State v. Chacon, 894 N.W.2d 238

Jesus A. Chacon pled no contest to two Class IV felony counts of possession of methamphetamine (one arising July 16, 2015; one arising December 28, 2015) and one Class W misdemeanor second-offense DUI (Dec. 28, 2015) under a consolidated plea agreement; other charges were dismissed.
Presentence investigation showed Chacon (age 45) had a lengthy criminal history, prior probation failures, substance-abuse and mental-health issues, and a high risk of recidivism; parties stipulated the DUI was a second offense.
On March 30, 2016, the district court sentenced: (S-16-419, July offense) 20 months to 5 years for possession; (S-16-425, Dec. offense) 2 years with 12 months postrelease supervision for possession, and 6 months (plus fine and license suspension) for DUI; sentences were concurrent; Chacon appealed as excessive.
At the time of sentencing, L.B. 605 (effective Aug. 30, 2015) required determinate sentences for Class IV felonies that included postrelease supervision; the district court followed that regime when imposing the 2-year determinate term with 12 months postrelease supervision in S-16-425.
While the appeal was pending, L.B. 1094 (effective Apr. 20, 2016) amended the statutes to permit indeterminate sentences without postrelease supervision for certain Class IV felonies committed on or after Aug. 30, 2015 when imposed concurrently or consecutively with specified other sentences.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 20-mo–5-yr sentence in S-16-419 for possession was excessive	Chacon: sentence excessive given circumstances	State: sentence within statutory limits and justified by history	Court: affirmed — within limits and not an abuse of discretion (considered risk, failed probations, treatment needs)
Whether the 2-year determinate sentence with 12 months postrelease supervision in S-16-425 for possession should be vacated under intervening statutory change (L.B. 1094)	Chacon: sentence excessive; sought relief under new law	State: original sentence complied with law at sentencing but L.B. 1094 may apply retroactively	Court: vacated sentence as plain error under Randolph — L.B. 1094 mitigates punishment and applies retroactively; remand for resentencing under §29‑2204.02(4)
Whether the DUI sentence in S-16-425 is reviewable as excessive	Chacon: broadly claimed sentence excessive but did not brief DUI claim	State: not addressed	Court: not considered — error not specifically assigned or argued, so DUI sentence affirmed in part (procedurally unchallenged)

State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (Neb. 2016) (standard for appellate review of within‑statutory sentences and factors for sentencing)
State v. Aguallo, 294 Neb. 177, 881 N.W.2d 918 (Neb. 2016) (penalty changes by L.B. 605 do not apply to offenses committed prior to Aug. 30, 2015)
State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (Neb. 1971) (when Legislature mitigates punishment after offense but before final judgment, amended penalty applies absent contrary provision)
State v. Duncan, 291 Neb. 1003, 870 N.W.2d 422 (Neb. 2015) (distinguishing amendments that create a new crime from those that merely change penalties)
State v. Samayoa, 292 Neb. 334, 873 N.W.2d 449 (Neb. 2015) (appellate courts may notice plain error not raised below)
State v. Raatz, 294 Neb. 852, 885 N.W.2d 38 (Neb. 2016) (rules of statutory interpretation; consider statutes in pari materia)
State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (Neb. 2015) (statutory interpretation reviewed de novo)
State v. Smith, 286 Neb. 77, 834 N.W.2d 799 (Neb. 2013) (statutory interpretation principles)
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (Neb. 2014) (issue must be both assigned and argued on appeal to be considered)