Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/30/2016 08:09 AM CDT




                                                         - 902 -
                                  Nebraska Supreme Court A dvance Sheets
                                          294 Nebraska R eports
                                                 STATE v. BENAVIDES
                                                  Cite as 294 Neb. 902




                                        State of Nebraska, appellee, v.
                                          Eric Benavides, appellant.
                                                     ___ N.W.2d ___

                                        Filed September 30, 2016.   No. S-15-1053.

                 1.	 Statutes. Statutory interpretation presents a question of law.
                2.	 Appeal and Error. An appellate court independently reviews questions
                     of law decided by a lower court.
                3.	 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.
                4.	 Criminal Law: Statutes: Legislature: Time. Unless an exception
                     applies, where a criminal statute is amended by mitigating the punish-
                     ment, after the commission of a prohibited act but before final judg-
                     ment, the punishment is that provided by the amendatory act unless the
                     Legislature has specifically provided otherwise.
                5.	 Statutes: Legislature: Intent: Appeal and Error. A court gives statu-
                     tory language its plain and ordinary meaning and will not look beyond
                     the statute to determine legislative intent when the words are plain,
                     direct, and unambiguous.
                6.	 Statutes: Legislature: Intent. A court gives effect to the purpose and
                     intent of the Legislature as ascertained from the entire language of a
                     statute considered in its plain, ordinary, and popular sense.
                7.	 ____: ____: ____. Components of a series or collection of statutes
                     pertaining to a certain subject matter are in pari materia and should
                     be conjunctively considered and construed to determine the intent of
                     the Legislature, so that different provisions are consistent, harmonious,
                     and sensible.
                8.	 Sentences: Statutes: Time: Probation and Parole. The nonretroac-
                     tive provision under Neb. Rev. Stat. § 28-105(7) (Supp. 2015) broadly
                     applies to penalty changes created by 2015 Neb. Laws, L.B. 605, which
                     changes include changes to a penalty of probation.
                                      - 903 -
               Nebraska Supreme Court A dvance Sheets
                       294 Nebraska R eports
                             STATE v. BENAVIDES
                              Cite as 294 Neb. 902

 9.	 Sentences: Statutes: Presumptions: Probation and Parole. The pre-
     sumption under Neb. Rev. Stat. § 29-2204.02 (Supp. 2015) in favor of
     probation for Class IV felony convictions unless an exception applies is
     a penalty change.
10.	 Sentences: Statutes: Legislature: Intent: Probation and Parole. The
     Legislature did not intend for the penalty changes under Neb. Rev.
     Stat. § 29-2204.02 (Supp. 2015) in favor of a sentence of probation for
     Class IV felony convictions to be retroactive.
11.	 Sentences. In imposing a sentence, a sentencing court is not limited to
     any mathematically applied set of factors. The appropriateness of a sen-
     tence is necessarily a subjective judgment and includes the sentencing
     judge’s observation of the defendant’s demeanor and attitude and all the
     facts surrounding the defendant’s life.
12.	 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.

  Appeal from the District Court for Madison County: James
G. Kube, Judge. Affirmed.
  Chelsey R. Hartner, Chief Deputy Madison County Public
Defender, for appellant.
   Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
      Funke, J.
                    NATURE OF CASE
   Eric Benavides appeals from the district court’s order sen-
tencing him for a Class IV felony conviction of domes-
tic assault of a pregnant female. The assault occurred in
June 2015. In August 2015, the Legislature’s enactment of
L.B. 605 became effective,1 which bill changed many sen-
tencing provisions. One of L.B. 605’s provisions requires

 1	
      See 2015 Neb. Laws, L.B. 605.
                                     - 904 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                              STATE v. BENAVIDES
                               Cite as 294 Neb. 902

courts to “impose a sentence of probation” for Class IV
felony convictions unless an exception applies and the court
states its reasoning; this requirement is codified as Neb. Rev.
Stat. § 29-2204.02(2) (Supp. 2015).2 In November 2015, the
court sentenced Benavides to an indeterminate term of 12 to
18 months’ incarceration. Benavides contends that the court
erred in sentencing him to a term of incarceration, contrary
to the requirements of § 29-2204.02 and general sentenc-
ing guidelines.
   We granted the State’s petition to bypass the Court of
Appeals because Benavides’ appeal presented an issue of first
impression: whether the Legislature’s sentencing changes for
Class IV felonies are retroactive. We conclude that the issue is
controlled by our recent decision in State v. Aguallo3 and that
the changes are not retroactive. We affirm.

                        BACKGROUND
                 R elevant Sentencing Changes
                        Under L.B. 605
   Section 29-2204.02 is a new statute created by L.B. 605.4
In relevant part, § 29-2204.02 requires a sentence of proba-
tion for a defendant convicted of a Class IV felony unless
an exception applies and the court states its reasoning on
the record:
         (2) If the criminal offense is a Class IV felony, the
      court shall impose a sentence of probation unless:
         (a) The defendant is concurrently or consecutively sen-
      tenced to imprisonment for any felony other than another
      Class IV felony;
         (b) The defendant has been deemed a habitual criminal
      pursuant to section 29-2221; or

 2	
      See id., § 61.
 3	
      State v. Aguallo, ante p. 177, 881 N.W.2d 918 (2016).
 4	
      See L.B. 605, § 61.
                                  - 905 -
               Nebraska Supreme Court A dvance Sheets
                       294 Nebraska R eports
                           STATE v. BENAVIDES
                            Cite as 294 Neb. 902

         (c) There are substantial and compelling reasons why
      the defendant cannot effectively and safely be supervised
      in the community . . . .
         (3) If a sentence of probation is not imposed, the court
      shall state its reasoning on the record, advise the defend­
      ant of his or her right to appeal the sentence, and impose
      a sentence as provided in subsection (1) of this section.
   But L.B. 605 also created a new subsection in Neb. Rev.
Stat. § 28-105 (Supp. 2015): “(7) The changes made to the
penalties for Class III, IIIA, and IV felonies by Laws 2015,
LB605, do not apply to any offense committed prior to August
30, 2015, as provided in section 28-116.”5
   The newly created Neb. Rev. Stat. § 28-116 (Supp. 2015),
in turn, clarifies that if a defendant committed any element of
an offense before August 30, 2015, the penalty changes under
L.B. 605 shall not be retroactive:
         The changes made to the sections listed in this section
      by Laws 2015, LB 605, shall not apply to any offense
      committed prior to August 30, 2015. Any such offense
      shall be construed and punished according to the provi-
      sions of law existing at the time the offense was com-
      mitted. For purposes of this section, an offense shall
      be deemed to have been committed prior to August 30,
      2015, if any element of the offense occurred prior to such
      date. The following sections are subject to this provi-
      sion . . . .
Section 28-116 lists more than 60 statutes that are explicitly
subject to the nonretroactive provision.
                     Procedural History
   The State charged Benavides for a Class IV felony domes-
tic assault. The felony charge rested on his knowledge of
his girlfriend’s pregnancy when he assaulted her.6 The State

 5	
      L.B. 605, § 6.
 6	
      See § 28-105 (Cum. Supp. 2014) and Neb. Rev. Stat. §§ 28-115 and
      28-323(4) (Cum. Supp. 2014).
                                      - 906 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                              STATE v. BENAVIDES
                               Cite as 294 Neb. 902

dismissed two other charges under a plea agreement, and
Benavides pleaded guilty to the felony assault charge.
   At the sentencing hearing, Benavides argued that he was
a good candidate for probation. Alternatively, he argued that
even though he committed the assault before L.B. 605 took
effect, the court should retroactively apply the penalty changes
related to a sentence of probation. From the bench, the court
disagreed with his statutory interpretation and determined that
the changes were not retroactive.

                          Court’s Order
   In its written order, the court stated that Benavides was not
a good candidate for probation and that a sentence of less than
incarceration would depreciate the seriousness of his conduct.
It found that Benavides needed correctional treatment and
would present a substantial risk of reoffense on probation.
Accordingly, it sentenced him to an indeterminate term of 12
to 18 months’ incarceration, with credit for the 33 days he had
already served.

                ASSIGNMENTS OF ERROR
   Benavides assigns that the court erred in failing to apply
§ 29-2204.02 in sentencing him and in sentencing him to a
term of incarceration instead of probation.

                   STANDARD OF REVIEW
   [1,2] Statutory interpretation presents a question of law.7 An
appellate court independently reviews questions of law decided
by a lower court.8
   [3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.9

 7	
      See Aguallo, supra note 3.
 8	
      In re Interest of Alan L., ante p. 261, 882 N.W.2d 682 (2016).
 9	
      State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016).
                                   - 907 -
               Nebraska Supreme Court A dvance Sheets
                       294 Nebraska R eports
                            STATE v. BENAVIDES
                             Cite as 294 Neb. 902

                           ANALYSIS
                 Court Was Not R equired to
                   Give R etroactive Effect
                         to § 29-2204.02
   [4] Benavides contends that under the sentencing doctrine
set out in State v. Randolph,10 the court erred in failing to
apply the new penalty provisions under § 29-2204.02 for
Class IV felonies. Unless an exception applies,11 Randolph
holds that “where a criminal statute is amended by mitigat-
ing the punishment, after the commission of a prohibited act
but before final judgment, the punishment is that provided by
the amendatory act unless the Legislature has specifically pro-
vided otherwise.”12 Benavides argues that the nonretroactive
language in § 28-105(7) (Supp. 2015) is limited to the “ranges
of imprisonment and post release supervision” for Class III,
IIIA, and IV felonies that were committed before August 30,
2015.13 He argues that § 28-105(7) has no application to proba-
tion statutes amended by L.B. 605. Because the nonretroactive
provision is absent from § 29-2204.02, he argues that it applies
to crimes committed before its effective date. The State con-
tends that Randolph does not apply because in § 28-105(7),
the Legislature clearly stated that the sentencing changes under
L.B. 605 are not retroactive.
   [5-7] A court gives statutory language its plain and ordi-
nary meaning and will not look beyond the statute to deter-
mine legislative intent when the words are plain, direct, and
unambiguous.14 We give effect to the purpose and intent of
the Legislature as ascertained from the entire language of the

10	
      See State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971).
11	
      See State v. Duncan, 291 Neb. 1003, 870 N.W.2d 422 (2015).
12	
      Randolph, supra note 10, 186 Neb. at 302, 183 N.W.2d at 228. Accord
      State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999) (citing cases).
13	
      Reply brief for appellant at 5.
14	
      State v. Goynes, 293 Neb. 288, 876 N.W.2d 912 (2016).
                               - 908 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                        STATE v. BENAVIDES
                         Cite as 294 Neb. 902

statute considered in its plain, ordinary, and popular sense.15
Components of a series or collection of statutes pertaining
to a certain subject matter are in pari materia and should be
conjunctively considered and construed to determine the intent
of the Legislature, so that different provisions are consistent,
harmonious, and sensible.16
   Benavides’ argument is contrary to the plain language of
§ 28-105(7), which states, “The changes made to the penal-
ties for Class III, IIIA, and IV felonies by Laws 2015, LB605,
do not apply to any offense committed prior to August 30,
2015, as provided in section 28-116.” (Emphasis supplied.)
   [8,9] A sentence of probation is one possible penalty for
a criminal conviction (unless a defendant is ineligible for
probation).17 The nonretroactive provision under § 28-105(7)
broadly applies to penalty changes created by L.B. 605 for
Class III, IIIA, and IV felonies, which changes include changes
to a penalty of probation. The changes imposed by § 29-2204.02
curtail a court’s sentencing discretion by requiring a court to
impose a sentence of probation for Class IV felony convictions
unless an exception applies. Because the Legislature clearly
intended to affect the type of penalty a court could impose,
we conclude that the presumption in favor of probation is a
penalty change. Notably, Benavides specifically argues that
§ 29-2204.02 directs a court how to sentence a defendant for a
Class IV felony conviction. We conclude that there is no merit
to his contention that § 28-105(7) does not apply to the penalty
change in favor of probation.
   Moreover, we recently decided a similar issue in Aguallo.18
There, the defendant pleaded guilty to third degree sexual

15
    See id.
16	
    See Aguallo, supra note 3.
17	
    See, § 28-105(4) (Cum. Supp. 2014); § 29-2204.02; Neb. Rev. Stat.
    § 29-2262 (Cum. Supp. 2014).
18	
    See Aguallo, supra note 3.
                                       - 909 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                              STATE v. BENAVIDES
                               Cite as 294 Neb. 902

assault of a child, a Class IIIA felony. The defendant com-
mitted the offense before August 30, 2015, and the court sen-
tenced him after the effective date. The maximum penalty of
imprisonment was 5 years before L.B. 605 and 3 years after-
ward. The trial court concluded that the reduced penalty was
not retroactive.
   On appeal, we rejected the defendant’s argument that the
reduced penalty for a Class IIIA felony conviction was retroac-
tive. We recognized that in setting out a nonretroactive restric-
tion in § 28-105(7), the Legislature referred to § 28-116. As
explained, § 28-116 clarifies that the nonretroactive restriction
for offenses committed before August 30, 2015, applies if any
element of the offense was committed before that date and lists
statutes that are subject to the restriction. But we rejected the
defendant’s argument that because the statute proscribing his
conduct was not listed in § 28-116, the sentencing change for
his Class IIIA offense was retroactive. We concluded that the
offense statute was not listed in § 28-116 because L.B. 605 did
not substantively change the offense:
      L.B. 605 did not make any changes to the classification
      or the elements of that crime. L.B. 605 did, however,
      make changes to the penalties for all Class IIIA felo-
      nies, and § 28-320.01 is a Class IIIA felony. It is clear
      from the plain language of §§ 28-105(7) and 28-116 that
      the Legislature did not intend the penalty reductions to
      Class IIIA felonies to apply retroactively to offenses com-
      mitted prior to the effective date of L.B. 605. It is thus
      immaterial that the offense [the defendant] committed is
      not among those listed in § 28-116, and his argument to
      the contrary is without merit.19
   [10] Although Benavides’ argument is somewhat differ-
ent, we reasoned in Aguallo that nonretroactive provisions
in §§ 28-105(7) and 28-116 applied to the penalty changes
for Class IIIA felonies regardless of whether the Class IIIA

19	
      Id. at 183, 881 N.W.2d at 923.
                                      - 910 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                              STATE v. BENAVIDES
                               Cite as 294 Neb. 902

offense was one of the statutes listed in § 28-116. The same
provisions prohibit retroactive application of the changed
penalties for Class IV felonies if any element of the offense
was committed before August 30, 2015. So our reasoning in
Aguallo applies here. We conclude that the Legislature did not
intend for the penalty changes under § 29-2204.02 in favor
of a sentence of probation for Class IV felony convictions to
be retroactive. Accordingly, the court did not err in failing to
consider them.
                   Court Did Not A buse Its
                    Sentencing Discretion
   Benavides contends that the court abused its discretion
under Neb. Rev. Stat. § 29-2260(2) (Supp. 2015) in impos-
ing a sentence of incarceration instead of probation. Section
29-2260(2) sets out the Legislature’s sentencing guidelines
for misdemeanor and felony offenses that do not require a
mandatory or mandatory minimum sentence of imprisonment.
Benavides argues that (1) he was only 19 years old when he
committed this crime, (2) he had a limited criminal history, (3)
the fetus was not harmed, and (4) he was working to support
his family and to address his addiction issues. He also relies
on § 29-2204.02’s requirement that a court impose a sentence
of probation for a Class IV felony unless there are compelling
factors weighing against probation. As explained, however,
§ 29-2204.02 did not apply to the court’s sentencing discre-
tion here.
   [11,12] In imposing a sentence, a sentencing court is not
limited to any mathematically applied set of factors.20 The
appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts surround-
ing the defendant’s life.21 We will not disturb a sentence

20
      State v. Sikes, 286 Neb. 38, 834 N.W.2d 609 (2013).
21	
       Id.
                              - 911 -
            Nebraska Supreme Court A dvance Sheets
                    294 Nebraska R eports
                       STATE v. BENAVIDES
                        Cite as 294 Neb. 902

imposed within the statutory limits absent an abuse of discre-
tion by the trial court.22
   The State correctly argues that because Benavides’ offense
occurred before the effective date of L.B. 605, § 28-105 (Cum.
Supp. 2014) governed the statutory limits for the court’s sen-
tence. For Class IV felonies under the pre-2015 version of
§ 28-105, a court could order a term of imprisonment of up to
5 years, a $5,000 fine, or both. The State argues that the court
did not abuse its discretion because Benavides had previously
failed at probation, had some criminal history, and committed
a violent offense.
   At the sentencing hearing, the court stated that it was glad
to hear Benavides was seeking addiction treatment and trying
to be involved in his child’s life. It encouraged him to continue
to be supportive of his child.
   However, the factual basis indicated that Benavides
assaulted his girlfriend by throwing her on a bed and holding
her down with his hand over her face, all of which caused
her pain. According to his girlfriend’s written statement, she
was almost 6 months pregnant when the assault occurred.
Because his offense involved assaultive behavior toward a
pregnant woman that put both her and the fetus at risk, the
court believed that a sentence of probation would send the
wrong message, depreciate the seriousness of his offense, and
promote disrespect for the law.
   We conclude that there is no merit to Benavides’ contention
that the court abused its sentencing discretion.
                         CONCLUSION
   We conclude that the court was not required to retroactively
apply the sentencing requirements under § 29-2204.02. Nor
did it abuse its discretion in imposing a sentence of incarcera-
tion instead of probation.
                                                    A ffirmed.

22	
      Id.
