State of Nebraska v. Corey J. Raatz

On November 5, 2014, Sgt. James Vrbsky of the Madison

County Sheriff’s Department responded to a report of a vehicle

fire in Madison County, Nebraska. He observed what appeared

to be a semi-truck on fire. Shortly after Vrbsky arrived at the

scene of the fire, a vehicle stopped nearby, and Raatz exited

the passenger door. Raatz inquired of Vrbsky if he could proceed

on, to which Vrbsky advised that he could. Raatz further

inquired whether there was going to be a problem, because he,

Raatz, was near the fire. Vrbsky advised Raatz that he should

contact the sheriff’s office if he had set the fire and that if not,

he should leave, whereupon Raatz left. Vrbsky observed indicators

that Raatz was under the influence of alcohol at the time

of their contact. Thereafter, the vehicle carrying Raatz again

passed by the scene.

After Vrbsky had exited the scene, he was dispatched back

to the same scene. When Vrbsky arrived, he observed Raatz

and a female standing there with a male subject, John Krueger.

Again, Vrbsky told Raatz to leave.

Krueger reported to Vrbsky that he had been awoken by a

telephone call and that he recognized the caller’s voice as that

of Raatz, advising Krueger that there was a fire just north of

his house. Raatz hung up, but called back, identifying himself

as Raatz, and again advised Krueger of the fire. Krueger

drove to the area Raatz described. He observed a small fire in

the cab area of a semi-tractor and called the authorities. After

the authorities arrived, Krueger observed the vehicle carrying

Raatz drive by, return, go by again, and then park. Thereafter,

Raatz exited the vehicle and approached Krueger.

At the fire scene, investigators determined that one semitractor

was driven into a fuel trailer, pushing the fuel trailer

into a second semi-tractor. A fire then started and consumed

both semi-tractors and the trailer.

On March 5, 2015, the sheriff’s office interviewed and, later,

arrested Raatz for false reporting and criminal mischief. The

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294 Nebraska Reports

STATE v. RAATZ

Cite as 294 Neb. 852

State filed an information on April 15, charging Raatz with

criminal mischief, a Class IV felony.

A plea agreement resulted in Raatz’ pleading no contest to

the charge on December 21, 2015. Further, the State agreed

to make no recommendation at sentencing and requested the

determination of restitution at a later hearing. The district court

ordered a presentence investigation and scheduled the sentencing

and restitution hearing for February 19, 2016.

At sentencing on February 19, 2016, Raatz requested a

term of probation, arguing that with the 2015 addition of

L.B. 605, Neb. Rev. Stat. § 29-2204.02 (Supp. 2015) required

probation for Class IV felonies absent substantial and compelling

reasons that would prevent effective and safe supervision

in the community. The district court ruled that because the

offense occurred before August 30, 2015—the effective date

of L.B. 605—it did not have to find substantial and compelling

reasons not to place Raatz on probation, as required by

§ 29-2204.02. The district court sentenced Raatz to a prison

term of 20 to 40 months. Raatz appealed.

ASSIGNMENTS OF ERROR

Raatz assigns that the district court (1) failed to apply

§ 29-2204.02 in sentencing him and (2) abused its discretion

by sentencing him to a term of incarceration rather than a term

of probation.

STANDARD OF REVIEW

[1] Statutory interpretation presents a question of law, which

an appellate court reviews independently of the lower court’s

determination. State v. Draper, 289 Neb. 777, 857 N.W.2d 334

(2015); State v. Smith, 286 Neb. 77, 834 N.W.2d 799 (2013).

[2] An appellate court will not disturb a sentence imposed

within the statutory limits absent an abuse of discretion by the

trial court. State v. Sikes, 286 Neb. 38, 834 N.W.2d 609 (2013);

State v. Parks, 282 Neb. 454, 803 N.W.2d 761 (2011).

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294 Nebraska Reports

STATE v. RAATZ

Cite as 294 Neb. 852

ANALYSIS

Whether District Court Erred

in Declining to Apply

§ 29-2204.02.

[3] Raatz contends that the district court erred in declining

to apply § 29-2204.02 in sentencing him, following his conviction

for criminal mischief, a Class IV felony. See § 28-519.

He relies on what we sometimes refer to as the “Randolph

doctrine,” the proposition that when the Legislature amends a

criminal statute 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 specifically provided otherwise. See State v.

Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971). Upon our

review of L.B. 605, we determine that the Legislature specifically

provided otherwise in this instance.

[4-7] Our analysis begins with the rules of statutory construction.

Statutory language is to be given its plain and

ordinary meaning, and an appellate court will not resort to

interpretation to ascertain the meaning of statutory words

which are plain, direct, and unambiguous. State v. Sikes, supra;

State v. Parks, supra. It is not within the province of a court

to read a meaning into a statute that is not warranted by the

language; neither is it within the province of a court to read

anything plain, direct, or unambiguous out of a statute. State

v. Warriner, 267 Neb. 424, 675 N.W.2d 112 (2004); State v.

Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002). In reading a

statute, a court must determine and give effect to the purpose

and intent of the Legislature as ascertained from the entire

language of the statute considered in its plain, ordinary, and

popular sense. State v. Mucia, 292 Neb. 1, 871 N.W.2d 221

(2015); State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).

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,

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harmonious, and sensible. State v. Hernandez, 283 Neb. 423,

809 N.W.2d 279 (2012).

Here, Raatz was convicted of criminal mischief, pursuant

to § 28-519, in November 2014. His conviction occurred prior

to August 30, 2015, the effective date of L.B. 605. Raatz contends

that because he was sentenced after the effective date of

L.B. 605, Randolph, supra, controls and he should have been

sentenced to probation as provided by § 29-2204.02(2), which

states, in relevant part:

If the criminal offense is a Class IV felony, the court shall

impose a sentence of probation unless:

. . . .

(c) There are substantial and compelling reasons why

the defendant cannot effectively and safely be supervised

in the community, including, but not limited to, the criteria

in subsections (2) and (3) of section 29-2260. Unless

other reasons are found to be present, that the offender

has not previously succeeded on probation is not, standing

alone, a substantial and compelling reason.

Raatz’ reliance on Randolph, supra, is misplaced. He cannot

receive the benefit of the amendatory act that lowered the

punishment for Class IV felonies, because the Legislature specifically

provided otherwise within L.B. 605.

[8] When the Legislature amended the penalty provisions

in Neb. Rev. Stat. § 28-105 (Supp. 2015) for Class IV felonies,

it included the following language regarding retroactive

application: “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.” § 28-105(7) (emphasis supplied). Further,

Neb. Rev. Stat. § 28-116 (Supp. 2015) states in part:

The changes made to the sections listed in this section

by Laws 2015, LB605, 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

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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.

Section 28-116 goes on to list § 28-519, criminal mischief,

as a statute that was amended by L.B. 605. The Legislature

was clear by the plain language of § 28-519 that it is not to

be applied retroactively to “any offense committed prior to

August 30, 2015,” and Raatz’ offense occurred prior to August

30, 2015. Consequently, § 29-2204.02 is not applicable to

his case.

Raatz points out that as part of L.B. 605, the Legislature

amended Neb. Rev. Stat. § 83-1,135.02(2) (Supp. 2015),

which provides that “sections 29-2262 [and] 29-2266 . . .

apply to all committed offenders under sentence, on parole,

or on probation on August 30, 2015, and to all persons sentenced

on and after such date.” Raatz argues, “[I]t is clear,

that as far as §§ 29-2262 and 29-2266 are concerned, the

Legislature certainly desired to have its changes in probation

conditions and procedures for sanctions applied retroactively.

The logical inference would be that § 29-2204.02

should apply retroactively as well.” Brief for appellant at 17.

However, the fact that the Legislature specifically referenced

Neb. Rev. Stat. §§ 29-2262 and 29-2266 (Supp. 2015), but

not § 29-2204.02, would stand for the opposite conclusion

from that opined by Raatz. It is clear that the Legislature did

not intend to apply § 29-2204.02 retroactively. Therefore, the

district court did not err in declining to apply § 29-2204.02 in

sentencing Raatz.

Whether District Court Abused Its

Discretion by Sentencing Raatz to

Term of Incarceration Rather

Than Term of Probation.

[9,10] Lastly, Raatz contends that the district court abused

its discretion by electing to sentence him to a term of

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Cite as 294 Neb. 852

imprisonment, rather than probation. In imposing a sentence,

the sentencing court is not limited to any mathematically

applied set of factors. State v. Sikes, 286 Neb. 38, 834 N.W.2d

609 (2013). 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. Id. An appellate court

will not disturb a sentence imposed within the statutory limits

absent an abuse of discretion by the trial court. Id.

The presentence report reflects that Raatz has an extensive

criminal history, spanning from 1996 to 2014. It includes

four convictions for driving under suspension, one for driving

under the influence, one for reckless driving, and one for driving

under revocation, the last of these driving offenses occurring

in 2012. Raatz has been convicted of trespass twice, most

recently in 2012. Raatz’ criminal record reflects two convictions

for criminal mischief, in addition to the present offense,

as well as four convictions for theft and two for assault. In

addition, Raatz has been convicted of burglary, fraud, obstructing

an officer, unauthorized use of a vehicle, violation of a

restraining order, attempt to elude a police officer, possession

of a deadly weapon by a felon, disturbing the peace,

child abuse, and false reporting. Raatz has been incarcerated

11 times and served terms of probation for unauthorized use

of a vehicle, together with trespass and attempt to elude a

police officer.

At the time of the present offense, a Class IV felony

was punishable by a maximum of 5 years’ imprisonment,

a $10,000 fine, or both. § 28-105(1). The sentencing order

provided that the district court had reviewed Neb. Rev. Stat.

§ 29-2260 (Supp. 2015) and found that Raatz was “not a suitable

candidate for probation.” According to the presentence

report, Raatz expressed the desire to continue to provide for

his family while on probation and professed that he would

not reoffend. But as recounted above, Raatz has an extensive

criminal history that shows a consistent lack of respect for

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people and property and includes multiple criminal mischief

convictions. He has received opportunities for probation in

the past and takes no responsibility for the present offense. In

light of these facts, we cannot conclude that the district court

abused its discretion in sentencing Raatz to incarceration.