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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.