940 N.W.2d 847
Neb. Ct. App.2020Background
- In May 2018 at a rural Nebraska trapshooting/going-away party, Mason J. Wells and a codefendant overtook a pickup carrying four juveniles, brandished firearms, forced at least one victim from the vehicle at gunpoint, and participated in assaults and threats; victims ranged from 15–17 years old.
- Wells pled no contest to an amended information charging seven counts: possession of a firearm during the commission of a felony (Class II), kidnapping (Class II), terroristic threats (Class IIIA), two counts of second-degree false imprisonment (Class I misdemeanors), third-degree assault (Class I misdemeanor), and criminal mischief (Class II misdemeanor).
- At sentencing the district court imposed 5–10 years on counts I and II (to run consecutively), 3 years on count III, 1 year each on counts IV–VI, and 6 months on count VII; counts II–VII ran concurrently with each other but consecutively to count I. Wells received credit for 4 days and restitution was ordered.
- Wells appealed, arguing sentences were excessive. The State countered that the sentences were within statutory limits but pointed out plain error: several sentences were imposed as determinate when statutory scheme required indeterminate sentences where Class II felonies were involved.
- The Court of Appeals affirmed the sentences on counts I and II, but found plain error as to counts III–VII and vacated and remanded those counts for resentencing to impose indeterminate sentences in accordance with Neb. Rev. Stat. § 29-2204.02(4) and (5).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Wells) | Held |
|---|---|---|---|
| Whether Wells' sentences were excessive | Sentences were within statutory range, necessary to protect public, probation inappropriate | Sentences excessive given youth, background, alcohol-fueled incident, limited record | Counts I & II affirmed; no abuse of discretion in imposing 5–10 year terms |
| Whether determinate vs indeterminate form of sentences complied with statute (§29-2204.02) for counts III–VII | Plain error: sentences for Class IIIA felony and misdemeanors running with Class II felonies must be indeterminate under §29-2204.02 | Trial court imposed determinate sentences; Wells primarily argued excessiveness, not form | Sentences on counts III–VII vacated; remanded for resentencing to impose indeterminate sentences per statute |
Key Cases Cited
- State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (Neb. 2018) (appellate review will not disturb sentence within statutory limits absent abuse of discretion)
- State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (Neb. 2018) (an indeterminate sentence is the minimum and maximum term or range, even if identical)
- State v. Thompson, 301 Neb. 472, 919 N.W.2d 122 (Neb. 2018) (vacating and remanding where sentences failed to comply with §29-2204.02 requirements)