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11/30/2018 08:10 AM CST




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                                  Nebraska Supreme Court A dvance Sheets
                                          301 Nebraska R eports
                                                  STATE v. LESSLEY
                                                  Cite as 301 Neb. 734




                                        State of Nebraska, appellee, v.
                                         Tyeric L. Lessley, appellant.
                                                    ___ N.W.2d ___

                                        Filed November 30, 2018.   No. S-18-096.

                1.	 Convictions: Evidence: Appeal and Error. In reviewing a criminal
                    conviction for a sufficiency of the evidence claim, whether the evidence
                    is direct, circumstantial, or a combination thereof, the standard is the
                    same: An appellate court does not resolve conflicts in the evidence, pass
                    on the credibility of witnesses, or reweigh the evidence; such matters
                    are for the finder of fact. The relevant question for an appellate court
                    is whether, after viewing the evidence in the light most favorable to the
                    prosecution, any rational trier of fact could have found the essential ele-
                    ments of the crime beyond a reasonable doubt.
                2.	 Jury Instructions: Appeal and Error. Whether jury instructions are
                    correct is a question of law, which an appellate court resolves indepen-
                    dently of the lower court’s decision.
                3.	 Homicide: Lesser-Included Offenses: Jury Instructions. A court is
                    required to instruct the jury on all lesser degrees of criminal homicide
                    for which there is proper evidence before the jury, whether requested to
                    do so or not.
                4.	 ____: ____: ____. A court is not required to instruct a jury on lesser
                    degrees of homicide where the first degree murder charge against the
                    defendant is based upon a theory of felony murder.
                5.	 Sentences: Time. A sentence validly imposed takes effect from the time
                    it is pronounced.
                6.	 Sentences. When a valid sentence has been put into execution, the trial
                    court cannot modify, amend, or revise it in any way, either during or
                    after the term or session of court at which the sentence was imposed.
                7.	 Sentences: Judges: Records. The circumstances under which a judge
                    may correct an inadvertent mispronouncement of a sentence are lim-
                    ited to those instances in which it is clear that the defendant has not
                    yet left the courtroom; it is obvious that the judge, in correcting his
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                          STATE v. LESSLEY
                          Cite as 301 Neb. 734

   or her language, did not change in any manner the sentence originally
   intended; and no written notation of the inadvertently mispronounced
   sentence was made in the records of the court.

  Appeal from the District Court for Douglas County: M arlon
A. Polk, Judge. Affirmed in part, and in part vacated and
remanded for resentencing.
   Thomas C. Riley, Douglas County Public Defender, Matthew
J. Miller, and Natalie M. Andrews for appellant.
   Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
  Heavican, C.J.
                        INTRODUCTION
   Tyeric L. Lessley was convicted of first degree murder,
first degree assault, two counts of use of a weapon to commit
a felony, and possession of a deadly weapon by a prohibited
person. Lessley appeals, arguing that the evidence was not
sufficient to support his convictions and that he was entitled
to a manslaughter instruction. We affirm Lessley’s convic-
tions and sentences for first degree murder and first degree
assault, affirm his convictions and vacate the sentences for
use of a weapon to commit a felony and possession of a
deadly weapon by a prohibited person, and remand the cause
for resentencing.
                      BACKGROUND
Events of October 29, 2016.
  Between 4 and 4:30 a.m. on October 29, 2016, Curtis
Goodwin was awake in the home shared with his fiance,
Suzanne Pope. The home was located on North 39th Street in
Omaha, Nebraska, at the corner of 39th and Kansas Streets.
Goodwin was paying bills on his laptop computer, and Pope
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                        STATE v. LESSLEY
                        Cite as 301 Neb. 734

was sleeping in a bed in the main floor living room of the
residence, which the couple used as their bedroom. Also in the
home was Pope’s 7-year-old daughter.
   During this time, Goodwin left the home through the back
door to investigate a knocking sound he heard at the front of
the house. Goodwin testified that family and friends never used
the front door of the residence, which faced North 39th Street,
but instead entered and exited through the rear door. Indeed,
pictures of the scene show that the front door was blocked
from the inside by Goodwin and Pope’s bed.
   Goodwin grabbed a baseball bat before leaving the house.
Goodwin then walked around to his front door, where he
discovered a male knocking on the door. Goodwin asked
the male if he could help him. The male pointed a gun in
Goodwin’s face and responded, “Yeah, n-----, I’m your worst
mother fucking nightmare.” The male, whom Goodwin tes-
tified he did not recognize, then told Goodwin to get into
the house.
   The two walked around the side of the house to the back
entrance. Goodwin testified that at some point along the way,
he dropped the bat. Once inside, the male told Goodwin to
“give me all your money and your shit.” Goodwin woke Pope
to tell her that someone was there to rob them. According
to Goodwin, both he and Pope told the intruder they did not
have any money. At that point, the intruder shot Pope, took
Goodwin’s laptop, and shot Goodwin as Goodwin lunged
at him.
   Goodwin was able to follow the intruder out of the house
and into the backyard, where Goodwin collapsed as the
intruder ran down the street carrying Goodwin’s laptop. At this
time, Goodwin noticed an unfamiliar dark-colored Chevrolet
Suburban or Tahoe parked in his driveway, which was located
in the backyard of the residence and opened onto Kansas
Street. Goodwin testified that this vehicle had no license plates
and described the back doors as opening “like kitchen cabi-
nets.” The intruder walked back past Goodwin. By this time,
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          Nebraska Supreme Court A dvance Sheets
                  301 Nebraska R eports
                       STATE v. LESSLEY
                       Cite as 301 Neb. 734

Goodwin had retrieved the bat he dropped earlier and swung
it in the direction of the intruder. Goodwin testified that he
hit “something,” but did not know if it was the intruder. The
intruder then shot Goodwin again, dropped the laptop, and
drove away in the vehicle, westbound on Kansas Street.
   Pope was killed and Goodwin was injured in this incident.
Goodwin was in a coma for nearly 3 months and sustained
the loss of one of his kidneys, his spleen and gallbladder,
and several feet of his small intestine. Goodwin has been
diagnosed with short bowel syndrome, which requires liquid
nutrition and a colostomy bag. Complications from his injuries
caused Goodwin to fall into a second coma, during which he
nearly died.
   “ShotSpotter” evidence corroborated the timing of the gun-
shots. ShotSpotter is a technology utilized by the Omaha
Police Department to determine the location of gunshots based
upon sounds captured by microphones positioned in certain
parts of the city. Here, ShotSpotter captured the sound of two
gunshots, 20 seconds apart, sounding from outside Goodwin
and Pope’s residence at 4:30 and 4:31 a.m. Neighbors also
testified they heard gunshots around that time.
   In addition, neighbors witnessed a vehicle travel west from
the residence after they heard the gunshots. One neighbor
testified that she saw a dark blue, green, or black Suburban
or Tahoe. A second neighbor testified that he witnessed a
dark-colored Suburban or Tahoe with a loud exhaust, custom
wheels, and tinted windows, and that based upon his experi-
ence with vehicles, he estimated the vehicle was between a
1996 and a 1999 model due to its more squared frame.

DNA and Other Evidence.
   Multiple items were located at the scene of the shooting. In
particular, one firearm projectile was found in the driveway
of the residence; another was dug from a wall of the living
room of the residence; and a third was retrieved from Pope’s
body during autopsy. A firearms examiner determined that all
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                   301 Nebraska R eports
                        STATE v. LESSLEY
                        Cite as 301 Neb. 734

three projectiles were fired from the same firearm. No firearm
was ever recovered in this case.
   Goodwin’s laptop computer was found in the backyard near
the driveway. It had a partial shoeprint on its cover. A tread
expert testified that the shoeprint was consistent with a Nike
“Shox” tennis shoe. The laptop was swabbed for DNA, but the
only profiles recovered were Goodwin’s and Pope’s; testing as
to Lessley was inconclusive.
   Various items of evidence were also recovered from the
scene and tested. A substance appearing to be blood was
found on the driveway and on a section of the bat. In addi-
tion, a swab was taken from the end of the bat. The State’s
DNA expert testified that the blood found on the driveway
was a match to Lessley’s profile and that the probability that
the DNA belonged to another person was 1 in 1.67 quintillion.
Lessley could also not be excluded as a contributor to the DNA
found at the end of the bat, and the probability that the DNA
belonged to a person other than Lessley was 1 in 6.60 quadril-
lion. Finally, Lessley could not be excluded as a contributor to
the DNA from the blood found elsewhere on the bat, with the
probability of that DNA belonging to another person being 1 in
23.9 trillion.
   Initially, the DNA profile obtained was from an unidenti-
fied male, but a DNA database eventually identified the male
as Lessley. Based upon that identification, law enforcement
determined that on October 12, 2016, Lessley had purchased
a 2001 green Chevrolet Suburban from an Omaha dealer-
ship. That dealership had global positioning system (GPS)
records placing the Suburban less than a mile southeast of the
Goodwin-Pope residence at 4:18 a.m. on October 29. One of
the investigating officers testified that it had taken him about
2 minutes to drive from the residence to the location noted in
the GPS records.
   Lessley was arrested in January 2017. At the time of arrest,
Lessley was wearing a pair of Nike Shox shoes, which were
consistent with the shoeprint found on the laptop computer.
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                        STATE v. LESSLEY
                        Cite as 301 Neb. 734

Lessley’s Suburban was impounded at the time of his arrest.
The Suburban still had in-transit signs and no license plates.
It also had tinted windows, “barn-door” style rear doors, and
a louder-than-stock exhaust. A search of Lessley’s residence
recovered custom aftermarket rims.
   At the time of the shooting, Lessley and his girlfriend lived
a 3-minute drive northwest of the Goodwin-Pope residence.
Lessley’s girlfriend testified that Lessley returned from work
on October 28, 2016, between 11:45 p.m. and 12 a.m. She fell
asleep shortly after Lessley returned home and was awoken
before 5:30 a.m. by Lessley talking on the telephone. At this
time, Lessley’s girlfriend noticed a “hole” in the right side of
Lessley’s forehead that he did not have when he came home
from work. Lessley’s cell phone records show that he was
on the cell phone between 4:58 and 5:06 a.m. on October 29.
Lessley later told his girlfriend during a jailhouse telephone
call that she did not have to say anything at his trial.
   Lessley was charged with first degree murder for Pope’s
death, under alternative theories of premeditated murder or fel-
ony murder during the commission of a robbery or attempted
robbery. Additionally, Lessley was charged with first degree
assault for Goodwin’s injuries, possession of a deadly weapon
by a prohibited person, and two counts of use of a weapon to
commit a felony.
   On the first day of trial, the State amended the infor-
mation by interlineation to remove the premeditated murder
theory. Trial proceeded under the State’s felony murder theory.
The jury was instructed only on felony murder and was not
instructed as to any other theory of first degree murder, or as
to any other degree of murder. Lessley did not object to the
instructions as given and did not offer any proposed instruc-
tions. Lessley was found guilty on all five counts in less than
2 hours.
   The district court initially sentenced Lessley to consecu-
tive sentences of life imprisonment for felony murder, 20 to
20 years’ imprisonment for first degree assault, 3 to 3 years’
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                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                               STATE v. LESSLEY
                               Cite as 301 Neb. 734

imprisonment for possession of a weapon by a prohibited
person, and 5 to 5 years’ imprisonment on each use convic-
tion. Following a discussion with counsel for the State and for
Lessley, the court added 1 day to the maximum term of each
sentence (except the life sentence), so that the minimum and
maximum terms would not be the same.
   Lessley appeals.
                 ASSIGNMENTS OF ERROR
   On appeal, Lessley assigns that (1) there was insufficient
evidence to support his convictions and (2) the district court
erred in not instructing the jury on the lesser-included offense
of manslaughter.
                   STANDARD OF REVIEW
   [1] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.1
   [2] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision.2
                          ANALYSIS
Sufficiency of Evidence.
   In his first assignment of error, Lessley contends that the
evidence was insufficient to support his convictions. This con-
tention is without merit.

 1	
      State v. McCurdy, ante p. 343, 918 N.W.2d 292 (2018).
 2	
      State v. Wells, 300 Neb. 296, 912 N.W.2d 896 (2018).
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                 Nebraska Supreme Court A dvance Sheets
                         301 Nebraska R eports
                                   STATE v. LESSLEY
                                   Cite as 301 Neb. 734

   Lessley argues that “[t]he testimony provided by witnesses
was not consistent with the testimony of one another, nor
was it consistent with other evidence adduced at trial so as
to amount to competent evidence . . . .”3 Lessley concedes
that DNA profiles were obtained, but argues that it is not pos-
sible to “determine definitively whether or not the evidence
collected belongs to a particular individual. . . . [E]ven if
the DNA collected from the bat and driveway belonged to
[Lessley], this evidence does not connect [Lessley] to the
crimes” conclusively, because it is not possible to discern
how long the DNA has been present at a particular location.4
Finally, Lessley takes issue with multiple individual pieces
of evidence to support his conclusion that a jury should have
found reasonable doubt.
   But this is not our standard of review. This court does not
resolve conflicts in the evidence or reweigh the evidence, but
instead only reviews the evidence to determine whether the
evidence offered supported the convictions.
   In this case, Goodwin testified that an intruder pointed a
gun at him and told him to give him all his money and “shit.”
In addition, Goodwin testified that the intruder took a laptop
computer from the residence. This testimony supported the
robbery or attempted robbery allegations underlying the felony
murder charge.
   Goodwin further testified that he hit “something” with his
bat when he was struggling with the intruder. DNA evidence
found on the bat and on the driveway near where the strug-
gle occurred matched Lessley, with a probability of between
1 in 23.9 trillion and 1 in 1.67 quintillion (depending on
the evidence) that the DNA belonged to another individual.
Meanwhile, Lessley sustained an injury on his forehead during
the same timeframe as when Goodwin hit “something” with
the bat.

 3	
      Brief for appellant at 19.
 4	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                               STATE v. LESSLEY
                               Cite as 301 Neb. 734

   Also found in the driveway at the Goodwin-Pope residence
was a laptop computer with a shoeprint on it. The shoeprint
was consistent with a Nike Shox shoe, the same type of shoe
worn by Lessley at the time of his arrest. Lessley’s vehicle
generally matched the description of a vehicle observed leav-
ing the scene. The vehicle’s GPS records indicated that it was
within a 2-minute drive of the residence approximately 12 min-
utes prior to the shooting.
   The evidence plainly supported Lessley’s convictions. There
is no merit to Lessley’s first assignment of error.

Manslaughter Instruction.
   In his second assignment of error, Lessley contends that the
district court erred in not instructing the jury on the elements
of manslaughter. The State contends both that manslaughter
is not a lesser-included offense of felony murder, and thus no
instruction was required, and that in any case, there was insuf-
ficient evidence to support a manslaughter instruction.
   [3] Neb. Rev. Stat. § 29-2027 (Reissue 2016) provides in
part that “[i]n all trials for murder the jury before whom such
trial is had, if they find the prisoner guilty thereof, shall ascer-
tain in their verdict whether it is murder in the first or second
degree or manslaughter.” We have held that under § 29-2027,
a court is required to instruct the jury on all lesser degrees of
criminal homicide for which there is proper evidence before
the jury, whether requested to do so or not.5
   [4] But a court is not required to instruct a jury on lesser
degrees of homicide where the first degree murder charge
against the defendant is based upon a theory of felony murder.6
The distinction between felony murder and other degrees of
murder involves the element of intent. We have reasoned that
when a first degree murder charge is predicated on a theory of

 5	
      State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012).
 6	
      See, e.g., State v. Schroeder, 279 Neb. 199, 777 N.W.2d 793 (2010); State
      v. Masters, 246 Neb. 1018, 524 N.W.2d 342 (1994).
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                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                               STATE v. LESSLEY
                               Cite as 301 Neb. 734

premeditated murder, second degree murder, or voluntary man-
slaughter, the intent of the defendant is relevant, but that “[i]n
a felony murder case, the proof of a particular mental state
is not required as to the killing.”7 We therefore conclude that
under § 29-2027, where a defendant is charged solely under
a felony murder theory, a jury need not be instructed on the
lesser degrees of homicide.
   But in any event, there was insufficient evidence to sup-
port a manslaughter instruction. Lessley argues that there was
evidence in the record indicating there was a struggle at the
Goodwin-Pope home. As such, there was evidence adduced
that there had been a quarrel, and an instruction should have
been given.
   Lessley’s contentions are without merit. In State v. Smith,8
we concluded that evidence that the defendant and the victim
had been arguing was not enough to support a sudden quarrel
manslaughter instruction. We reasoned that even if there had
been an argument, there was no evidence about who started the
argument, what words were said or actions taken, or whether
there was evidence of provocation. We noted that “[i]n the
absence of some provocation, a defendant’s anger with the vic-
tim is not sufficient to establish the requisite heat of passion”9
for sudden quarrel manslaughter.
   Here, Lessley points us to some disarray at the scene,
including a stove seemingly out of place, refrigerator mag-
nets on the floor, a tipped-over laundry basket and fan, and
the bat used on the intruder inside the residence (rather than
outside, where Goodwin testified he swung at the intruder and
hit “something”). But there is no evidence in the record that
these items were in disarray because of these events. And there
is certainly no evidence of any provocation that might have

 7	
      State v. McDonald, 195 Neb. 625, 636-37, 240 N.W.2d 8, 15 (1976). Cf.
      Hopkins v. Reeves, 524 U.S. 88, 118 S. Ct. 1895, 141 L. Ed. 2d 76 (1998).
 8	
      State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
 9	
      Id. at 735, 806 N.W.2d at 395.
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                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                               STATE v. LESSLEY
                               Cite as 301 Neb. 734

provided any justification for the actions in this case. Lessley’s
counsel did ask Goodwin whether Pope and Lessley had been
having an affair, but Goodwin denied that allegation and coun-
sel offered no evidence to back up that assertion.
   There is no merit to Lessley’s second assignment of error.
Plain Error in Sentencing.
   Finally, the State contends that the district court committed
plain error with respect to the sentences imposed for Lessley’s
convictions for possession by a prohibited person and use of
a deadly weapon.
   [5-7] A sentence validly imposed takes effect from the time
it is pronounced.10 When a valid sentence has been put into
execution, the trial court cannot modify, amend, or revise it
in any way, either during or after the term or session of court
at which the sentence was imposed.11 Any attempt to do so
is of no effect, and the original sentence remains in force.12
The circumstances under which a judge may correct an inad-
vertent mispronouncement of a sentence are limited to those
instances in which it is clear that the defendant has not yet left
the courtroom; it is obvious that the judge, in correcting his
or her language, did not change in any manner the sentence
originally intended; and no written notation of the inadver-
tently mispronounced sentence was made in the records of
the court.13
   The district court originally sentenced Lessley to 3 to 3
years’ imprisonment for the possession conviction and to 5
to 5 years’ imprisonment for the use convictions. During the
same hearing, however, the district court attempted to modify
those sentences to 3 to 3 years’ imprisonment plus 1 day and
to 5 to 5 years’ imprisonment plus 1 day, respectively. This

10	
      State v. Schnabel, 260 Neb. 618, 618 N.W.2d 699 (2000).
11	
      Id.
12	
      Id.
13	
      Id.
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                        STATE v. LESSLEY
                        Cite as 301 Neb. 734

modification was done after discussion with the parties due to
the prosecuting attorney’s concern that the minimum and maxi-
mum terms of the sentences could not be the same.
   The State argues that the original sentences for the use
and possession convictions were valid and thus could not be
modified. But the State agrees that the original sentence for
first degree assault was invalid and thus was subject to modi-
fication. Use of a weapon to commit a felony is a Class IC
felony, punishable by 5 to 50 years’ imprisonment. Possession
of a deadly weapon by a prohibited person is a Class ID fel-
ony, punishable by 3 to 50 years’ imprisonment. First degree
assault is a Class II felony, punishable by 1 to 50 years’
imprisonment.
   The State bases its argument in the language of Neb. Rev.
Stat. § 29-2204 (Supp. 2017). As relevant, § 29-2204 provides:
         (1) Except when a term of life imprisonment is required
      by law, in imposing a sentence upon an offender for any
      class of felony other than a Class III, IIIA, or IV felony,
      the court shall fix the minimum and the maximum terms
      of the sentence to be served within the limits provided
      by law. The maximum term shall not be greater than the
      maximum limit provided by law, and:
         (a) The minimum term fixed by the court shall be any
      term of years less than the maximum term imposed by the
      court; or
         (b) The minimum term shall be the minimum limit
      provided by law.
   We turn first to the use convictions. Section 29-2204(1)
provides that the maximum term shall not be greater than the
maximum term provided by law, which, for a Class IC felony,
is 50 years. As for the minimum term, it shall be either any
term of years less than the maximum term imposed by the
court or the minimum term provided by law. The State argues
that the sentences of 5 to 5 years’ imprisonment initially
imposed on Lessley by the district court were proper, because
the maximum term imposed by the court (5 years) was not
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                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                               STATE v. LESSLEY
                               Cite as 301 Neb. 734

greater than the maximum term provided for by law (50 years)
and the minimum term was the minimum term provided for by
law (5 years) as set forth in § 29-2204(1)(b).
   The same reasoning goes for the possession conviction. The
maximum term for a Class ID felony is 50 years; the maximum
term imposed by the district court of 3 years was less than 50
years, and the minimum term of 3 years is the minimum pro-
vided for by law. As such, these sentences were valid, and the
attempt to modify them was unsuccessful.
   Because the district court’s intended sentences are appar-
ent from the record,14 we vacate the sentences imposed for
the use and possession convictions and remand the cause for
resentencing Lessley in conformity with the initial sentences
imposed by the district court of 5 to 5 years’ imprisonment for
each use conviction and 3 to 3 years’ imprisonment for the pos-
session conviction.
   We turn now to the sentence imposed on Lessley’s first
degree assault conviction. The State asserts that the sentence
initially imposed by the district court of 20 to 20 years’ impris-
onment was not valid.
   The maximum term provided for by law for a Class II felony
is 50 years’ imprisonment. The 20-year maximum imposed on
Lessley was less than the allowed maximum. But the minimum
imposed by the district court was also 20 years’ imprison-
ment. The minimum provided for by law is 1 year, so the
minimum term imposed on this conviction did not comply with
§ 29-2204(1)(b). Nor did it comply with § 29-2204(1)(a), which
provides that “[t]he minimum term fixed by the court shall be
any term of years less than the maximum term imposed by the
court[.]” As such, the State is correct that the initial sentence of
20 to 20 years’ imprisonment was invalid. Therefore, the sen-
tence was subject to modification, and we accordingly affirm
the modified sentence of 20 to 20 years’ imprisonment plus 1
day for first degree assault.

14	
      See State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).
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                   301 Nebraska R eports
                        STATE v. LESSLEY
                        Cite as 301 Neb. 734

                        CONCLUSION
   Lessley’s convictions are affirmed. Lessley’s sentences for
first degree felony murder and first degree assault are also
affirmed. But the sentences imposed for use of a weapon to
commit a felony and possession of a deadly weapon by a
prohibited person are vacated and new sentences are to be
imposed as set forth above. We remand this cause to the district
court for resentencing.
	A ffirmed in part, and in part vacated
	                       and remanded for resentencing.
