State v. Kennedy
299 Neb. 362
| Neb. | 2018Background
- Chad T. Kennedy pled guilty to operating a motor vehicle to avoid arrest (Class IV felony) and was sentenced February 9, 2017 to 240 days in jail with 9 months of post-release supervision; he received credit for time served and was released the same day.
- The State filed a motion captioned as a revocation of probation (but effectively seeking revocation of post-release supervision) after Kennedy failed to report because he was detained on unrelated charges in another county.
- At the revocation hearing Kennedy admitted the violation; the district court found a violation but declined to revoke post-release supervision and instead entered an order terminating post-release supervision "unsatisfactorily." Kennedy was remanded immediately to custody.
- The State appealed, arguing the district court’s "unsatisfactory" termination was not authorized by statute and resulted in an excessively lenient sentence.
- The Nebraska Supreme Court considered whether the court had statutory authority to terminate post-release supervision as "unsatisfactory" after finding a violation and whether the State could appeal the resulting order as an excessively lenient sentence.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Kennedy) | Held |
|---|---|---|---|
| Whether the district court could terminate post-release supervision "unsatisfactorily" after finding a violation | That § 29-2268 permits only revocation with imprisonment up to the remaining term or the limited alternatives in § 29-2268(3); "unsatisfactory" termination is not authorized | § 29-2263 authorizes a court to discharge probationers (including post-release supervision) and thus supports termination even after a violation | Court held § 29-2263’s early discharge cannot be used after invoking revocation under § 29-2268; "unsatisfactory" termination after a violation is not authorized |
| Whether the district court’s order functioned as a revocation imposing a zero-month imprisonment | Implied revocation with zero confinement is not supported; a revocation must state a clear term of imprisonment if imposed | Kennedy argued practical effect was revocation with no incarceration | Court held the order did not validly revoke supervision under § 29-2268(2); no explicit sentence was imposed and one cannot be inferred |
| If revocation was not appropriate, whether the court complied with the dispositions authorized by § 29-2268(3) | The court must choose one of the subsection (3) options (reprimand, intensified supervision, additional conditions, custodial sanction under § 29-2266.03, or extension) | Court attempted to proceed under subsection (3) by not revoking, then instead terminated supervision | Court held the court failed to impose any disposition authorized by § 29-2268(3); terminating supervision was an unauthorized and excessively lenient disposition |
| Whether the State may appeal the order as an excessively lenient sentence | The State may appeal a sentence imposed and the June 20, 2017 order is a sentencing order from which appeal lies | Kennedy relied on Caniglia to argue no appealable sentence existed | Court distinguished Caniglia and concluded appellate jurisdiction exists because a sentencing order was entered; it vacated and remanded for further proceedings |
Key Cases Cited
- State v. Phillips, 297 Neb. 469, 900 N.W.2d 522 (Neb. 2017) (addresses procedure for imposing post-release supervision)
- State v. Caniglia, 272 Neb. 662, 724 N.W.2d 316 (Neb. 2006) (holding that ordering probation "terminated as unsuccessful" after a violation was not an authorized sentence and thus not appealable)
- State v. Moore, 274 Neb. 790, 743 N.W.2d 375 (Neb. 2008) (appellate review standard for sentences within statutory limits)