 1983, it was believed that when a subject’s performance
score exceeded his or her verbal score by a certain
number (as Nollen’s did by 11), such a differential was indicative
of individuals who act out frustrations, such as sociopaths
and juvenile delinquents. Newring explained current research
shows that poor verbal scores can instead be linked to adverse
childhood experience. He explained that children enduring
trauma must focus more on day-to-day survival and adapting
to stress rather than building the neuroconnections that allow
verbal skills to be strengthened. Newring testified that Nollen’s
scores were consistent with those of a person who had a history
of childhood abuse, neglect, and trauma.
(vi) Risk Assessment
Newring testified that Nollen is “low risk” for future
acts of violence, is less likely than the average male in
the community to have psychopathy, and suffers from no
major health disorder. Newring noted that the clinical violent
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offender review team at DCS recommended no further treatment
for Nollen.
Newring also testified that Nollen was “low risk” for recidivism
in terms of a sex offense. This assessment was based
on Nollen’s scores from two different instruments. However,
Newring admitted that Nollen was at a higher risk of recidivism
compared to men in the general population. He explained that
this was because Nollen had been adjudicated and that after 10
years, Nollen’s assessed risk for reoffense will be equal to the
community level. Newring also noted that although the inpatient
sex offender program’s clinical review team is “very conservative
and tend[s] to overrecommend treatment,” in Nollen’s
case, the team recommended no further treatment.
On cross-examination, Newring was asked if he recalled
seeing a report from 1988 that indicated Nollen had rape fantasies
about prison staff. Newring responded that he recalled
“discussions of sexual fantasies involving staff, and typically
at the time staff would have referred to that as rape fantasies
because it couldn’t be a consensual act.” Newring testified that
he and Nollen had discussed Nollen’s romantic fantasies and
that none of the fantasies were exploitive, aberrant, or unusual.
Additionally, after conducting an assessment to identify atypical
or disordered sexual behavior and paraphilic interests,
Newring reported that Nollen’s scores were generally within
normal limits.
(vii) Newring’s Conclusion
In his report, Newring concluded:
[T]he acts that led to . . . Nollen’s conviction are rooted
in his history of adverse childhood experience, emotional
avoidance, substance abuse, poor school achievement,
and seeking the approval of antisocial peers. His actions
were the result of impulsive adolescent-decision-making,
in which he failed to consider the negative outcomes,
and compounded each reckless decision with an even
worse decision, ultimately resulting in the death of his
victim. . . . Nollen has appreciated a benefit from his
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incarceration. The undersigned can find no barriers to
. . . Nollen’s positive reintegration to society, should . . .
Nollen be afforded such an opportunity.
3. Disposition
Before announcing Nollen’s sentence, the district court
stated that it considered the mitigating factors set forth in
§ 28-105.02, Nollen’s presentence report, and the evidence
adduced by the State and by Nollen. The court then stated:
I thought long and hard about this and the difficulty I
have is the premeditation that took place over a severalhour
period.
And I understand your argument, . . . but there were
thoughts of this several hours earlier as they were in the
basement of the donut shop and it causes me great concern
in this case.
Premeditation means a design formed to do something
before it’s done. Certainly there was a plan to burglarize,
that was the day before. Then there was an initial discussion
between the two of you in the basement where you
were talking about having sexual intercourse with her,
and there were comments made that if you did that she
would have to be killed to keep her quiet. . . .
. . . .
The evidence, which primarily came from statements
made by you, is clear that over a several-hour period you
had numerous opportunities to avoid the final decision to
murder [Mary Jo].
In determining what sentence ought to be imposed
upon the defendant, this Court has considered the nature
and circumstances of the crime, the history and character
and condition of the defendant, including the defendant’s
age, mentality, education, experience, and social and cultural
background, all as back on January 11th, 1983, the
date of the original offense.
The Court also considered the lack of a previous criminal
record of you. I considered the motivation for the
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offense, as well as the nature of the offense and the violence
involved in the commission of the crime.
. . . .
The Court finds that imprisonment is necessary because
the offender is in need of correctional treatment that can
be provided most effectively by a commitment to a correctional
facility, and a lesser sentence will depreciate the
seriousness of the offender’s crime or promote disrespect
for the law.
The Court recognizes and acknowledges the statements
that you make today. The Court also recognizes and
acknowledges the efforts that you’ve made to improve
yourself over the last 33 years of incarceration.
I’m also acknowledging and recognizing that you were
17 years old at the time of the murder and I also recognize
and acknowledge the mitigating qualities of youth
and your troubled family life as testified to by . . .
Newring, which includes the frontal — prefrontal cortex
development of youth, and I recognize all of that and the
science that goes with that. I recognize those as mitigating
factors.
As an aggravating factor however, . . . the manner in
which [Mary Jo] was abducted, abused, and terrorized
over a significant period of time prior to her death and
your utter disregard at that time for her life and the manner
of her death shows a depravity and callousness which
even to this day is chilling to contemplate.
The court then sentenced Nollen to 90 years’ to life imprisonment.
Nollen appeals this sentence.
After Nollen filed his brief on appeal, he also filed a motion
requesting that this court either remand the cause or allow for
supplemental briefing. The basis for Nollen’s request was that
both parties had argued their positions under the assumption
that the current good time law would apply and that Nollen
would be parole eligible at age 62. However, DCS has apparently
recalculated Nollen’s parole eligibility according to the
1983 good time law, which would make Nollen parole eligible
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at age 78. In his motion, Nollen argued that this age difference
for parole eligibility may affect our decision as to the constitutionality
of his sentence and that the parties should be allowed
an opportunity to argue which good time law should apply.
We overruled Nollen’s request for a remand, but sustained the
motion for supplemental briefing.
III. ASSIGNMENTS OF ERROR
Nollen assigns, reordered and restated, that the district court
erred in imposing a sentence that (1) constitutes a “de facto life
sentence” in violation of the 8th and 14th Amendments to the
U.S. Constitution and of article I, §§ 9 and 15, of the Nebraska
Constitution and (2) is unconstitutionally disproportionate to
Nollen’s offense in light of his age, age-related characteristics,
and proven reform. Nollen also assigns that (3) the district
court denied him due process by imposing his sentence without
demonstrating “[m]eaningful [c]onsideration to [h]is [a]ge or
[a]ge-[r]elated [c]haracteristics.”10
IV. STANDARD OF REVIEW
[1,2] Whether a sentence constitutes cruel and unusual punishment
in violation of the Eighth Amendment presents a
question of law.11 When reviewing a question of law, an
appellate court reaches a conclusion independent of the lower
court’s ruling.12
V. ANALYSIS
All three of Nollen’s assignments of error relate to his sentence.
Nollen tells us that in order to decide the constitutionality
of his sentence, we must first determine his parole eligibility
date, i.e., whether the current good time law or the 1983
good time law applies.
10 Brief for appellant at 25.
11 See State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 (2014).
12 State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009); State v. Davis, 276
Neb. 755, 757 N.W.2d 367 (2008).
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1. Good Time Law
[3,4] We note that this same issue concerning good time
law presented itself in State v. Smith.13 In Smith, we cited
State v. Schrein14 for the proposition that the good time law
to be applied to the defendant’s sentence is the law in effect
at the time the defendant’s sentence becomes final. A defendant’s
sentence becomes final on the date that the appellate
court enters its mandate concerning the defendant’s appeal,
if there is indeed an appeal.15 If no appeal is taken from the
judgment, that judgment becomes final.16 In Smith, we concluded
that the sentence the defendant received in 1983 could
not become final in 1983 because it was unconstitutional and
void, and therefore constituted “no sentence.”17 Accordingly,
we concluded that the defendant’s new, valid sentence would
become final on the date we issued the mandate concerning his
appeal and that therefore, the current good time law applied to
his sentence.
[5] Although Smith was decided within the framework of
a habeas corpus proceeding, its principle applies to this postconviction
action because Nollen’s sentence is also unconstitutional
and void.18 In Montgomery v. Louisiana,19 the U.S.
Supreme Court held that a sentence imposed in violation
of a substantive constitutional rule is not merely erroneous,
but void. This was the case with Nollen’s original sentence,
which was imposed pursuant to a statute later found to be
unconstitutional as applied to Nollen.20 Although Nollen’s
13 State v. Smith, supra note 5.
14 State v. Schrein, 247 Neb. 256, 526 N.W.2d 420 (1995).
15 See id.
16 See id.
17 State v. Smith, supra note 5, 295 Neb. at 957, ___ N.W.2d at ___.
18 See Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193 L. Ed. 2d
599 (2016).
19 Id.
20 See Miller v. Alabama, supra note 1.
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original sentence is void under the circumstances in this
case, we note that the result may be different where a sentence
is imposed pursuant to a procedural error later found
to be unconstitutional. Then, such sentence is not automatically
invalidated.21
The State does not address the impact of Nollen’s sentence’s
being void, but, rather, contends that Nollen’s sentence
became final in 1983 and that the issue is controlled by Duff v.
Clarke.22 We disagree with the State.
Duff involved a defendant who was originally sentenced in
1988 to 12 to 20 years’ imprisonment for first degree sexual
assault of a child. While he was serving his sentence, the
Convicted Sex Offender Act23 was enacted, as well as a new
good time law. In 1992, he elected to be resentenced pursuant
to § 29-2934(4) (Cum. Supp. 1994) of that act. Upon reviewing
an updated presentence investigation, the district court
ordered the defendant to continue serving the remainder of his
original sentence. He filed a motion for declaratory judgment
seeking a determination that the new good time law applied
to his “new” sentence. On appeal, we affirmed the district
court’s determination that the 1988 good time law applied to
his sentence. We held that the good time law applicable at the
time an offender starts serving his sentence controls good time
computation regardless of whether the offender is resentenced
pursuant to the Convicted Sex Offender Act.
The facts in Duff are clearly distinguishable from the facts
presented here. Therein, the original sentence was not unconstitutional,
nor was it void. Instead, the defendant merely
elected to be resentenced pursuant to the Convicted Sex
Offender Act. This election in 1992 did not change the finality
of the sentence imposed in 1988. On the other hand,
herein, Nollen’s original sentence, imposed in 1983, is void
21 Montgomery v. Louisiana, supra note 18.
22 Duff v. Clarke, 247 Neb. 345, 526 N.W.2d 664 (1995).
23 See Neb. Rev. Stat. §§ 29-2922 to 29-2936 (Reissue 2016).
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and unconstitutional.24 As we explained in Smith, a void sentence
is no sentence.25 Because Nollen’s 1983 sentence is “no
sentence,” it cannot be said that his sentence became final in
1983. Instead, his sentence will become final on the date that
this court enters its mandate concerning this appeal.26 As such,
the current good time law applies to Nollen’s sentence and he
will be parole eligible at age 62.
2. Nollen’s Sentenc e
[6,7] Before proceeding to Nollen’s arguments about his
sentence, we first set forth the law on juvenile sentencing. In
Graham, the U.S. Supreme Court held that it is unconstitutional
for a State to impose a sentence of life imprisonment
without parole on a juvenile convicted of a nonhomicide
offense.27 The Graham Court explained that the Constitution
requires that those juvenile offenders be given “some meaningful
opportunity to obtain release based on demonstrated maturity
and rehabilitation.”28
[8] Two years later, in Miller, the Court declined to extend
that categorical bar of no life-without-parole sentences to
juveniles convicted of homicide.29 Although the possibility
of
a life-without-
parole sentence for a juvenile was not foreclosed,
the Court said that a sentencer must “take into account
how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in
prison.”30 The Court had explained that a lifetime in prison is
24 See, Montgomery v. Louisiana, supra note 18; Miller v. Alabama, supra
note 1.
25 See State v. Smith, supra note 5.
26 See, id.; State v. Schrein, supra note 14.
27 Graham v. Florida, supra note 2.
28 Id., 560 U.S. at 75.
29 Miller v. Alabama, supra note 1. See State v. Mantich, 295 Neb. 407, 888
N.W.2d 376 (2016).
30 Miller v. Alabama, supra note 1, 132 S. Ct. at 2469.
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a disproportionate sentence for all but the rarest of children,
those whose crimes reflect “‘“irreparable corruption.”’”31
In response to Miller, the Legislature amended Nebraska’s
sentencing laws for juveniles convicted of first degree murder.
32 Rather than imposing a mandatory sentence of life
imprisonment, the sentencing scheme now provides that juveniles
convicted of first degree murder are to be sentenced
to a “maximum sentence of not greater than life imprisonment
and a minimum sentence of not less than forty years’
imprisonment.”33 In determining the sentence, the sentencing
judge must “consider mitigating factors which led to
the commission of the offense.”34 Section 28-105.02(2) sets
forth a nonexhaustive list of mitigating factors for the court
to consider.
(a) Application of Graham and Miller
Nollen first argues that his sentence is unconstitutional
because it does not allow him parole eligibility until age 62
and therefore denies him a “meaningful opportunity to obtain
release” under Graham.35 Although we have recently held that
such a sentence does provide a meaningful opportunity for
release,36 we note that the Constitution does not require that
Nollen be afforded such an opportunity.
[9] Nollen further argues that he is entitled to the “meaningful
opportunity” requirement because felony murder is a
nonhomicide offense. However, we recently decided State v.
Mantich,37 wherein we held that felony murder is a homicide
31 Montgomery v. Louisiana, supra note 18, 136 S. Ct. at 726.
32 State v. Garza, 295 Neb. 434, 888 N.W.2d 526 (2017). See, also,
§ 28-105.02.
33 § 28-105.02(1).
34 § 28-105.02(2).
35 Graham v. Florida, supra note 2, 560 U.S. at 75.
36 See State v. Smith, supra note 5.
37 State v. Mantich, supra note 29.
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offense for purposes of Eighth Amendment sentencing analysis.
Accordingly, Nollen’s sentence is governed by Miller.
Under Miller, as stated above, a juvenile offender convicted
of a homicide offense may be sentenced to life imprisonment
without parole so long as the sentencer considered specific,
individualized factors before handing down that sentence.38
Here, Nollen was sentenced not to life imprisonment without
parole, but to imprisonment for a term of years that allows for
parole eligibility. Furthermore, the district court considered
the traditional sentencing factors, along with the mitigating
factors set forth in § 28-105.02(2). We conclude that Nollen’s
sentence does not violate Miller and that therefore, Nollen’s
first assignment of error is without merit.
(b) Proportionality
[10] Nollen next assigns that his sentence was disproportionate
in light of his age and age-related characteristics. We
disagree. The Eighth Amendment does not require strict proportionality
between crime and sentence, but, rather, forbids
only extreme sentences that are “grossly disproportionate” to
the crime.39 In this case, Nollen abducted, raped, and terrorized
Mary Jo over a significant period of time prior to her death.
The evidence suggests that she was conscious with her arms
tied behind her back as the car sank into the ice-cold Missouri
River. On these facts, Nollen’s sentence was not disproportionate,
and his second assignment of error is without merit.
(c) Procedural Safeguards
Finally, Nollen assigns that he was denied due process
because the sentencing court failed to “[d]emonstrate
[m]eaningful [c]onsideration to [h]is [a]ge or [a]ge-[r]elated
[c]haracteristics”40 and failed to use adequate procedural
38 Miller v. Alabama, supra note 1. See, also, State v. Mantich, supra note 11.
39 Ewing v. California, 538 U.S. 11, 23, 123 S. Ct. 1179, 155 L. Ed. 2d 108
(2003). See, also, State v. Mantich, supra note 29.
40 Brief for appellant at 25.
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safeguards when sentencing him. We discuss each of these
assertions separately and find both to be without merit.
First, we disagree that the sentencing court failed to demonstrate
meaningful consideration of mitigating factors, such
as Nollen’s age-related characteristics. Conversely, before it
announced Nollen’s sentence, the district court stated:
The Court recognizes and acknowledges the statements
that you make today. The Court also recognizes and
acknowledges the efforts that you’ve made to improve
yourself over the last 33 years of incarceration.
I’m also acknowledging and recognizing that you were
17 years old at the time of the murder and I also recognize
and acknowledge the mitigating qualities of youth
and your troubled family life . . . .
As an aggravating factor, however, the district court recalled
the manner in which Nollen terrorized Mary Jo prior to her
death. The district court found that Nollen’s “utter disregard
at that time for her life and the manner of her death shows a
depravity and callousness which even to this day is chilling
to contemplate.”
[11] The appropriateness of a sentence is necessarily a subjective
judgment and includes the sentencing judge’s observations
of the defendant’s demeanor and attitude and all of the
facts and circumstances surrounding the defendant’s life.41
We have reviewed the record and reject Nollen’s claim that
the district court did not adequately consider his age and agerelated
characteristics when sentencing him.
We also disagree that the district court failed to use adequate
procedural safeguards when sentencing Nollen. Just as
the defendant did in the recent case Mantich,42 Nollen asks
this court “to establish more precise procedural safeguards
to ensure that sentences imposed on juveniles do not exceed
41 State v. Garza, supra note 32; State v. Timmens, 263 Neb. 622, 641
N.W.2d 383 (2002).
42 State v. Mantich, supra note 29.
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constitutional limitations and to facilitate meaningful review
by this Court.”43 Specifically, Nollen asks that we “require
trial courts to make findings regarding whether a juvenile
killed or intended to kill, whether his offense reflects irreparable
corruption or transient immaturity, or whether some
other penological interest requires a sentence akin to life
without parole.”44 After considering almost the same argument
in Mantich, this court declined to adopt any new procedural
safeguards after concluding that our current sentencing procedures
for juveniles who have committed homicide offenses
is consistent with Miller and the Eighth Amendment as it is
currently interpreted by the U.S. Supreme Court.45 We reach
the same conclusion here, and we find that Nollen’s argument
is without merit.

Outcome:

< The sentence of the district court is affirmed.>

Plaintiff's Experts:

Defendant's Experts:

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