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11/05/2019 09:06 AM CST




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                                Nebraska Court of A ppeals A dvance Sheets
                                     27 Nebraska A ppellate R eports
                                                  STATE v. NELSON
                                               Cite as 27 Neb. App. 748




                                        State of Nebraska, appellee,
                                           v. William J. Nelson,
                                                 appellant.
                                                    ___ N.W.2d ___

                                        Filed October 29, 2019.   No. A-18-998.

                 1. Sentences: Appeal and Error. Appellate courts do not disturb sentences
                    imposed within the statutory limits absent an abuse of discretion by the
                    trial court.
                 2. Statutes: Judgments: Appeal and Error. Statutory interpretation pre­
                    sents a question of law. When reviewing questions of law, an appellate
                    court has an obligation to resolve the questions independently of the
                    conclusion reached by the trial court.
                 3. 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.
                 4. 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.
                 5. Sentences: Judgments. The appropriateness of a sentence is necessarily
                    a subjective judgment and includes the sentencing judge’s observations
                    of the defendant’s demeanor and attitude and all of the facts and circum-
                    stances surrounding the defendant’s life.
                 6. Sentences. It is the minimum portion of an indeterminate sentence
                    which measures its severity.
                 7. ____. In the event of a discrepancy between an oral pronouncement
                    of sentence and the written order of the sentence, the oral pronounce-
                    ment controls.
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                27 Nebraska A ppellate R eports
                             STATE v. NELSON
                          Cite as 27 Neb. App. 748

 8. Courts: Sentences: Appeal and Error. Where a portion of the court’s
    oral pronouncement is invalid and another portion is valid, an appellate
    court has the authority to modify or revise the sentence by removing the
    invalid or erroneous portion.

  Appeal from the District Court for Madison County: James
G. Kube, Judge. Affirmed.
  Chelsey R. Hartner, Chief Deputy Madison County Public
Defender, and Barbara J. Masilko for appellant.
  Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
  R iedmann, A rterburn, and Welch, Judges.
  Welch, Judge.
                      I. INTRODUCTION
   William J. Nelson appeals his plea-based conviction for
first degree sexual assault and the sentence imposed thereon.
He contends that the sentence imposed was excessive and that
the district court erred regarding the determination that his
offense was an “aggravated offense” pursuant to Nebraska’s
Sex Offender Registration Act (SORA). Specifically, he claims
that the aggravated offense determination must be made by a
jury regarding community supervision and that the evidence
did not support the district court’s determination the offense
constituted an aggravated offense relating to lifetime registra-
tion. We find that the sentence imposed was not excessive,
and we affirm the court’s written sentencing order which was
different than the court’s oral pronouncement of Nelson’s sen-
tence. Accordingly, we affirm.
                 II. STATEMENT OF FACTS
   In June 2018, the victim told a law enforcement officer that
in March 2016, several months before she turned 16 years
of age, she had started an ongoing sexual relationship with
Nelson, who was her half-sister’s then-husband. The victim
stated that she tried to end the relationship many times but
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                         STATE v. NELSON
                      Cite as 27 Neb. App. 748

that when she did so, Nelson always threatened to kill him-
self. Nelson admitted to law enforcement that he had a sexual
relationship with the victim from the time she was 15 years
of age until as recently as 2 months prior to the law enforce-
ment interview.
   Pursuant to a plea agreement, Nelson pled guilty to first
degree sexual assault. See Neb. Rev. Stat. § 28-319 (Reissue
2016). As part of the plea agreement, the State agreed not to
bring further charges. The State provided a factual basis set-
ting forth that between the dates of July 17, 2015, and July 16,
2016, Nelson engaged in sexual intercourse with the victim
starting when she was 15 years of age and he was over 19
years of age.
   At the sentencing hearing, the court inquired into Nelson’s
life and into his relationship with the victim. Nelson told the
court he was divorced and had a 6-year-old daughter who
lived with her mother, he suffered from depression, and he
thought about killing himself rather than living as a con-
victed sex offender. After repeated questioning on the subject,
Nelson admitted that during the time of his sexual relationship
with the victim, his suicidal ideation was largely to manipu-
late the victim to keep their relationship secret. At the hear-
ing, the victim and her mother read prepared statements. The
victim stated that she and Nelson confided in each other, she
thought they loved each other, and they did not care about the
consequences of their conduct. She stated that she soon real-
ized she was “blinded by love and manipulation.” The victim
stated that Nelson cheated on her, lied to her, and secretly
took pictures of her in “vulnerable situations” in order to
blackmail her into not telling her family about their relation-
ship. The county attorney later clarified that the victim was
mostly nude in these pictures. The victim stated that Nelson
“made [her] feel so worthless” that she considered suicide.
The victim’s mother said that Nelson made advances on the
victim’s friends and got their telephone numbers to make the
victim jealous.
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                         STATE v. NELSON
                      Cite as 27 Neb. App. 748

   The court stated that Nelson’s decision to take responsibil-
ity was not remarkable, because the evidence against him was
so clear. The court noted the lengths that Nelson had gone to
in order to keep his relationship with the victim a secret and
opined that Nelson seemed to have had a total disregard for
the consequences to the victim. The court sentenced Nelson to
20 to 25 years’ imprisonment with credit for 98 days served.
The court further found by oral pronouncements that pursu-
ant to SORA, the offense was an aggravated offense requir-
ing lifetime community supervision and lifetime sex offender
registration; however, the court’s subsequent September 21,
2018, journal entry setting forth Nelson’s sentence did not
make reference to either lifetime community supervision or
lifetime sex offender registration. Nelson timely appeals and is
represented on appeal by the same counsel as represented him
in the district court.

                III. ASSIGNMENTS OF ERROR
   Nelson’s assignments of error, consolidated and restated, are
that the district court erred (1) in imposing an excessive sen-
tence and (2) in determining that his offense was an aggravated
offense pursuant to SORA for purposes of the lifetime sex
offender registration requirement and in making the aggravated
offense determination for the purposes of the lifetime commu-
nity supervision requirement when said determination must be
made by a jury.

                 IV. STANDARD OF REVIEW
   [1] Appellate courts do not disturb sentences imposed within
the statutory limits absent an abuse of discretion by the trial
court. See State v. Meduna, 18 Neb. App. 818, 794 N.W.2d
160 (2011).
   [2] Statutory interpretation presents a question of law. When
reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusion
reached by the trial court. State v. Hamilton, 277 Neb. 593,
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                         STATE v. NELSON
                      Cite as 27 Neb. App. 748

763 N.W.2d 731 (2009); State v. Kresha, 25 Neb. App. 543,
909 N.W.2d 93 (2018).
                         V. ANALYSIS
                     1. Excessive Sentence
   Nelson first contends that the sentence imposed was exces-
sive. First degree sexual assault is a Class II felony punishable
by 1 to 50 years’ imprisonment. See, Neb. Rev. Stat. § 28-105
(Reissue 2016); § 28-319 (first degree sexual assault). Nelson
was sentenced to 20 to 25 years’ imprisonment which is within
the statutory sentencing range.
   [3-5] 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. State v. Wofford, 298 Neb. 412, 904 N.W.2d 649
(2017). 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) moti-
vation 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. Id. The appropriateness of a sentence is necessar-
ily a subjective judgment and includes the sentencing judge’s
observations of the defendant’s demeanor and attitude and all
of the facts and circumstances surrounding the defendant’s
life. Id.
   At the time the presentence report was prepared, Nelson
was 26 years of age. During the presentence report interview,
Nelson reported that his relationship with the victim began
fairly innocently, but in March 2016, he and the victim began
having sexual intercourse. Nelson reported that in 2018, he
threatened to commit suicide if the victim told her mother
about their relationship. Nelson also expressed “intense
romantic feelings” for the victim and did not recognize the
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                         STATE v. NELSON
                      Cite as 27 Neb. App. 748

harm their relationship had caused the victim. Nelson stated
that he deserved his current situation “‘because I did it.
There’s no point in fighting something you did. It’s the legal
requirement they have to do for what I did. It was consensual.
I understand because of [the victim’s] age, it is what it is. I
deserve to be in here. I know that.’” He also noted, “‘Last I
heard from [the victim], she loved me and I loved her. I was
heartbroken when I got in here. Now I’m frustrated. All I want
to know is what happened.’” The probation officer described
Nelson as having a disregard for the effects of the relationship
on others.
   [6] Nelson has displayed an inability to comprehend the
seriousness and inappropriate nature of his actions toward the
victim. Although Nelson claimed to take responsibility for his
actions, the judge noted that he only did so when the State
had clear evidence against him. Nelson clearly attempted to
maintain his inappropriate relationship with the victim through
manipulation, blackmail, and threatening suicide. We further
note that the minimum portion of Nelson’s sentence is 20
years’ imprisonment. It is the minimum portion of an indeter-
minate sentence which measures its severity. State v. Haynie,
239 Neb. 478, 476 N.W.2d 905 (1991); State v. Tillman, 1
Neb. App. 585, 511 N.W.2d 128 (1993). Based on the afore-
mentioned factors, the sentence imposed was not an abuse
of discretion.

                    2. Aggravated Offense
   Nelson next assigns that the district court erred in finding
that he was subject to the lifetime community supervision and
lifetime sex offender registration requirements. The district
court found by oral pronouncement that the offense was an
aggravated offense requiring lifetime community supervision
and lifetime registration; however, the court’s subsequent
September 21, 2018, journal entry setting forth Nelson’s
sentence did not refer to either lifetime community supervi-
sion or lifetime registration. Nelson argues that if the oral
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                          STATE v. NELSON
                       Cite as 27 Neb. App. 748

pronouncement governs over the written journal entry, the
district court’s oral statement was in error. The State con-
cedes that the oral statement was in error, but argues that the
written journal entry governs over the oral pronouncement.
We hold that because that portion of the district court’s oral
pronouncement referring to lifetime community supervision
and lifetime registration was invalid, the written journal entry
which corrected the error governs over the oral pronounce-
ment, and that the written journal entry was a correct state-
ment of the law.
   The Nebraska Supreme Court generally outlined the applica-
tion of SORA, prior to its amendment, in State v. Payan, 277
Neb. 663, 667-68, 765 N.W.2d 192, 198-99 (2009):
         SORA applies to any person who pleads guilty to or is
      found guilty of certain listed offenses, including sexual
      assault as defined by § 28-319 or Neb. Rev. Stat. § 28-320
      (Reissue 2008). SORA includes a general requirement
      that persons convicted of these listed offenses must reg-
      ister with the sheriff of the county in which he or she
      resides during any period of supervised release, proba-
      tion, or parole and “for a period of ten years after the
      date of discharge from probation, parole, or supervised
      release or release from incarceration, whichever date is
      most recent.”
         Certain sex offenders, however, are subject to a lifetime
      registration requirement. Section 29-4005(2) provides: “A
      person required to register under section 29-4003 shall be
      required to register under [SORA] for the rest of his or
      her life if the offense creating the obligation to register
      is an aggravated offense, if the person has a prior convic-
      tion for a registrable offense, or if the person is required
      to register as a sex offender for the rest of his or her life
      under the laws of another state, territory, commonwealth,
      or other jurisdiction of the United States. A sentenc-
      ing court shall make that fact part of the sentencing
      order.” The lifetime community supervision provisions of
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                         STATE v. NELSON
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      § 83-174.03 incorporate and mirror the lifetime registra-
      tion provisions of SORA. According to § 83-174.03(1), a
      defendant who commits an aggravated offense as defined
      by SORA “shall, upon completion of his or her term
      of incarceration or release from civil commitment, be
      supervised in the community by the Office of Parole
      Administration for the remainder of his or her life.”
   In determining whether an aggravated offense occurred for
purposes of lifetime community supervision and lifetime regis-
tration, the Nebraska Supreme Court in State v. Payan, supra,
described different considerations. For purposes of lifetime
supervision, the Supreme Court stated:
      We hold that where the facts necessary to establish an
      aggravated offense as defined by SORA are not specifi-
      cally included in the elements of the offense of which
      the defendant is convicted, such facts must be spe-
      cifically found by the jury in order to impose lifetime
      community supervision under § 83-174.03 as a term of
      the sentence.
State v. Payan, 277 Neb. at 675-76, 765 N.W.2d at 204.
   Conversely, for purposes of lifetime registration, the Supreme
Court stated:
      We recently rejected a similar contention in State v.
      Hamilton, [277 Neb. 593, 763 N.W.2d 731 (2009),]
      concluding that under SORA, a sentencing judge need
      not consider only the elements of an offense in deter-
      mining whether an aggravated offense as defined in
      § 29-4005(4)(a) has been committed. Instead, the court
      may make this determination based upon information
      contained in the record.
State v. Payan, 277 Neb. at 668-69, 765 N.W.2d at 199. The
Payan court separately held: “We specifically note that the
finding of an aggravated offense need not be made by a jury
if utilized only to impose the nonpunitive lifetime registra-
tion requirements of SORA.” 277 Neb. at 676, 765 N.W.2d
at 204.
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                          STATE v. NELSON
                       Cite as 27 Neb. App. 748

   Because lifetime community supervision and lifetime reg-
istration involve separate considerations, and because the
Legislature has amended SORA following the Supreme Court’s
rulings in State v. Payan, supra, and State v. Hamilton, 277
Neb. 593, 763 N.W.2d 731 (2009), we discuss those consider-
ations separately.

              (a) Lifetime Community Supervision
   As we stated before, in relation to lifetime community
supervision, where the facts necessary to establish an aggra-
vated offense defined by SORA are not specifically included
in the elements of the offense for which the defendant is con-
victed, such facts must be specifically found by a jury.
   For the purposes of SORA, the term “aggravated offense” is
now defined as
      any registrable offense under section 29-4003 which
      involves the penetration of, direct genital touching of, oral
      to anal contact with, or oral to genital contact with (a) a
      victim age thirteen years or older without the consent of
      the victim, (b) a victim under the age of thirteen years, or
      (c) a victim who the sex offender knew or should have
      known was mentally or physically incapable of resisting
      or appraising the nature of his or her conduct.
Neb. Rev. Stat. § 29-4001.01(1) (Reissue 2016).
   Here, Nelson was convicted of violating § 28-319. Section
28-319(1) has as its elements the following:
      Any person who subjects another person to sexual pen-
      etration (a) without the consent of the victim, (b) who
      knew or should have known that the victim was mentally
      or physically incapable of resisting or appraising the
      nature of his or her conduct, or (c) when the actor is nine-
      teen years of age or older and the victim is at least twelve
      but less than sixteen years of age is guilty of sexual
      assault in the first degree.
Nelson pled to a violation of § 28-319 because, according
to the factual basis provided, Nelson subjected the victim to
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                         STATE v. NELSON
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sexual penetration when she was at least 12 years of age but
less than 16 years of age.
   Because the term “aggravated offense” as defined by
§ 29-4001.01(1) is not a specifically included element of
§ 28-319 under the circumstances pled by Nelson in this
case (Nelson did not plead to lack of consent by the victim),
in order for lifetime community supervision to apply, a jury
would need to find facts sufficient to find that Nelson had
committed an aggravated offense or Nelson would have had
to separately plead to it. Here, a jury did not find that the
victim, who was over 13 years of age, did not consent to the
sexual act which is a definitional requirement for an aggra-
vated offense involving a victim 13 years of age or older. Nor,
under these facts, did Nelson specifically plead to an aggra-
vated offense by pleading guilty to a violation of § 28-319.
Accordingly, if the oral pronouncement of the court governs
over the written journal entry, a matter we will later address,
the court erred by orally pronouncing that Nelson was sub-
ject to lifetime community supervision under Neb. Rev. Stat.
§ 83-174.03 (Reissue 2014).
                     (b) Lifetime Registration
   In finding that a trial court and not a jury could sepa-
rately determine whether an aggravated offense occurred, the
Nebraska Supreme Court relied upon the language of SORA
prior to its amendment. In State v. Payan, 277 Neb. 663, 668,
765 N.W.2d 192, 199 (2009), the Nebraska Supreme Court
quoted from the provisions of SORA set forth in Neb. Rev.
Stat. § 29-4005(2) (Reissue 2008) prior to its amendment:
      “A person required to register under section 29-4003
      shall be required to register under [SORA] for the rest
      of his or her life if the offense creating the obligation
      to register is an aggravated offense, if the person has a
      prior conviction for a registrable offense, or if the per-
      son is required to register as a sex offender for the rest
      of his or her life under the laws of another state, terri-
      tory, commonwealth, or other jurisdiction of the United
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     States. A sentencing court shall make that fact part of the
     sentencing order.”
   In construing that language and the language of
§ 29-4005(3)(a), the Nebraska Supreme Court held:
        We do not find the meaning of § 29-4005(2) to be
     quite so clear. The second sentence of that subsection
     refers to the existence of an aggravated offense or other
     grounds for lifetime registration as a “fact” which is to
     be made a part of the sentencing order. This suggests that
     some factfinding is necessary, and we have stated that
     the statute “require[s] the court, as part of the sentence,
     to determine if the defendant committed an aggravated
     offense.” Had the Legislature intended that the “fact” of
     penetration for purposes of an aggravated offense deter-
     mination should be derived solely from the elements of
     the offense, it could have used specific language to that
     effect. For example, the Legislature has enacted a statute
     providing that an offender may be required to submit to
     a human immunodeficiency virus antibody or antigen
     test if he or she has been convicted of certain specified
     offenses “or any other offense under Nebraska law when
     sexual contact or sexual penetration is an element of the
     offense.” We conclude that § 29-4005(2) is ambiguous
     as to whether the sentencing court may make a factual
     finding in determining that the offense committed by a
     particular defendant under § 29-4005(4)(a) “involves the
     penetration of . . . a victim under the age of twelve years”
     for purposes of determining the existence of an aggra-
     vated offense under SORA. Accordingly, the statute is
     open to construction.
State v. Hamilton, 277 Neb. 593, 599-600, 763 N.W.2d 731,
736 (2009). After reviewing the language of the statute, the
Supreme Court ultimately held:
        We therefore conclude that under SORA, a sentencing
     judge need not consider only the elements of an offense
     in determining whether an aggravated offense as defined
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      in § 29-4005(4)(a) has been committed. Instead, the court
      may make this determination based upon information
      contained in the record, including the factual basis for a
      plea-based conviction and information contained in the
      presentence report. To the extent that [State v.] Mastne[,
      15 Neb. App. 280, 725 N.W.2d 862 (2006),] holds other-
      wise, it is disapproved.
State v. Hamilton, 277 Neb. at 602, 763 N.W.2d at 738.
   Following the Nebraska Supreme Court’s pronouncements
in State v. Payan, supra, and State v. Hamilton, supra, the
Legislature amended SORA. In addition to changing the defi-
nition of the term “aggravated offense” and moving that defini-
tion to § 29-4001.01(1), the Legislature significantly amended
the language in § 29-4005(2). The Legislature moved the
operative language governing the duration of registration under
SORA to § 29-4005(1) and replaced the former language of
§ 29-4005(2) with the following language in Neb. Rev. Stat.
§ 29-4005 (Reissue 2016):
         (1)(a) Except as provided in subsection (2) of this
      section, any person to whom [SORA] applies shall be
      required to register during any period of supervised
      release, probation, or parole and shall continue to com-
      ply with [SORA] for the period of time after the date of
      discharge from probation, parole, or supervised release or
      release from incarceration, whichever date is most recent,
      as set forth in subdivision (b) of this subsection. A sex
      offender shall keep the registration current for the full
      registration period but shall not be subject to verification
      procedures during any time the sex offender is in custody
      or under an inpatient civil commitment, unless the sex
      offender is allowed a reduction in his or her registration
      period under subsection (2) of this section.
         (b) The full registration period is as follows:
         (i) Fifteen years, if the sex offender was convicted of a
      registrable offense under section 29-4003 not punishable
      by imprisonment for more than one year;
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         (ii) Twenty-five years, if the sex offender was con-
      victed of a registrable offense under section 29-4003 pun-
      ishable by imprisonment for more than one year; or
         (iii) Life, if the sex offender was convicted of a reg-
      istrable offense under section 29-4003 punishable by
      imprisonment for more than one year and was convicted
      of an aggravated offense or had a prior sex offense con-
      viction or has been determined to be a lifetime regis-
      trant in another state, territory, commonwealth, or other
      jurisdiction of the United States, by the United States
      Government, by court-martial or other military tribunal,
      or by a foreign jurisdiction.
   Accordingly, following the Legislature’s amendment of
SORA, particularly in adding the phrase “and was convicted of
an aggravated offense” in § 29-4005(1)(b)(iii), the Legislature
clearly eliminated the court’s role in separately determining the
fact of whether an aggravated offense occurred by reviewing
the record and limited the inquiry as to whether the defendant
has been convicted of an aggravated offense (or otherwise
qualified based upon conviction of a prior offense or is a life-
time registrant in another jurisdiction). Further, the Legislature
repealed the last sentence in § 29-4005(2) (Reissue 2008) for-
merly requiring that “[a] sentencing court shall make that fact
part of the sentencing order.” Instead, the Legislature replaced
that language with Neb. Rev. Stat. § 29-4007 (Reissue 2016),
which provides in part:
         (1) When sentencing a person convicted of a regis-
      trable offense under section 29-4003, the court shall:
         (a) Provide written notification of the duty to register
      under [SORA] at the time of sentencing to any defendant
      who has pled guilty or has been found guilty of a regis-
      trable offense under section 29-4003. The written notifi-
      cation shall:
         (i) Inform the defendant of whether or not he or she
      is subject to [SORA], the duration of time he or she will
      be subject to [SORA], and that he or she shall report
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     to a location designated by the Nebraska State Patrol
     for purposes of accepting such registration within three
     working days after the date of the written notification
     to register.
(We note that some provisions of SORA have been amended in
2019, but those amendments do not apply to the instant case.)
   As such, the court’s duty to make a finding of fact in the
sentencing order has been replaced with its obligation to pro-
vide a written notification which consists of the contents set
forth in § 29-4007(1). Here, in its oral pronouncement, the
court made reference to lifetime registration as part of its sen-
tencing order. The court erred in so including this pronounce-
ment as part of the order.

                    (c) Which Order Controls
   [7,8] As we stated before, in its oral pronouncement of
Nelson’s sentence, the court stated that Nelson was subject to
the lifetime community supervision requirement of § 83-174.03
and the lifetime registration requirement of SORA. As we
explained above, those pronouncements were invalid. However,
in its written order, the court made no reference to either life-
time community supervision or lifetime registration require-
ments and made reference only to Nelson’s sentence. This was
a proper sentence. It is well-settled that in the event of a dis-
crepancy between an oral pronouncement of sentence and the
written order of the sentence, the oral pronouncement controls.
State v. Erb, 6 Neb. App. 672, 576 N.W.2d 839 (1998). That
said, in cases where, as here, a portion of the court’s oral pro-
nouncement is invalid and another portion is valid, an appel-
late court has the authority to modify or revise the sentence by
removing the invalid or erroneous portion. See State v. Custer,
292 Neb. 88, 871 N.W.2d 243 (2015) (where portion of sen-
tence is valid and portion is invalid or erroneous, court has
authority to modify or revise sentence by removing invalid or
erroneous portion of sentence if remaining portion of sentence
constitutes complete valid sentence). Although those portions
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of the court’s oral pronouncement that Nelson was subject
to lifetime community supervision and lifetime registration
were invalid—because the court modified its written order to
remove those provisions—the court’s written order controls
over the invalid oral pronouncement. The written order of the
trial court is affirmed.

                      VI. CONCLUSION
   Having determined that the district court’s written order
regarding Nelson’s sentence controls, we affirm Nelson’s con-
viction and sentence.
                                                  A ffirmed.
