State v. Erpelding, 292 Neb. 351

Background

Shawn R. Erpelding was charged with four counts of criminal nonsupport for failing to pay four months of temporary child support (Aug–Nov 2012) totaling $900; DHHS had been assigned child support after the mother received ADC.
A temporary order (Aug 20, 2012) required $225/month; a final order (July 15, 2013) later set support at $379/month. Erpelding did not appeal those family-court orders and made no payments for over a year.
The State presented evidence that Erpelding had construction work and received significant payments in mid-2012, had bank loans secured by vehicles/equipment, and later made substantial payments only after license suspensions and criminal charges.
Jury instructions tracked the statute’s elements but did not use the exact statutory phrase “in violation of any order of any court”; defense counsel did not object or request a lesser-included instruction.
After conviction, the State pursued habitual-criminal enhancement under Neb. Rev. Stat. § 29-2221; Erpelding objected to inadequate 3-day notice but the court proceeded and imposed concurrent 10–15 year terms (mandatory minimum under the enhancement).

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Erpelding)	Held
Sufficiency of evidence of intent to willfully fail to support	Evidence of work, earnings, assets, and post-charge payments support an inference of intent not to pay	State failed to prove ability to pay; lack of precise income evidence negates intent	Evidence viewed in light most favorable to State was sufficient; jury could infer ability and intent to not pay
Whether nonsupport was to child or to DHHS (assignment)	Assignment to DHHS does not extinguish duty to support the child	Nonsupport was to DHHS, not the child, so felony element (violation of court order) not met	Assignment did not affect the underlying obligation; conviction stands
Collateral attack on validity of temporary support order at criminal trial	The order was valid and preclusive because Erpelding could have appealed the interlocutory order when final judgment issued	Temporary order was invalid (court “plucked a number”) and could be challenged in criminal case	Collateral-attack rule bars nonjurisdictional attack on the family-court order at criminal trial; counsel not ineffective for not raising it
Notice requirement and habitual-criminal enhancement	Separate 3-day notice not required if defendant knew of enhancement; lack of separate notice was harmless	§ 29-2221 mandates separate 3-day notice of enhancement hearing; absence required reversal	Court found statutory 3-day notice required but held the lack of separate notice harmless on these facts; enhancement upheld
Jury instructions / Apprendi issue & lesser-included instruction	Instructions adequately described statutory elements; no plain error	District court failed to submit to jury the ‘‘violation of any order’’ element and should have instructed on misdemeanor nonsupport	No plain error; instructions viewed as legally sufficient; lesser-included instruction not required because validity of order could not be attacked at trial
Sentence proportionality / excessiveness (Eighth Amendment)	Habitual-enhancement justified by defendant’s extensive criminal history and legislative goals	10–15 years is grossly disproportionate to a $900 nonsupport offense	Under Ewing and Nebraska precedent, enhancement and sentence not grossly disproportionate given recidivism; court did not abuse discretion

Key Cases Cited

Ewing v. California, 538 U.S. 11 (2003) (habitual-offender proportionality review must account for legislature’s goals of deterring/incapacitating recidivists)
State v. Hurbenca, 266 Neb. 853 (2003) (upholding habitual-enhanced sentence and applying Eighth Amendment analysis)
State v. Loyuk, 289 Neb. 967 (2015) (interpretation and application of criminal nonsupport statute)
State v. Menuey, 239 Neb. 513 (1991) (ability to pay as circumstantial evidence of intent in nonsupport prosecutions)
Maness v. Meyers, 419 U.S. 449 (1975) (collateral-bar principle and respect for court orders)
State v. Parminter, 283 Neb. 754 (2012) (standard of review for sentence within statutory limits)