State v. Chacon, 296 Neb. 203

Background

Defendant Jesus A. Chacon pled no contest (Jan 29, 2016) to two Class IV felony counts of possession of methamphetamine (one from July 16, 2015; one from Dec 28, 2015) and one Class W misdemeanor driving under the influence (DUI, second offense); other charges were dismissed and concurrent sentences recommended.
July 16, 2015 offense: officers found methamphetamine (2.3 g) in Chacon’s vehicle after he initially gave a false name; charged in case No. S-16-419.
December 28, 2015 offense: traffic stop revealed signs of stimulant use, methamphetamine in vehicle and on Chacon’s person; charged in case No. S-16-425 (possession, tampering, DUI second offense, driving during revocation).
Presentence report: age 45, HS grad, long criminal history (multiple prior thefts, DUIs, failed probations), high/very high risk for recidivism and substance abuse, mental health history and prior hospitalizations.
District court (Mar 30, 2016): sentenced S-16-419 (possession, July 2015) to 20 months to 5 years; S-16-425 (possession, Dec 2015) to 2 years with 12 months postrelease supervision, plus concurrent 6 months and fines for DUI (credit for 135 days). All sentences concurrent. Chacon appealed as excessive.

Issues

Issue	Chacon's Argument	State's/Respondent's Argument	Held
Whether the 20 mos–5 yr sentence (S-16-419) for July 2015 possession was excessive	Sentence excessive given personal background and mitigating factors	Sentence within statutory limits and supported by criminal history, failed probations, need for treatment	Affirmed — no abuse of discretion (within statutory limits; court considered sentencing factors)
Whether the 2-yr determinate sentence with 12 months postrelease (S-16-425 possession) was excessive	Sentence excessive under sentencing factors; requested lesser penalty	At time of sentencing statute required determinate sentence with postrelease; sentence within statutory limits and supported by record	Sentence within statutory limits and discretion, but vacated on plain-error / retroactivity grounds and remanded for resentencing under L.B. 1094 (see Randolph doctrine)
Whether L.B. 1094 (effective Apr 20, 2016) applies retroactively to reduce Chacon’s S-16-425 sentence	L.B. 1094 mitigates punishment and should apply retroactively because appeal pending and Chacon was a committed offender when L.B. 1094 took effect	(State conceded plain-error argument raised)	Held plain error: L.B. 1094 applies retroactively under Randolph; S-16-425 possession sentence vacated and remanded for resentencing consistent with §29-2204.02(4)
Whether Chacon’s DUI sentence in S-16-425 was excessive	Alleged generally that sentence in case was excessive (brief focuses on possession)	Court notes issue not properly briefed	Not considered on appeal (issue not specifically assigned/argued); DUI sentence affirmed in part as procedurally waived

Key Cases Cited

State v. Aguallo, 294 Neb. 177, 881 N.W.2d 918 (discusses effect of L.B. 605 on penalties for crimes committed before Aug. 30, 2015)
State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (standard for reviewing within‑statutory‑limits sentencing and factors to consider)
State v. Samayoa, 292 Neb. 334, 873 N.W.2d 449 (appellate court may notice plain error)
State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (when legislature mitigates punishment after offense but before final judgment, the amendatory punishment generally applies)
State v. Duncan, 291 Neb. 1003, 870 N.W.2d 422 (distinguishes amendment that creates a new crime from mere penalty changes)
State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (statutory interpretation principles)
State v. Smith, 286 Neb. 77, 834 N.W.2d 799 (statutory interpretation review standards)
State v. Raatz, 294 Neb. 852, 885 N.W.2d 38 (plain meaning and in pari materia construction of statutes)
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (errors must be specifically assigned and argued on appeal)