Summary
The Nebraska Supreme Court reviewed Derek J. Roth’s sentences following revocation of probation for convictions involving possession of a deadly weapon by a prohibited person and third-degree domestic assault. The court held that the imprisonment terms were not excessive, but concluded that the district court plainly erred by failing to impose mandatory post-release supervision where required by statute. The sentences were vacated and the matter was remanded with directions.
Topics
Practice areas
Questions Presented
- Whether the district court abused its discretion by imposing excessive terms of imprisonment after revoking Roth's probation.
- Whether the district court committed plain error by failing to impose the mandatory minimum period of post-release supervision required for Roth's Class III felony sentences.
- Whether the case should be remanded for determination of whether the post-release supervision term should run concurrently or consecutively with other post-release supervision.
Holdings
- The district court did not abuse its discretion by imposing concurrent 3-year terms of imprisonment on the two Class III felonies and a concurrent 1-year term on the Class I misdemeanor, consecutive to Roth's Lancaster County sentence.
- The district court committed plain error by failing to impose the mandatory post-release supervision required for Roth's Class III felony sentences.
- The required post-release supervision term was 9 months, and the district court had to determine whether it would run concurrently or consecutively with other post-release supervision and comply with applicable supervision-order requirements.
Key quotations
“What matters under § 29‑2204.02(4) is that the sentences for those offenses are “imposed consecutively or concurrently” to each other.” (1023)
“The district court committed plain error in failing to follow the statutory requirements of §§ 29‑2204.02 and 28‑105 of a minimum period of 9 months’ post‑release supervision for the Class III felonies for which periods of incarceration were imposed.” (1024)
“Finding plain error in the court’s failure to impose post‑release supervision, we vacate the sentences and remand with directions to modify the sentences to impose 9 months’ post‑release supervision” (1025)
Factual background
Roth pleaded no contest to two Class III felonies for possession of a deadly weapon by a prohibited person and one Class I misdemeanor for third degree domestic assault arising from a domestic-violence incident. He initially received concurrent 30-month terms of intensive supervised probation, but accumulated administrative and custodial sanctions and later admitted violating probation after being arrested on new charges involving the same victim. Upon revocation, the district court imposed concurrent terms of 3 years' imprisonment on the felony convictions and 1 year's imprisonment on the misdemeanor conviction, consecutive to a Lancaster County sentence, but expressly declined to impose post-release supervision.
Procedural history
Roth pleaded no contest to two Class III felony counts of possession of a deadly weapon by a prohibited person and one Class I misdemeanor count of third degree domestic assault. He initially received concurrent terms of intensive supervised probation. After violating probation, he was resentenced to concurrent terms of 3 years' imprisonment on the felony counts and 1 year's imprisonment on the misdemeanor count, consecutive to a sentence in a Lancaster County case; the district court imposed no post-release supervision. The Nebraska Supreme Court rejected the excessive-sentence challenge but found plain error in the failure to impose mandatory post-release supervision, vacated the sentences, and remanded with directions.
Remand instructions
Vacate the sentences and modify them to impose 9 months' post-release supervision on the Class III felony sentences. Determine the specific terms and conditions of post-release supervision under Neb. Rev. Stat. § 28-105(5) and Neb. Ct. R. § 6-1904, and determine whether the post-release supervision is to run concurrently or consecutively with any other post-release supervision.