                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                       JACOB V. COTTON


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                  DAVID H. JACOB, APPELLANT,
                                               V.

                       ROSALYN COTTON, IN HER OFFICIAL CAPACITY, AND
                        THE NEBRASKA BOARD OF PAROLE, APPELLEES.



                           Filed February 28, 2017.   No. A-15-1037.


       Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.
Affirmed.
       David H. Jacob, pro se.
       Douglas J. Peterson, Attorney General, and James D. Smith for appellees.


       MOORE, Chief Judge, and INBODY and PIRTLE, Judges.
       INBODY, Judge.
                                       INTRODUCTION
        David H. Jacob, an inmate at the Nebraska State Penitentiary, appeals the Lancaster County
District Court’s order dismissing his petition for declaratory judgment. For the reasons set forth
below, we affirm.
                                   STATEMENT OF FACTS
        In 1986, Jacob was convicted of three counts of second degree murder and two counts of
use of a weapon to commit a felony. Jacob was sentenced to life terms for each of the second
degree murder convictions and sentenced to 6 to 20 years’ imprisonment for each of the two use
of a weapon to commit a felony convictions, with all five sentences ordered to run consecutively.
At the time of the commission of the offenses, the minimum sentence for second degree murder



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was 10 years’ imprisonment. See Neb. Rev. Stat. § 28-105 (Reissue 1971); Neb. Rev. Stat.
§ 28-304 (Reissue 1971).
        Jacob’s parole eligibility date was determined to be January 17, 2015, based upon an
October 2014 Nebraska Department of Correctional Services parole/release eligibility information
document. However, Jacob was informed through a Nebraska Board of Parole letter dated August
14, 2014, that the Board “reviewed [Jacob’s] case on Aug-07-2014 in [Jacob’s] presence” and as
a result of this review, the Board deferred Jacob’s case for review until August 2015. The letter
provided that the deferment was a result of the nature and circumstances of Jacob’s offenses and
indicated that “an early release would depreciate from the seriousness of [his] crime and promote
disrespect for the law.” Another reason for being deferred was Jacob’s “continued correctional
treatment, medical care, vocational training, or other training . . . [would] substantially enhance
[his] capacity to lead a law-abiding life when released at a later date.” In a letter dated September
8, 2014, Parole Board member Rex C. Richard informed Jacob that the Board’s “recommendation
was made based upon records reflecting that the current offense occurred after a lengthy
drug/alcohol spree” and stated that Jacob “self-admitted to the use of marijuana, hashish, opium,
mescaline, acid, speed, and cocaine.”
        In January 2015, Jacob filed a petition for declaratory judgment, seeking to “vindicate[]
his rights (1) not to be subjected to an ex post facto law, (2) to not have his liberty interests denied
without the due process of law, and (3) to prevent unconstitutional action by the Legislative or
Executive branches of State government by enforcing the Constitutional separation of powers.”
Rosalyn Cotton, in her official capacity as Parole Board chairman, and the Parole Board filed a
motion to dismiss the case. In March, the district court held a hearing on the motion to dismiss and
took the matter under advisement. In October, the district court granted the motion to dismiss,
determining that Jacob failed to state claims upon which relief could be granted. Jacob timely filed
his appeal to this court.
                                   ASSIGNMENTS OF ERROR
        Jacob’s assignments of error, consolidated and restated, are that the district court erred in
dismissing his petition because (1) the parole suitability standards in Neb. Rev. Stat. § 83-1,114
(Reissue 2014) are ex post facto violations; (2) the district court failed to find that the Parole
Board’s determination violated the separation of powers doctrine; (3) the district court failed to
conclude that the Parole Board violated his due process rights by denying him a parole hearing
and inappropriately relied on Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S.
1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), to determine that current parole procedures did not
violate due process.
                                     STANDARD OF REVIEW
        A district court’s grant of a motion to dismiss is reviewed de novo. Adams v. State, 293
Neb. 612, 879 N.W.2d 18 (2016). The constitutionality of a statute presents a question of law. Id.
When a declaratory judgment action presents a question of law, an appellate court has an obligation
to reach its conclusion independently of the conclusion reached by the trial court with regard to
that question. Id.




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                                             ANALYSIS
                                     EX POST FACTO VIOLATION
         Jacob contends the Parole Board applied a more severe minimum sentence of the statutory
20-year minimum sentence for second degree murder based on the 1995 statutes, as opposed to
the 10-year minimum sentence applicable at the time of the commission of the offense, causing an
ex post facto change of the parole suitability standards. Jacob also claims the district court failed
to consider whether the Parole Board considered the 1995 amendments to § 28-105 substantively
toward the parole review suitability under § 83-1,114.
         The U.S. Const. art. I, § 10 and Neb. Const. art. I, § 16 specify that no ex post facto law
may be passed. A law purporting to apply to events occurring before the law’s enactment,
disadvantaging a defendant by creating or enhancing penalties not in existence when the offense
was committed, is an ex post facto law and will not be endorsed by the courts. State v. Simnick,
279 Neb. 499, 779 N.W.2d 335 (2010). The prohibition of ex post facto laws ensures an individual
to have fair warning of applicable law and guards against vindictive legislative action. Shepard v.
Houston, 289 Neb. 399, 855 N.W.2d 559 (2014).
         The transcript from the district court proceedings indicate that the Parole Board reviewed
Jacob’s case while in his presence on August 7, 2014, and consequently deferred his case for
review until August 2015 because the nature and circumstances of his offenses “indicate[] that an
early release would depreciate from the seriousness of [his] crime and promote disrespect for the
law” and that his “continued correctional treatment, medical care, vocational training, or other
training . . . [would] substantially enhance [his] capacity to lead a law-abiding life when released
at a later date.” Similarly, in relevant part, Neb. Rev. Stat. § 83-1,114(1) (Reissue 2014) provides
that:
         Whenever the Board of Parole considers the release of a committed offender who is eligible
         for release on parole, it shall order his or her release unless it is of the opinion that his or
         her release should be deferred because:
                 ....
                 (b) His or her release would depreciate the seriousness of his or her crime or
         promote disrespect for law;
                 ....
                 (d) His or her continued correctional treatment, medical care, or vocational or other
         training in the facility will substantially enhance his or her capacity to lead a law-abiding
         life when released at a later date.

        The Parole Board’s reasoning for deferring the review makes no reference to the changes
in § 28-105 or the minimum sentence for second degree murder. Section 83-1,114(1) specifically
indicates that the Parole Board may defer, on its own opinion, an offender’s release on parole.
Despite the potential changes that may have occurred in § 28-105, there is no indication that the
Parole Board considered those changes. Rather, it used its statutorily permitted discretion. We
additionally note that there have been no statutory changes to § 83-1,114(1) since the commission
of Jacob’s offense other than the inclusion of “his or her” rather than “his.” See § 83-1,114(1)



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(Reissue 1971). As the Parole Board was within its statutory discretion to defer, we determine the
district court properly found that the ex post facto clause was not implicated and Jacob did not
state a claim upon which relief could be granted. Jacob’s first claim is without merit.
                                      SEPARATION OF POWERS
        Jacob claims the district court erred in not finding that the Parole Board’s application of
§ 83-1,114 “usurps the [j]udicial branch[‘s] power to determine the severity of a criminal
offender’s sentence, violating the constitutional separation of powers.” Brief of appellant at 13.
Jacob contends that by the Parole Board deferring or denying parole and extending the duration
and increasing the severity of punishment for the offender, the judicial branch decision is “remade”
without any appeal process.
        The conditions clause of the Nebraska Constitution confers on the Parole Board the power
to grant parole for any criminal offenses except treason and impeachment. Neb. Const. art. 4, § 13;
Adams v. State, 293 Neb. 612, 879 N.W.2d 18 (2016). The Nebraska Supreme Court has
determined that “a committed inmate must meet statutory requirements--i.e., ‘conditions’--before
being considered eligible for parole. But once eligible for parole, the Board alone has authority to
grant parole[.]” Adams v. State, 293 Neb. at 619, 879 N.W.2d at 23. As mentioned above,
§ 83-1,114(1) delineates the reasons that the Parole Board may defer, on its own opinion, an
offender’s release on parole.
        In this instance, the Parole Board was under its constitutional authority in deferring Jacob’s
release on parole. The Parole Board has the power to grant paroles, subject to conditions
established by the Legislature, and the ability to defer parole on its own opinions. The authority is
not granted to the judicial branch, but to the Parole Board alone. Therefore, we find Jacob’s second
claim to be meritless.
                                            DUE PROCESS
        Jacob argues the district court erred in finding that the current parole procedures did not
violate due process when it relied on Greenholtz v. Inmates of Nebraska Penal & Corr. Complex,
442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979). Jacob again contends that by deferring parole
to an eligible offender under § 81-1,114(1), the minimum sentence is extended, causing
constitutional consequences by increasing the duration and severity of the punishment. Jacob
claims that the Parole Board’s decision regarding parole suitability is arbitrary as it possesses the
same evidence as the sentencing court, causing “an eligible offender [the] equivalent to another
sentencing of the offender with a different result.” Brief of appellant at 18.
        It is long established that the granting of a parole is not a matter of right, but the exercise
of discretion and a matter of grace. Carr v. State, 152 Neb. 248, 40 N.W.2d 677 (1950). In
Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, supra, the United States Supreme
Court determined that Nebraska’s parole procedures afford the offender an opportunity to be heard
and, when parole is denied, informs the offender in what respects he falls short of qualifying for
parole, thereby satisfying due process requirements. Moreover, the U.S. Supreme Court
determined that “[w]hen the [Parole] Board defers parole after the initial review hearing, it does
so because examination of the inmate’s file and the personal interview satisfies [] that the inmate




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is not yet ready for conditional release.” Id., 442 U.S. at 14-15, 99 S. Ct. at 2107, 60 L. Ed. 2d 668.
“Since the decision is one that must be made largely on the basis of the inmate’s files, this
procedure adequately safeguards against serious risks of error and thus satisfies due process.” Id.
at 15, 99 S. Ct. at 2108, 60 L. Ed. 2d 668.
        In this instance, Jacob was provided adequate due process, as he was informed why his
review was deferred. Specifically, Jacob received a letter from the Parole Board dated August 14,
2014, informing him that based upon the August 7, 2014, review of his case while in his presence,
his case would be deferred for review by the Parole Board until August 2015. The letter specifically
stated that the deferment was a result of the nature and circumstances of Jacob’s offenses
“indicat[ing] that an early release would depreciate from the seriousness of [his] crime and promote
disrespect for the law” and that his “continued correctional treatment, medical care, vocational
training, or other training . . . [would] substantially enhance [his] capacity to lead a law-abiding
life when released at a later date.” Therefore, we determine that Jacob was not denied due process
and find his third claim to be without merit.
                                          CONCLUSION
        Having found that the parole suitability standards are not ex post facto violations, that the
Parole Board did not violate the separation of powers doctrine, and that the Parole Board did not
violate Jacob’s due process rights, we affirm the decision of the district court dismissing Jacob’s
complaint.
                                                                                         AFFIRMED.




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