937 N.W.2d 1
Neb. Ct. App.2019Background
- Theodore T. Lillard pled no contest to operating a motor vehicle during revocation (Class IV) and DUI, fourth offense (Class IIIA).
- Trial court sentenced him to 2 years (revocation) and 3 years (DUI), ordered concurrent incarceration, and added 18 months postrelease supervision and 15-year license revocation for the DUI.
- Lillard filed a verified motion nunc pro tunc (alleging improper postrelease supervision and DOC had calculated sentences as consecutive) and filed a notice of appeal four days later; the trial court did not rule on the motion.
- Lillard assigned error: (1) postrelease supervision unlawful under Neb. Rev. Stat. § 28-105(7); (2) excessive/determinate sentences; (3) court failed to state whether new sentences are concurrent or consecutive to preexisting sentences under § 29-2204(6)(c); and (4) failure to set a hearing on his nunc pro tunc motion.
- The Court of Appeals concluded postrelease supervision was unauthorized (per § 28-105 and § 29-2204.02(4)), the determinate sentences were improper when prior indeterminate sentences were in effect, and the trial court failed to state concurrency with prior sentences; the court vacated the sentences and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lawfulness of postrelease supervision | State: Postrelease supervision not authorized because Lillard was serving pre-2015 felonies; § 29-2204.02(4) / § 28-105 bar PRS | Lillard: PRS unlawful under § 28-105(7) given prior convictions | Court: PRS unauthorized; sentencing including PRS vacated and remanded |
| Determinate vs. indeterminate sentences | State: § 29-2204.02(4) requires indeterminate sentences when defendant is serving prior indeterminate sentences | Lillard: challenged sentences as excessive/incorrectly imposed (determinate) | Court: Determinate sentences unauthorized under § 29-2204.02(4); vacated |
| Failure to state concurrency with prior sentences | State: § 29-2204(6)(c) requires court to declare concurrent or consecutive relationship to other sentences | Lillard: Trial court failed to state whether new sentences run with his prior sentences; DOC miscalculated | Court: Trial court erred by not stating concurrency with preexisting sentences; remand required |
| Failure to set hearing on nunc pro tunc motion | State: Moot / will be addressed on remand | Lillard: Trial court abused discretion by not setting a hearing | Court: Declined to address now because resentencing will resolve the issues; did not reach merits |
Key Cases Cited
- State v. Blaha, 303 Neb. 415 (2019) (abuse-of-discretion standard for reviewing sentences)
- State v. Artis, 296 Neb. 172 (2017) (legislative intent of L.B. 1094 and related sentencing corrections)
- State v. Vanness, 300 Neb. 159 (2018) (definition/distinction of determinate vs indeterminate sentence)
- State v. Huston, 298 Neb. 323 (2017) (appellate courts need not decide issues unnecessary to disposition)