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11/03/2017 09:13 AM CDT




                                                        - 53 -
                                  Nebraska Supreme Court A dvance Sheets
                                          298 Nebraska R eports
                                                   STATE v. STONE
                                                  Cite as 298 Neb. 53




                                        State of Nebraska, appellee, v.
                                         H arold L. Stone, appellant.
                                                   ___ N.W.2d ___

                                        Filed October 13, 2017.   No. S-16-941.

                1.	 Constitutional Law: Statutes: Appeal and Error. The constitutionality
                     of a statute presents a question of law, which an appellate court indepen-
                     dently reviews.
                2.	 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.
                3.	 Constitutional Law: Statutes: Pleas. As-applied challenges to the con-
                     stitutionality of a criminal statute are preserved by a defendant’s plea of
                     not guilty.
                4.	 Constitutional Law: Statutes: Waiver. The proper procedure for rais-
                     ing a facial constitutional challenge to a criminal statute is to file a
                     motion to quash, and all defects not raised in a motion to quash are
                     taken as waived by a defendant pleading the general issue.
                5.	 Constitutional Law: Statutes. Regardless of how the parties label a
                     constitutional challenge, a court will classify the challenge based upon
                     the nature of the alleged constitutional defect.
                 6.	 ____: ____. Generally, a facial challenge seeks to void the statute in all
                     contexts for all parties. In contrast, an as-applied challenge often con-
                     cedes the statute is constitutional in some of its applications, but con-
                     tends it is unconstitutional as applied to the particular facts of the case.
                 7.	 ____: ____. An as-applied challenge does not seek to void the statute
                     for all purposes, but seeks only to prevent the statute’s application to the
                     facts before the court.
                8.	 Sentences. Generally, it is within a trial court’s discretion to direct that
                     sentences imposed for separate crimes be served either concurrently
                     or consecutively. This is so, even when offenses carry a mandatory
                     minimum sentence, unless the statute requires that consecutive sentences
                     be imposed.
                                      - 54 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                                STATE v. STONE
                               Cite as 298 Neb. 53

 9.	 Sentences: Appeal and Error. Where a sentence imposed within the
     statutory limits is alleged on appeal to be excessive, the appellate court
     must determine whether the sentencing court abused its discretion in
     considering and applying the relevant factors as well as any applicable
     legal principles in determining the sentence to be imposed.
10.	 Sentences. When imposing a sentence, the sentencing court is to con-
     sider the defendant’s (1) age, (2) mentality, (3) education and experi-
     ence, (4) social and cultural background, (5) past criminal record or
     record of law-abiding conduct, and (6) motivation for the offense, as
     well as (7) the nature of the offense and (8) the amount of violence
     involved in the commission of the crime.

  Appeal from the District Court for Thayer County: Vicky L.
Johnson, Judge. Affirmed.

  Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellant.

  Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.

   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.

   Stacy, J.
   In this direct appeal of his criminal convictions and sen-
tences, Harold L. Stone seeks to challenge the constitutionality
of the mandatory minimum sentencing scheme for first degree
sexual assault of a child.1 He also challenges his sentences as
excessive. We conclude Stone did not preserve his constitu-
tional challenge for appellate review, and we find no merit to
his excessive-sentence claim. Accordingly, we affirm the judg-
ment and sentences of the district court.

 1	
      See Neb. Rev. Stat. § 28-319.01 (Reissue 2016).
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                                STATE v. STONE
                               Cite as 298 Neb. 53

                                    FACTS
                          Conviction
   In 2016, Stone was charged with five counts of first degree
sexual assault of a child,2 one count of third degree sex-
ual assault of a child,3 and one count of child abuse.4 The
amended information alleged Stone sexually penetrated H.W.
on five separate occasions in 2014 and 2015, at a time when
H.W. was under the age of 16 and Stone was over the age of
25. Stone entered pleas of not guilty, and the matter proceeded
to trial.
   The facts underlying Stone’s charges are not directly rel-
evant to his assignments of error, so we do not recount them
in detail. Generally, evidence at trial showed that Stone, a
58-year-old man, befriended, groomed, and sexually assaulted
H.W., a 15-year-old child with behavioral disabilities.
   The jury returned a verdict finding Stone guilty of four
counts of first degree sexual assault of a child and one count
of child abuse. Each sexual assault conviction was a Class IB
felony carrying a mandatory minimum prison sentence of 15
years5 and a maximum sentence of life imprisonment.6
                          Sentencing
   At the sentencing hearing, Stone argued the mandatory
minimum sentencing scheme of § 28-319.01 violated the Equal
Protection Clauses of the U.S. and Nebraska Constitutions
by treating him more harshly than younger offenders. Stone
asserted that if he had been 19 to 24 years old, rather than
58, at the time of his crimes, the sexual assaults would have
been classified as Class II felonies with a 1-year minimum

 2	
      § 28-319.01(1)(b).
 3	
      Neb. Rev. Stat. § 28-320.01(1) (Reissue 2016).
 4	
      Neb. Rev. Stat. § 28-707(1)(a) and (d) (Cum. Supp. 2014).
 5	
      See § 28-319.01(1)(b) and (2).
 6	
      See Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014).
                                     - 56 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                                STATE v. STONE
                               Cite as 298 Neb. 53

term,7 instead of Class IB felonies with a 15-year mandatory
minimum term.8 Stone contended there was no rational basis
to treat him more harshly based on his age, and he asked the
court to sentence him “as if the offense were a Class II felony.”
Stone ultimately conceded that “[a]ssuming the validity of
the sentencing scheme, the Court has no legal option but to
impose a sentence of not less than a mandatory 15-year sen-
tence on [the sexual assault convictions] and . . . then has to
consider whether any sentences imposed should be concurrent
or consecutive.” Stone asked the court to run his sentences
concurrently rather than consecutively, suggesting the manda-
tory minimum was already “harsher than it should be legally
or constitutionally.”
   The trial court rejected Stone’s constitutional arguments
and, on each of the four sexual assault convictions, sentenced
Stone to imprisonment for a mandatory minimum term of 15
years and a maximum term of 20 years. On the child abuse
conviction, Stone was sentenced to a term of 4 to 5 years’
imprisonment. The court ordered two of the sexual assault sen-
tences to be served consecutively and ordered the remaining
sentences to be served concurrently.
   Stone timely appealed, and he filed a notice of constitutional
question under Neb. Ct. R. App. P. § 2-109(E) (rev. 2014),
advising that “this appeal presents a question as to the consti-
tutionality of . . . §28-319.01(1)(b) [and] (2), as applied.” We
moved the case to our docket on our own motion.9

                ASSIGNMENTS OF ERROR
  Stone assigns (1) that the mandatory minimum term of
15 years’ imprisonment under § 28-319.01(2), based upon
age, has no rational basis and violates the Equal Protection

 7	
      See Neb. Rev. Stat. § 28-319 (Reissue 2016) and § 28-105.
 8	
      § 28-319.01(2).
 9	
      Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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               Nebraska Supreme Court A dvance Sheets
                       298 Nebraska R eports
                              STATE v. STONE
                             Cite as 298 Neb. 53

Clauses of the U.S. and Nebraska Constitutions and (2) that
the imposition of consecutive mandatory minimum sentences
was unreasonable and excessive.
                  STANDARD OF REVIEW
   [1] The constitutionality of a statute presents a question of
law, which we independently review.10
   [2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.11
                          ANALYSIS
                Facial or As-A pplied Challenge
   As a threshold matter, we consider whether Stone has prop-
erly presented his constitutional challenge to § 28-319.01. The
proper procedure for raising and preserving a constitutional
challenge differs depending on whether it is a facial or an
as-applied challenge.12
   [3,4] As-applied challenges to the constitutionality of a
criminal statute are preserved by a defendant’s plea of not
guilty.13 But the proper procedure for raising a facial consti-
tutional challenge to a criminal statute is to file a motion to
quash, and all defects not raised in a motion to quash are taken
as waived by a defendant pleading the general issue.14
   Stone did not file a motion to quash in this case and con-
cedes he has waived any facial challenge to § 28-319.01.
Instead, he characterizes his equal protection claim as an
“as-applied” constitutional challenge to § 28-319.01. The State
takes issue with this characterization and argues that Stone is

10	
      J.M. v. Hobbs, 288 Neb. 546, 849 N.W.2d 480 (2014).
11	
      State v. Policky, 285 Neb. 612, 828 N.W.2d 163 (2013).
12	
      See State v. Harris, 284 Neb. 214, 817 N.W.2d 258 (2012).
13	
      State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016); Harris, supra
      note 12.
14	
      Harris, supra note 12.
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                 Nebraska Supreme Court A dvance Sheets
                         298 Nebraska R eports
                                  STATE v. STONE
                                 Cite as 298 Neb. 53

actually mounting a facial challenge to the constitutionality of
§ 28-319.01.
   [5-7] Regardless of how the parties label a constitutional
challenge, a court will classify the challenge based upon the
nature of the alleged constitutional defect.15 We have described
a facial challenge as a “‘challenge to a statute, asserting that
no valid application of the statute exists because it is unconsti-
tutional on its face.’”16 Generally, a facial challenge seeks to
void the statute in all contexts for all parties.17 In contrast, an
as-applied challenge often concedes the statute is constitutional
in some of its applications, but contends it is unconstitutional
as applied to the particular facts of the case.18 An as-applied
challenge does not seek to void the statute for all purposes,
but seeks only to prevent the statute’s application to the facts
before the court.19
   After reviewing the record and the parties’ arguments, we
conclude that although Stone attempts to frame it otherwise,
he is asserting a facial challenge to the statutory classification
scheme under § 28-319.01. Stone argues there is no rational
basis for a “statutory classification which imposes a substan-
tially harsher sentence [for sexual assault of a child] when
the actor is 25 years of age or older than when the actor is
19 years of age or older.”20 In making this argument, Stone
does not premise the alleged constitutional violation on any

15	
      See, e.g., State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005).
16	
      Id. at 905, 697 N.W.2d at 667, quoting State v. Hynek, 263 Neb. 310, 640
      N.W.2d 1 (2002).
17	
      See 16 C.J.S. Constitutional Law § 243 (2015). See, also, Harris, supra
      note 12, 284 Neb. at 221, 817 N.W.2d at 268 (“a plaintiff can only succeed
      in a facial challenge by establishing that no set of circumstances exists
      under which the act would be valid, i.e., that the law is unconstitutional in
      all of its applications”).
18	
      16 C.J.S., supra note 17.
19	
      Id.
20	
      Brief for appellant at 7.
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               Nebraska Supreme Court A dvance Sheets
                       298 Nebraska R eports
                               STATE v. STONE
                              Cite as 298 Neb. 53

facts specific to his case or circumstances. Instead, the nature
of the constitutional defect he raises—that the age classifica-
tion in § 28-319.01 is arbitrary and has no rational basis—is
one that every offender 25 years of age or older could raise.
His challenge seeks to void the statutory age classification
in all contexts for all parties and is properly classified as a
facial challenge.
   Because Stone has not preserved this facial challenge
for appellate review, we do not reach his first assignment
of error.

                     Consecutive Sentences
   Stone argues the sentencing court abused its discretion by
ordering two of the mandatory minimum sentences to run con-
secutively. We find no abuse of discretion on this record.
   [8] Generally, it is within a trial court’s discretion to direct
that sentences imposed for separate crimes be served either
concurrently or consecutively.21 This is so, even when offenses
carry a mandatory minimum sentence,22 unless the statute
requires that consecutive sentences be imposed.23
   Section 28-319.01(2) requires a mandatory minimum
prison sentence of 15 years24 and classifies Stone’s crime as a
Class IB felony, which carries a maximum term of life impris-
onment.25 The jury convicted Stone of four separate counts of
first degree sexual assault of a child. The trial court imposed

21	
      State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014); Policky, supra
      note 11.
22	
      See, State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016); State v.
      Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
23	
      Berney, supra note 21.
24	
      See State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015) (specific
      15-year mandatory minimum in § 28-319.01(2) for first degree sexual
      assault of child controls over general 20-year minimum for Class IB
      felonies in § 28-105).
25	
      § 28-105.
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                                STATE v. STONE
                               Cite as 298 Neb. 53

a sentence of 15 to 20 years’ imprisonment on each of the
four convictions under § 28-319.01(2) and ordered two of the
sentences to be served consecutively. All other sentences were
ordered to be served concurrently.
   [9,10] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion
in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence
to be imposed.26 When imposing a sentence, the sentencing
court is to consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the
offense and (8) the amount of violence involved in the com-
mission of the crime.27
   Here, the sentences imposed were well within the statutory
range and the record shows the court considered and applied
all the necessary sentencing factors. Stone committed serious
felonies that caused lasting harm. He groomed his child victim
and befriended her family to increase his access to the victim.
He was found to be in the moderate-high risk range on a sex
offender specific assessment. We find no abuse of discretion in
ordering consecutive mandatory minimum sentences.
                          CONCLUSION
   For the foregoing reasons, the judgment and sentences of
the district court are affirmed.
                                                A ffirmed.

26	
      State v. Garza, 295 Neb. 434, 888 N.W.2d 526 (2016).
27	
      State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).
