State v. Becker, 304 Neb. 693

Background

Becker was charged with 21 counts (each a separate date May 3–23, 2018) of violating a protection order by calling the victim from Scotts Bluff County jail; each count reduced to a first-offense (Class I misdemeanor) by plea.
He pled no contest to all 21 counts; sentencing occurred July 31, 2018.
County court imposed 180 days’ imprisonment on each count, ordered to run consecutively (aggregate 3,780 days) and the written commitment stated service in Scotts Bluff County Jail.
Becker appealed to the district court (acting as intermediate appellate court), arguing (1) sentencing was invalid because the court did not announce the place of confinement in open court, (2) sentences were disproportionate under the Eighth Amendment, and (3) sentences were excessive/abuse of discretion for being consecutive.
The district court affirmed; on further appeal the Nebraska Supreme Court reviewed statutory limits, plain-error and Eighth Amendment principles, and whether the county court abused its sentencing discretion.

Issues

Issue	Plaintiff's Argument (Becker)	Defendant's Argument (State)	Held
Whether sentencing was invalid/plain error because court did not announce where sentences would be served in open court	Absence of an explicit oral pronouncement of place of confinement (commitment) while defendant present renders sentence invalid	Court discussed location at hearing, statute (§28-106) left no alternative but county jail, written order identified county jail; no objection was made	No plain error: defendant present, court discussed statutory limit, written order matched oral sentencing, and no substantial right was affected
Whether consecutive sentences (aggregate >10 years) violated the Eighth Amendment as grossly disproportionate	Aggregate lengthy consecutive time in county jail is grossly disproportionate to misdemeanor telephone calls	Eighth Amendment proportionality analysis focuses on each individual sentence; each 180-day sentence is within statutory limits and not grossly disproportionate	Reversed? No. (Affirmed.) Each 180-day sentence considered individually was within statutory maximum and not grossly disproportionate
Whether imposing 21 consecutive 180-day terms was excessive / an abuse of discretion	Consecutive terms producing long aggregate confinement in county jail (and county jails are less suited for long incarcerations) is excessive	Sentences were within statutory limits; court considered relevant factors (criminal history, victim impact, need for punishment, defendant’s attitude); consecutive sentencing is discretionary	No abuse of discretion: court considered appropriate factors and had statutory obligation to order service in county jail; consecutive terms reasonable given number of separate violations

Key Cases Cited

State v. Hatfield, 933 N.W.2d 78 (Neb. 2019) (standard of appellate review from county court)
State v. Jones, 900 N.W.2d 757 (Neb. 2017) (Eighth Amendment proportionality as question of law)
State v. Montoya, 933 N.W.2d 558 (Neb. 2019) (abuse of discretion standard for sentences within statutory limits)
State v. Briggs, 929 N.W.2d 65 (Neb. 2019) (plain-error standard)
State v. Temple, 432 N.W.2d 818 (Neb. 1988) (importance of pronouncing precise terms of sentence in open court)
State v. Ernest, 264 N.W.2d 677 (Neb. 1978) (presence of defendant at sentencing and allocution requirements)
Ewing v. California, 538 U.S. 11 (U.S. 2003) (narrow gross-disproportionality principle)
Harmelin v. Michigan, 501 U.S. 957 (U.S. 1991) (discussion of proportionality limits)
Lockyer v. Andrade, 538 U.S. 63 (U.S. 2003) (gross-disproportionality reserved for extraordinary cases)
U.S. v. Aiello, 864 F.2d 257 (2d Cir. 1988) (Eighth Amendment analysis focuses on individual sentences)
State v. Garcia, 923 N.W.2d 725 (Neb. 2019) (factors to consider in sentencing review)