Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/25/2017 12:11 AM CDT




                                                        - 557 -
                                  Nebraska Supreme Court A dvance Sheets
                                          297 Nebraska R eports
                                                  STATE v. JONES
                                                 Cite as 297 Neb. 557




                                        State of Nebraska, appellee, v.
                                         Daniel Lee Jones, appellant.
                                                   ___ N.W.2d ___

                                        Filed August 18, 2017.    No. S-16-1001.

                1.	 Sentences: Appeal and Error. An appellate court will not disturb a sen-
                    tence imposed within the statutory limits absent an abuse of discretion
                    by the trial court.
                2.	 Judges: Words and Phrases. A judicial abuse of discretion exists when
                    the reasons or rulings of a trial judge are clearly untenable, unfairly
                    depriving a litigant of a substantial right and denying just results in mat-
                    ters submitted for disposition.
                3.	 Constitutional Law: Sentences. Whether a sentence constitutes cruel
                    and unusual punishment in violation of the Eighth Amendment presents
                    a question of law.
                4.	 Judgments: Appeal and Error. When reviewing a question of law,
                    an appellate court reaches a conclusion independent of the lower
                    court’s ruling.
                5.	 Constitutional Law: Minors: Homicide: Sentences. The Eighth
                    Amendment forbids a state sentencing scheme that mandates life in
                    prison without the possibility of parole for a juvenile offender convicted
                    of homicide.
                6.	 Minors: Homicide: Sentences. A sentencing court must consider spe-
                    cific, individualized factors before handing down a sentence of life
                    imprisonment without parole for a juvenile convicted of a homicide.

                  Appeal from the District Court for Sarpy County: David K.
               A rterburn, Judge. Affirmed.

                 Julie E. Bear, of Reinsch, Slattery, Bear & Minahan, P.C.,
               L.L.O., for appellant.
                              - 558 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                         STATE v. JONES
                        Cite as 297 Neb. 557

  Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
  Miller-Lerman, J.
                      NATURE OF CASE
   Daniel Lee Jones pled no contest to first degree murder in
1999 and was sentenced to imprisonment for life. Jones was 16
years old at the time of the murder, and therefore, his life sen-
tence was vacated in 2015 pursuant to Miller v. Alabama, 567
U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), and he
was granted a resentencing. After a hearing, the district court
for Sarpy County resentenced Jones to imprisonment for 80
years to life. Jones appeals his resentencing. We affirm.
                    STATEMENT OF FACTS
   Jones was charged with first degree murder and use of a
weapon to commit a felony in connection with the stabbing
death of Scott Catenacci. Jones’ birth date is November 7,
1981. The killing occurred on or about September 29, 1998.
Pursuant to a plea agreement, Jones pled no contest to first
degree murder and the State dismissed the use of a weapon
charge. The factual basis presented by the State at the plea
hearing indicated that Jones, in concert with other defendants,
had attacked Catenacci and stabbed him to death. The attack
on Catenacci, having been discussed several days beforehand,
was premeditated, deliberate, and malicious. Jones stabbed
Cateneacci several times, and Catenacci died as a result of the
wounds. Jones was convicted, and on June 28, 1999, the dis-
trict court sentenced him to imprisonment for life.
   Jones’ first direct appeal was dismissed for failure to pay the
statutory docket fee, but Jones obtained a new direct appeal
as postconviction relief. Jones’ conviction and sentence were
affirmed by this court in the new direct appeal. State v. Jones,
274 Neb. 271, 739 N.W.2d 193 (2007).
                              - 559 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                         STATE v. JONES
                        Cite as 297 Neb. 557

   On June 25, 2012, the U.S. Supreme Court held in Miller,
supra, that “mandatory life without parole for those under
the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual punish-
ments.’” 567 U.S. at 465. Although the Court in Miller con-
cluded that the Eighth Amendment prohibited a mandatory
life sentence without parole, the Court allowed the possibil-
ity that a juvenile convicted of a homicide offense could be
sentenced to life in prison, but only after “consideration of
the juvenile’s special circumstances in light of the principles
and purposes of juvenile sentencing.” See Montgomery v.
Louisiana, ___ U.S. ____, 136 S. Ct. 718, 725, 193 L. Ed. 2d
599 (2016). In response to Miller, the Nebraska Legislature
enacted Neb. Rev. Stat. § 28-105.02 (Reissue 2016), which,
inter alia, sets forth mitigating factors that a court must con-
sider when sentencing a juvenile convicted of a Class IA
felony. In State v. Mantich, 287 Neb. 320, 842 N.W.2d 716
(2014), we held that the rule announced in Miller v. Alabama,
567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012),
applied retroactively to a case on collateral review. See, also,
Montgomery, supra.
   On June 21, 2013, Jones, who was 16 years old at the time
of the murder, filed a motion for postconviction relief based on
Miller. After this court’s holding in Mantich and after an evi-
dentiary hearing, the district court on July 9, 2015, sustained
Jones’ motion and, as postconviction relief, vacated his sen-
tence and set the matter for resentencing.
   In August 2016, the court held a mitigation hearing as
part of the resentencing. At the mitigation hearing, Jones
presented evidence including the deposition testimony of a
certified child and adult psychologist regarding adolescent
brain development and the significant differences between
juveniles and adults. Jones presented live testimony of wit-
nesses including Jones’ sister, who testified regarding Jones’
childhood experiences and his home and family life while
growing up. She generally testified that the family moved
                              - 560 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                         STATE v. JONES
                        Cite as 297 Neb. 557

frequently during Jones’ childhood and mostly lived in areas
of poor socioeconomic status that were prone to crime and
gang violence, that Jones never knew or was involved with
his father when growing up, that their mother had a succes-
sion of boyfriends who were abusive, and that Jones had very
little supervision and ended up going “along with the [wrong]
crowd.” Jones also presented testimony by a unit manager in
the prison where Jones was incarcerated that Jones was quiet,
followed the rules, and was not a problem inmate. Jones also
presented testimony by a clinical psychologist who had per-
formed a comprehensive mental health evaluation of Jones
for purposes of the mitigation hearing. He testified regarding
various findings with respect to Jones’ mental and psychologi-
cal functioning and his neuropsychological development. He
further testified, inter alia, that Jones had matured over time
and had supports in place for employability and residence in
the community. He opined in a report that Jones was at a low
risk for future violence.
    The district court resentenced Jones on October 3, 2016.
At the sentencing hearing, the court stated that it had consid-
ered Jones’
       age, now and at the time of the offense, his mentality,
       education, experience, social and cultural background,
       past criminal record or record of law-abiding conduct,
       the motivation for the offense, as well as the nature and
       severity of the offense and the significant amount of vio-
       lence involved in the commission of the crime.
The court stated that it had also considered, inter alia,
       all of the evidence adduced at the mitigation hearing,
       including, but not limited to, the expert testimony, the
       pertinent case law, including, but not limited to, the
             ale underlying the case [Miller, supra], . . . the
       ration­
       records of the Department of Corrections concerning
       [Jones’] actions and behavior while incarcerated,
and “the factors set forth in [§] 28-105.02(2).” The court also
noted that the crime committed by Jones “was an extremely
                               - 561 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. JONES
                         Cite as 297 Neb. 557

heinous crime” involving a “brutal, brutal murder” and that
Jones had “participated both in planning and the execu-
tion of the crime.” The court concluded that “a sentence of
some severity is required but not such severity that [Jones]
would never have hope of being released from prison.” The
court resentenced Jones to imprisonment for 80 years to life
with credit for time served and statutory parole eligibility at
age 56.
   Jones appeals the district court’s resentencing.

                 ASSIGNMENTS OF ERROR
   Jones claims, restated and summarized, that his sentence of
80 years’ to life imprisonment with parole eligibility at age
56 is excessive and, in particular, that the court (1) abused its
discretion by imposing a de facto life sentence which violated
constitutional protections against cruel and unusual punishment
and denied him a meaningful opportunity for release based
upon demonstrated maturity and rehabilitation, (2) violated his
constitutional due process rights when it failed to make spe-
cific findings to demonstrate that it adequately considered his
age-related characteristics, and (3) violated his constitutional
rights against cruel and unusual punishment by imposing a
sentence which was not proportional.

                   STANDARDS OF REVIEW
   [1,2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Jackson, ante p. 22, ___ N.W.2d ___
(2017); State v. Mantich, 287 Neb. 320, 842 N.W.2d 716
(2014). A judicial abuse of discretion exists when the reasons
or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. Id.
   [3,4] Whether a sentence constitutes cruel and unusual pun-
ishment in violation of the Eighth Amendment presents a
question of law. State v. Nollen, 296 Neb. 94, 892 N.W.2d 81
                              - 562 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                         STATE v. JONES
                        Cite as 297 Neb. 557

(2017). When reviewing a question of law, an appellate court
reaches a conclusion independent of the lower court’s rul-
ing. Id.

                            ANALYSIS
   [5,6] In Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455,
183 L. Ed. 2d 407 (2012), the U.S. Supreme Court held the
Eighth Amendment forbids a state sentencing scheme that
mandates life in prison without the possibility of parole for a
juvenile offender convicted of homicide. Miller did not “cat-
egorically bar” the imposition of a sentence of life imprison-
ment without parole, but, instead, “held that a [sentencing
court] must consider specific, individualized factors before
handing down a sentence of life imprisonment without parole
for a juvenile” convicted of a homicide. Mantich, 287 Neb.
at 339-40, 842 N.W.2d at 730. We have previously held, in
Mantich, that Miller applied retroactively and that therefore,
any juvenile sentenced to mandatory life imprisonment without
parole could have his or her sentence vacated and the cause
remanded for resentencing.
   In response to Miller, the Nebraska Legislature amended
the sentencing laws for juveniles convicted of first degree
murder.
   Section 28-105.02, which applies to this case, provides
as follows:
         (1) Notwithstanding any other provision of law, the
      penalty for any person convicted of a Class IA felony for
      an offense committed when such person was under the
      age of eighteen years shall be a maximum sentence of not
      greater than life imprisonment and a minimum sentence
      of not less than forty years’ imprisonment.
         (2) In determining the sentence of a convicted person
      under subsection (1) of this section, the court shall con-
      sider mitigating factors which led to the commission of
      the offense. The convicted person may submit mitigating
      factors to the court, including, but not limited to:
                              - 563 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                         STATE v. JONES
                        Cite as 297 Neb. 557

        (a) The convicted person’s age at the time of the
     offense;
        (b) The impetuosity of the convicted person;
        (c) The convicted person’s family and community
     environment;
        (d) The convicted person’s ability to appreciate the
     risks and consequences of the conduct;
        (e) The convicted person’s intellectual capacity; and
        (f) The outcome of a comprehensive mental health
     evaluation of the convicted person conducted by an ado-
     lescent mental health professional licensed in this state.
     The evaluation shall include, but not be limited to, inter-
     views with the convicted person’s family in order to learn
     about the convicted person’s prenatal history, develop-
     mental history, medical history, substance abuse treatment
     history, if any, social history, and psychological history.
   With these principles in mind, we analyze Jones’ assign-
ments of error, each of which challenges the appropriateness of
the sentence imposed at the resentencing.

The Sentencing Court Did Not Impose a
De Facto Life Sentence in Violation of
the Eighth Amendment and Neb.
Const. art. I, §§ 9 and 15.
   Jones asserts that his sentence of 80 years’ to life impris-
onment “is the functional equivalent of life without parole.”
Brief for appellant at 27. In this regard, at the sentencing
hearing, Jones submitted and the district court considered life
expectancy information for the purpose of illustrating that con-
victed persons incarcerated in their youth can expect a shorter
lifespan. Jones contends that convicted persons incarcerated
in their youth may never reach parole eligibility age or that if
they reach parole eligibility at an advanced age, the sentence
is tantamount to a life sentence. Jones similarly contends that
a “geriatric parole” does not afford him an opportunity for
meaningful release. Id.
                             - 564 -
          Nebraska Supreme Court A dvance Sheets
                  297 Nebraska R eports
                        STATE v. JONES
                       Cite as 297 Neb. 557

   We have recently considered and rejected these conten-
tions. In State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017),
we declined to find that life expectancy is the sole control-
ling issue, but we acknowledged that it is a matter the sen-
tencing court can consider. In Smith, we also concluded that
U.S. Supreme Court precedent indicated that the “meaningful
opportunity” requirement requires a “meaningful and realistic
opportunity to obtain release” from prison but did not refer
to the enjoyment of life after release. 295 Neb. at 979, 892
N.W.2d at 66.
   We continue to believe our conclusions in Smith are sound,
and we apply them here. In this regard, we note that when
resentencing Jones, the district court explicitly considered
Jones’ anticipated release and intended to give Jones “hope of
being released from prison.” Given the record and our juris-
prudence, we find no merit to Jones’ contention that his parole
eligibility at age 56 is unconstitutional.

The District Court Did Not Err When It Did Not
Make Specific Findings of Fact Regarding
Age-Related Characteristics.
   Jones contends that his constitutional rights to due process
were violated because the district court did not make specific
findings regarding age-related characteristics. We recently
considered and rejected a comparable argument in State v.
Garza, 295 Neb. 434, 888 N.W.2d 526 (2016). In Garza,
we stated, “[The appellant] argues that when the sentencing
court imposed the 90-to-90-year sentence, it failed to make
a specific finding that [he] was that ‘“rare juvenile offender
whose crime reflects irreparable corruption”’ as opposed to
‘“transient immaturity.”’” 295 Neb. at 447, 888 N.W.2d
at 534. Like the defendant in Garza, because Jones was
not sentenced to life imprisonment without parole, we find
no merit to Jones’ argument that the sentencing court was
required to make specific findings including a finding regard-
ing “irreparable corruption.” See, also, State v. Jackson, ante
                              - 565 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                         STATE v. JONES
                        Cite as 297 Neb. 557

p. 22, ___ N.W.2d ___ (2017); State v. Nollen, 296 Neb. 94,
892 N.W.2d 81 (2017); State v. Mantich, 287 Neb. 320, 842
N.W.2d 716 (2014).
   Jones suggests that other courts have chosen to require find-
ings of fact. Compare Sen v. State, 301 P.3d 106 (Wyo. 2013)
(stating in case imposing life sentence without parole that
findings of fact are generally indicated). However, as Jones
acknowledges, Miller v. Alabama, 567 U.S. 460, 132 S. Ct.
2455, 183 L. Ed. 2d 407 (2012), did not impose a formal fact-
finding requirement where the sentence includes the possibility
of parole. Accordingly, we continue to adhere to our previously
announced jurisprudence in this area.
   We have reviewed the record and the resentencing court’s
order. By the announcement of its consideration of the factors
in § 28-105.02(2), not repeated here, as well as the customary
factors in imposing sentences, we believe the sentencing court
met the due process required by the Constitution, Miller, and
Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193
L. Ed. 2d 599 (2016).

The Sentence Is Not Unconstitutionally
Disproportionate.
   Jones argues that in his case, the punishment does not fit
the offender, based on “‘the basic “precept of justice that
punishment for crime should be graduated and proportioned”’
to both the offender and the offense.” See Miller, 567 U.S.
at 469.
   Jones urges us to give considerable weight to his youth
because, although his age was considered in sentencing, he
claims that his crime reflects “‘“unfortunate yet transient
immaturity”’” and that thus, his sentence still violates the
Eighth Amendment. See Montgomery, 136 S. Ct. at 734. In
Montgomery, the Court recognized that because of a juvenile
homicide offender’s “‘diminished culpability and heightened
capacity for change,’” it should be uncommon to deny a
juvenile offender parole except in cases involving “the rare
                              - 566 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                         STATE v. JONES
                        Cite as 297 Neb. 557

juvenile offender who exhibits such irretrievable depravity that
rehabilitation is impossible.” 136 S. Ct. at 733. Jones compares
his sentence to those of other juvenile homicide offenders and
contends that his prior immaturity at age 16, coupled with
improved behavior since his coming of age, establishes his
capacity for remorse and reform.
   In this regard, at the sentencing hearing, Jones submitted
and the court considered a matrix of sentences imposed on
other juveniles resentenced in Nebraska under Miller. Jones
suggests his sentence was comparatively more severe. We do
not agree.
   We have previously considered and rejected a broad pro-
portionality claim in Mantich, supra. In Mantich, we stated:
         The Eighth Amendment “prohibits not only barbaric
      punishments, but also sentences that are disproportion-
      ate to the crime committed.” The U.S. Supreme Court
      has characterized this as a “‘narrow proportionality prin-
      ciple’” which “‘does not require strict proportionality
      between crime and sentence’” but, rather, “‘forbids only
      extreme sentences that are “grossly disproportionate” to
      the crime.’”
287 Neb. at 353-54, 842 N.W.2d at 738.
   In this case, we recognize Jones’ youthful status in that he
was 6 weeks shy of his 17th birthday when he participated
in the murder. However, evidence showed Jones planned
the murder in advance, executed the crime, and, after see-
ing it through to completion, undertook acts of concealment,
including disposing of the knife used during the murder and
lying to the police. Jones’ actions were not merely youthful
impulse; they were calculated, malicious, and violent. The
sentencing court stated “a sentence of some severity” was
required. We agree with the sentencing court that the sentence
is appropriate for the offense and offender. We therefore con-
clude that the sentence was not disproportionate under the
Eighth Amendment.
                              - 567 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                         STATE v. JONES
                        Cite as 297 Neb. 557

                         CONCLUSION
   The appropriateness of a sentence is necessarily a subjective
judgment and includes the sentencing judge’s observations of
a convicted person’s demeanor and attitude and all of the facts
and circumstances surrounding his life. The sentencing court
adhered to these principles. Upon our review of the record, we
conclude that Jones’ sentence of 80 years’ to life imprisonment
with parole eligibility at age 56 is in accordance with consti-
tutional principles; Miller v. Alabama, 567 U.S. 460, 132 S.
Ct. 2455, 183 L. Ed. 2d 407 (2012); and § 28-105.02, and we
therefore affirm Jones’ sentence.
                                                     A ffirmed.
