State v. Stone
298 Neb. 53
| Neb. | 2017Background
- Stone, 58, was convicted of four counts of first-degree sexual assault of a child and one count of child abuse, each Class IB felony with a 15-year mandatory minimum and potential life maximum.
- The age-based mandatory minimum under § 28-319.01(2) distinguishes offenders 25+ from those younger, creating a harsher penalty for Stone because he was 58.
- At sentencing the court imposed four 15–20 year terms for the sexual assaults and a 4–5 year term for the child abuse, with two of the sexual-s assault terms running consecutively and the rest concurrent.
- Stone timely appealed, lodging a constitutional challenge to the § 28-319.01 scheme and filed a notice of constitutional question; no motion to quash was filed.
- The Nebraska Supreme Court held Stone’s facial challenge was not preserved for appellate review and affirmed the district court’s judgment and sentences.
- The court also found no abuse of discretion in ordering the consecutive sentences within statutory limits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation and type of challenge to §28-319.01(2) | Stone framed as as-applied challenge | State treated as facial challenge | Challenge not preserved; reviewed only as affirmed. |
| Consecutive sentences under § 28-319.01(2) | Consecutive minimums were excessive | Court has discretion to order consecutive sentences | No abuse; consecutive terms affirmed. |
| Constitutionality of age-based classification | No rational basis for harsher penalty for 25+ | Classification constitutional; not preserved for review | Facial challenge not reviewed; upheld as within discretion. |
Key Cases Cited
- State v. Harris, 284 Neb. 214 (Neb. 2012) (as-applied vs facial challenges; preservation guidance)
- State v. Policky, 285 Neb. 612 (Neb. 2013) (preservation and classification of challenges)
- State v. Abejide, 293 Neb. 687 (Neb. 2016) (consecutive-sentencing principles; mandatory minimums)
- State v. Berney, 288 Neb. 377 (Neb. 2014) (consecutive sentencing and discretion)
- State v. Russell, 291 Neb. 33 (Neb. 2015) (15-year mandatory minimum controls over general Class IB minimums)
- State v. Garza, 295 Neb. 434 (Neb. 2016) (affirmation of district court judgments and sentencing)
- State v. Rogers, 297 Neb. 265 (Neb. 2017) (recent guidance on sentencing review)