State v. Stone
298 Neb. 53
| Neb. | 2017Background
- Stone was charged in 2016 with four counts of first-degree sexual assault of a child, one count of third-degree sexual assault of a child, and one count of child abuse for acts in 2014–2015 with a victim under 16.
- Jury found Stone guilty on four first-degree sexual assault counts and one child abuse count; each first-degree conviction carried a 15-year mandatory minimum and up to life.
- At sentencing, the court imposed 15– to 20-year terms on the four first-degree convictions and a 4– to 5-year term on the child abuse count, with two of the sentences running consecutively and the rest concurrent.
- Stone argued the mandatory-minimum scheme (based on age) violated equal protection and asked for consecutive sentences to be avoided or for consolidation as a Class II felony sentence.
- Stone filed a notice of constitutional question but did not move to quash; the court treated the issue as a facial challenge and the Nebraska Supreme Court concluded it was not preserved for review.
- The Nebraska Supreme Court affirmed, holding no abuse of discretion occurred in sentencing and that the facial challenge to § 28-319.01 was not preserved for appellate review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of constitutional challenge | Stone preserves as-applied challenge to § 28-319.01(2). | State contends challenge is facial, not preserved as applied. | Challenge deemed facial; not preserved for review. |
| Consecutive mandatory-minimum sentences | Consecutive sentencing is excessive; should be concurrent to reduce harshness. | Trial court acted within discretion; consecutive sentences permissible when not required to run only concurrently by statute. | No abuse of discretion; two sentences may run consecutively. |
| Excessive-sentence claim | Sentence is excessive given age-based classification. | Court properly weighed factors within statutory range. | No abuse; sentences within statutory limits and properly considered factors. |
Key Cases Cited
- State v. Russell, 291 Neb. 33 (2015) (15-year mandatory minimum controls over Class IB minimum)
- State v. Berney, 288 Neb. 377 (2014) (consecutive sentencing for separate crimes)
- Harris v. State, 284 Neb. 214 (2012) (preservation of facial vs as-applied challenges; related standards)
- J.M. v. Hobbs, 288 Neb. 546 (2014) (preservation of constitutional challenges under Williams framework)
- State v. Rogers, 297 Neb. 265 (2017) (recent guidance on preservation and review of constitutional challenges)