State v. Berney, 288 Neb. 377

Matthew Berney pled no contest to two counts of burglary as part of a plea agreement.
After a habitual criminal hearing under Neb. Rev. Stat. § 29-2221, the district court found Berney a habitual criminal.
The habitual finding required a mandatory minimum sentence of 10 years for each conviction.
The district court sentenced Berney to 10 to 10 years on each count and ordered the terms to run consecutively, relying on State v. Castillas.
Berney appealed, arguing the sentences were excessive and that consecutive mandatory minimums were not required for habitual-enhanced sentences.
The Nebraska Supreme Court affirmed the convictions and the 10-year mandatory minimums but remanded for the sentencing court to decide whether the two enhanced sentences should run concurrently or consecutively.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused discretion by imposing the sentences	Berney: court failed to consider mitigating factors; sentences excessive	State: court imposed the statutory mandatory minimums; no discretion to go lower	No abuse: 10-year minimums required by habitual statute were properly imposed
Whether mandatory minimums from a habitual enhancement must run consecutively	Berney: habitual statute does not mandate consecutive service; Castillas not controlling	State: all statutory mandatory minimums should be served consecutively per Castillas	Court: habitual statute does not require consecutive service; Castillas distinguishable
Whether Castillas controls consecutive service for habitual enhancements	Berney: Castillas’ statement was not essential to its holding and not binding here	State: Castillas requires consecutive service of mandatory minimums generally	Held: Castillas addressed statutes that expressly mandated consecutive sentences; it does not bind sentencing where enhancement (habitual) is silent on concurrency
Remedy when trial court misunderstood its sentencing discretion	Berney: court erred as to consecutive requirement, so remand needed	State: sentences are within statutory limits so no relief	Held: affirm convictions and 10-year sentences; remand for district court to exercise discretion on concurrent vs consecutive service

State v. Castillas, 285 Neb. 174 (discussed mandatory minimums and consecutive service where statute expressly required it)
State v. King, 275 Neb. 899 (held habitual-enhanced mandatory minimums are required but not necessarily consecutive)
State v. Policky, 285 Neb. 612 (trial court discretion to impose concurrent or consecutive sentences)
State v. McGuire, 286 Neb. 494 (defines judicial abuse of discretion standard)
State v. Smith, 286 Neb. 77 (explains appellate review of statutory interpretation)