State v. Stone, 298 Neb. 53

Background

Harold L. Stone, then 58, was tried and convicted by a jury of four counts of first-degree sexual assault of a child and one count of child abuse based on repeated sexual penetration of a 15-year-old with disabilities.
Each first-degree sexual-assault conviction was a Class IB felony carrying a 15-year mandatory minimum and up to 20 years (court noted Class IB maximum can be life, but court sentenced 15–20 years on each count); child abuse sentence was 4–5 years.
At sentencing Stone argued § 28-319.01’s age-based mandatory minimum (15 years for actors 25 or older) violated Equal Protection because younger offenders (19–24) face lesser penalties (Class II with 1-year minimum).
Stone conceded that if the statute is valid, the court must impose the mandatory minimums but asked that his sentences run concurrently rather than partially consecutively.
The trial court imposed 15–20 years on each sexual-assault count, ordered two of those sentences to run consecutively (others concurrent), and denied the Equal Protection challenge.
On appeal Stone claimed (1) the age-based mandatory minimum lacks a rational basis (as-applied or facial Equal Protection challenge) and (2) consecutive mandatory minimums were excessive. The Nebraska Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Stone preserved an Equal Protection challenge to § 28-319.01	Stone characterized his claim as an "as-applied" challenge to the statute’s age classification	State argued Stone was effectively making a facial challenge and failed to follow the procedure for facial challenges (no motion to quash)	Court held Stone’s argument was a facial challenge (applies to all ≥25 offenders); because he failed to move to quash, the facial challenge was waived and not preserved for review
Whether the age-based mandatory minimum violates Equal Protection (rational-basis)	Stone argued there is no rational basis for imposing substantially harsher penalties based solely on being ≥25 rather than 19–24	State defended the statutory classification (argued procedural default and, on merits, classification permissible)	Court did not reach the merits because the facial challenge was waived; Equal Protection claim not considered on appeal
Whether the trial court abused discretion by imposing consecutive mandatory minimums	Stone argued consecutive mandatory minimums were unreasonable/excessive and should be concurrent	State argued consecutive/concurrent decisions are within trial court discretion absent statutory requirement otherwise	Court held sentencing (including two consecutive mandatory minimums) was within discretion; no abuse shown
Whether the overall sentences were excessive	Stone asserted cumulative effect of consecutive mandatory minimums made sentence excessive	State pointed to seriousness of offenses, grooming, victim’s vulnerability, and risk assessment supporting sentence	Court held sentences were within statutory limits and court considered statutory sentencing factors; no abuse of discretion

Key Cases Cited

J.M. v. Hobbs, 288 Neb. 546, 849 N.W.2d 480 (discussing independent review of statutory constitutionality)
State v. Policky, 285 Neb. 612, 828 N.W.2d 163 (appellate review of sentences within statutory limits)
State v. Harris, 284 Neb. 214, 817 N.W.2d 258 (procedural requirement to move to quash for facial challenges)
State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (preservation of as-applied challenges by not-guilty plea)
State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (definition/explanation of facial vs. as-applied challenges)
State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (trial court discretion to impose consecutive or concurrent sentences)
State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (mandatory minimum statutory interpretation controlling over general minima)
State v. Garza, 295 Neb. 434, 888 N.W.2d 526 (appellate review standard for alleged excessive sentence)
State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (sentencing factors to be considered by court)