State v. Artis, 893 N.W.2d 421

Background

Defendant Tareik Q. Artis was arrested after fleeing a traffic stop while armed; officers recovered 4.9 g of cocaine and a stolen .45-caliber pistol with loaded magazines.
Artis pleaded no contest to possession of a controlled substance (Class IV felony) and possession of a stolen firearm (Class IIA felony); other counts were dismissed under a plea agreement.
On April 11, 2016, the district court sentenced Artis to not less than 2 years nor more than 2 years for the Class IV conviction and 15–20 years for the Class IIA conviction, to be served consecutively; Artis appealed.
While the appeal was pending, the Legislature enacted L.B. 1094 (effective Apr. 20, 2016), amending Neb. Rev. Stat. § 29-2204.02 to require an indeterminate sentence for certain Class IV felonies concurrent or consecutive with higher-class felonies and to prohibit postrelease supervision for such combinations.
The State raised the possibility of plain error under the new statute; the Court of Appeals vacated its summary affirmance and the Nebraska Supreme Court took the case to resolve the question of whether Artis’s Class IV sentence is plainly erroneous under the amended law.

Issues

Issue	Artis' Argument	State's Argument	Held
Whether the sentences were excessive	Sentences are excessive given Artis’ age and minimal criminal history; court should have given concurrent sentences	Sentences were within statutory limits and accounted for offense severity and prior record	No abuse of discretion; district court considered appropriate factors and permissibly imposed consecutive sentences
Whether the Class IV sentence is invalid under L.B. 1094 (plain error)	Argues sentence was proper at time imposed; challenges not premised on intervening statute	Asserts amended § 29-2204.02 requires an indeterminate sentence without postrelease supervision and that Artis’ sentence may be inconsistent with L.B. 1094	No plain error: Artis’ 2-to-2-year term is an indeterminate sentence under Nebraska law and complies with L.B. 1094; no postrelease supervision applies
Whether a sentence with equal min and max is determinate or indeterminate	Artis: (implicit) sentence was valid	State: characterizes "not less than 2 nor more than 2 years" as determinate and thus inconsistent with the amendment	Court: Equal minimum and maximum terms can still be an indeterminate sentence; Artis’ sentence is indeterminate
Whether § 29-2204.02(4) requires the minimum be less than the maximum because it incorporates § 29-2204 process	Artis: statute should be read consistently with § 29-2204 exclusions for Class IV felonies	State: "process" requires application of § 29-2204(1)(a), which demands min < max	Court: "Process" references § 29-2204 as a whole; § 29-2204(1) expressly excludes Class IV felonies, so min need not be less than max; statutory scheme consistent with legislative history

Key Cases Cited

State v. Dixon, 286 Neb. 334 (2013) (trial court has discretion to impose consecutive sentences even for offenses arising from same incident)
State v. Randolph, 186 Neb. 297 (1971) (intervening statutory changes may apply under certain circumstances)
State v. White, 256 Neb. 536 (1999) (distinguishes determinate sentences from indeterminate; determinate is a single term of years)
State v. Marrs, 272 Neb. 573 (2006) (holding that a sentence whose minimum equals its maximum is nevertheless an indeterminate sentence)
State v. Bartholomew, 258 Neb. 174 (1999) (appellate courts may notice plain error not raised below)
State v. Scott, 284 Neb. 703 (2012) (defines plain error standard and its application)

Disposition

The Nebraska Supreme Court affirmed: the district court did not abuse its sentencing discretion, Artis’ Class IV sentence is indeterminate and complies with L.B. 1094, and there is no plain error.