State v. Duncan, 291 Neb. 1003

Background

In August 2013 police stopped Larry F. Duncan and found he was driving while his license was revoked and without an ignition interlock device; he had prior DUI convictions.
In March 2014 the State charged Duncan with operating a motor vehicle without an ignition interlock device (then a Class IV felony under § 60-6,211.11) and driving during revocation.
The Legislature enacted L.B. 998 in April 2014 (effective immediately via an emergency clause), which reclassified the ignition-interlock offense as a Class I misdemeanor except when the offender’s blood or breath alcohol concentration was ≥ .02, in which case it remained a Class IV felony.
Duncan pleaded no contest in October 2014 and was sentenced in January 2015 to 1–2 years’ imprisonment (within the Class IV felony range). He appealed, arguing the mitigatory amendment applied and that his sentence was excessive.
The record lacks any evidence of Duncan’s blood or breath alcohol concentration at the time of the offense.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 2014 amendment (L.B. 998) applies retroactively to reduce Duncan’s felony to a misdemeanor	Duncan: The amendment mitigates punishment and thus should apply to pending cases because his plea and sentencing occurred after the law took effect	State: L.B. 998 added a new substantive element (.02 BAC/breath threshold); applying it would require new evidentiary fact-finding and therefore should not apply retroactively	Held: Amendment does not apply; it substantively redefined the offense by adding an alcohol-concentration element, and the record lacks evidence to reclassify the conviction under the new statute
Whether remand for an evidentiary hearing is required to determine applicability of the amendment	Duncan: A hearing is unnecessary because the legislature intended mitigation and the law was effective before plea	State: A hearing would be necessary to prove the new element, which the State had no reason to preserve earlier	Held: No remand; court will not order evidentiary hearing to establish a new element for retroactive application
Whether Duncan’s 1–2 year sentence is excessive given his criminal history and nonviolent nature of the offense	Duncan: First felony, completed treatment, nonviolent — prison inappropriate	State: Sentence within statutory limits and supported by risk of reoffense and criminal history	Held: Sentence affirmed as within statutory limits and not an abuse of discretion
Whether Randolph doctrine (mitigatory amendment applies to pending cases) mandates relief here	Duncan: Randolph requires applying mitigatory changes absent express legislative contrary intent	State: Randolph does not control where amendment changes substantive elements or would require new proof	Held: Randolph inapplicable because amendment altered substantive elements; existing Randolph exceptions control

Key Cases Cited

State v. Randolph, 186 Neb. 297 (1971) (mitigatory penal amendments apply to pending, nonfinal cases absent contrary legislative intent)
State v. Country, 194 Neb. 570 (1975) (amendment that effectively creates new crimes or adds elements may not apply retroactively; remand for evidentiary hearing is not required when Legislature did not intend such hearings)
State v. Castaneda, 287 Neb. 289 (2014) (illustrates application of Randolph doctrine principles)
Jones v. Clarke, 253 Neb. 161 (1997) (sentence is not final while appeal pending; final mandate controls applicability of intervening amendments)