STATE OF NEBRASKA, APPELLEE, V. RONALD L. LANTZ, SR., APPELLANT.
No. S-14-517
Supreme Court of Nebraska
April 23, 2015
290 Neb. 757
Nebraska Advance Sheets
- Sentences: Appeal and Error. An аppellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.
- Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court‘s determinаtion.
- Sentences. Generally, it is within a trial court‘s discretion to direct that sentences imposed for separate crimes be served either concurrently or consecutively.
- ____. In Nebraska, unless prohibited by statute or unless the sentencing court states otherwise when it pronounces the sentences, multiple sentences imposed at the same time run concurrently with each other.
Appeal from the District Court for Jefferson County: PAUL W. KORSLUND, Judge. Judgment vacated, and cause remanded with directions.
Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
WRIGHT, J.
NATURE OF CASE
Ronald L. Lantz, Sr., was convicted of three counts of first degree sexual assault of a child, a crime which carries a mandatory minimum sentence. He was sеntenced to 15 to 25 years’ imprisonment on each count with two counts to be served consecutively and the third to be served concurrently with the other two.
On his direct appeal, the Nebraska Court of Appeals found plain error in the sentencing, remanded thе cause, and ordered the district court to resentence Lantz to three consecutive sentences. State v. Lantz, 21 Neb. App. 679, 842 N.W.2d 216 (2014). On his appeal from the resentencing, we granted bypass in order to address sentencing for crimes carrying mandatory minimum penalties.
SCOPE OF REVIEW
[1] An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013).
[2] Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court‘s determination. State v. Smith, 286 Neb. 77, 834 N.W.2d 799 (2013).
FACTS
A jury convictеd Lantz on three counts of first degree sexual assault of a child, defined in
On direct appeal, the State argued that it was plain error to give Lantz a concurrent sentence for the third count of sexual assault, because
Lantz petitioned this court for further review and assigned that the Court of Appeals erred in ordering the district court to resentence him to three consecutive sentences. Lantz asserted that unlike mandatory minimum sentences for use of a deadly weapon under
On June 20, 2014, we issued our opinion in State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014). In Berney, a district court interpreted our decision in Castillas tо mean that a sentence for any crime with a mandatory minimum sentence must be served consecutively. The court applied the rule to the two burglary convictions of a defendant who had been convicted of being a habitual criminal. The court sentenced Matthew Berney to two 10-year minimum sentences, to be served consecutively. In Berney, 288 Neb. at 382, 847 N.W.2d at 736, we clarified our holding in State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), stating, “We were not speaking of enhancements under the habitual criminal statute, but of those specific crimes that required a mandatory minimum sentence to be served consecutivеly to other sentences imposed.”
Lantz now argues that our holding in Berney conflicts with the Court of Appeals’ decision in State v. Lantz, 21 Neb. App. 679, 842 N.W.2d 216 (2014), and that the district court had discretion to impose concurrent sentences. Lantz’ fundamental argument is that
We granted bypass on Lantz’ appeal.
ASSIGNMENT OF ERROR
Lantz assigns that the Court of Appeals erred in ordering the district court to resentence his three convictions to be served consecutively to еach other because
ANALYSIS
We are presented with a question of statutory interpretation. The question is whether a defendant convicted of multiple crimes each carrying a mandatory minimum sentence must serve the sentence on each crime consecutively. Based upon our statements in State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), the Court of Appeals concluded that mandatory minimum sentences cannot be served concurrently. See State v. Lantz, supra. Five months after the Court of Appeals’ opinion was filed, we released our decision in State v. Berney, supra.
Berney pled no contest to two counts of burglary. His crimes were enhanced under the habitual criminal statute, which provides that each crime enhanced under that statute carries a mandatory minimum sentence of 10 years. See
Because of the conflict between our opinion in State v. Berney, supra, and the Court of Appeals’ opinion in State v. Lantz, supra, we granted bypass of Lantz’ appeal from his sentencing to three consecutive sentences of 15 to 25 years’ imprisonment for each conviction of first dеgree sexual assault of a child.
The Court of Appeals, using the above language from our decision in State v. Castillas, supra, found plain error because the district court did not sentence Lantz to three consecutive sentences. The Court of Appeals’ decision was filed after our opinion in Castillas but before we filed our decision in State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014). In Berney, we distinguished and limited our holding in Castillas to those specific crimes that required a mandatory minimum sentence to be served consecutively to all other sentences imposed. We noted there was a distinction between (1) a conviction for a crime that requires both a mаndatory minimum sentence and mandates consecutive sentencing and (2) the enhancement of the penalty for a crime under the habitual criminal statute. See State v. Berney, supra. In the former, the mandatory sentence must be served consecutively to any other sentence imposed because the statute for that crime requires it. In the latter, the statute does not require the enhanced penalty to be served consecutively to any other sentence imposed, and therefore, the sentence is left to the discretion of thе court. Since Berney was convicted of burglary, which did not require a mandatory minimum sentence, the punishment enhanced under the habitual criminal statute did not require the enhanced penalties to be served consecutively.
The tension between Berney and Lantz was created by the overly broad language used in State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013). David Castillas was convicted of two counts оf discharging a firearm at a dwelling while in or near a motor vehicle, one count of second degree assault, and three counts of use of a firearm to commit a felony. The aggregate sentences amounted to 30 to 80 years: 5 to 20 years in prison on each conviction of discharging a firearm, 5 to 10 years in prison on the conviction of second degree assault, and 5 to 10 years in prison on each conviction of use of a weapon to commit a felony. The court ordered all sentences to be served consecutively. At sentencing, the court advised Castillas that he would be parole eligible in 25 years and that, if he lost no “good time,” he would be released after 40 years. On appeal, Castillas assigned, inter alia, that the court erred in ordering a sentence that was substantially different from its intended sentence.
Only the conviction of second degree assault did not carry a mandatory minimum sentence of 5 years in prison. Each of the three sentences for use of a weapon under
Because all the sentences were ordered to be served consecutively, the only good time that could be earned was on the 5-year sentence for second degree assault, which was Castillas’ only сonviction not carrying a mandatory minimum.
We were not speaking of enhancements under the habitual criminal statute, but of those specific crimes that required a mandatory minimum sentence to be served consecutively to other sentences imposed.
There is a distinction between a conviction for a crime that requires both a mаndatory minimum sentence and mandates consecutive sentences, and the enhancement of the penalty for a crime because the defendant is found to be a habitual criminal. In the former, the mandatory minimum sentence must be served consecutively to аny other sentence imposed, because the statute for that crime requires it. In the latter, the law does not require the enhanced penalty to be served consecutively to any other sentence imposed. The sentence is left to the discretion оf the court.
To the extent that our language in Castillas can be interpreted to mean that all convictions carrying a mandatory minimum sentence must be served consecutively to all other sentences, such interpretation is expressly disapproved.
With that said, we proceed to Lantz’ claim that it was error to order the district court to sentence him to three consecutive sentences for first degree sexual assault of a child. In State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), we were speaking of those specific crimes that require a mandatory minimum sentence to be served conseсutively to other sentences imposed. Our overly broad language, upon which the Court of Appeals relied, was misleading.
[3,4] Generally, it is within a trial court‘s discretion to direct that sentences imposed for separate crimes be served either concurrently оr consecutively. State v. Policky, 285 Neb. 612, 828 N.W.2d 163 (2013). In Nebraska, unless prohibited by statute or unless the sentencing court states otherwise when it pronounces the sentences, multiple sentences imposed at the same time run concurrently with each other. State v. King, 275 Neb. 899, 750 N.W.2d 674 (2008).
Our conclusion reflects our deference to the Legislature‘s intent in statutorily prescribing criminal penalties. The Legislature included a provision in
Together, the above statutes demonstrate that the Legislature uses very specific language to prescribe sentencing guidelines. Therefore, we conclude that the exclusion of a requirement that all mandatory minimum sentences be served
Consequently, we find that it was not plain error for the district court to sentence Lantz concurrently for his third conviction under
CONCLUSION
For the reasons stated above, we vacate the district court‘s May 8, 2014, resentencing order and we remand the cause with directions to reinstate the original sentences imposed by the district court ordering that the sentences for counts I and II be served consecutively and that the sentence for count III be served concurrently.
JUDGMENT VACATED, AND CAUSE REMANDED WITH DIRECTIONS.