Friday, September 30, 2005

Supremes say 2002 Special Session amendments to first degree murder beyond scope of Unicameral purpose

Nebraska Supreme Court reverses sentence for double murderer convicted of Class IA felony first degree murder; Defendant murdered his parents after the effective date of the 2002 Special Session revisions to the death penalty that SCOTUS Ring v. Arizona, required {jury trials for aggravating circumstances}; Supremes find that amending alternate first degree murder sentence from "life imprisonment" to "life imprisonment without parole" went beyond the subject of the special legislative session and finding plain error, vacate the sentences for life without parole to order 2 consecutive "life" sentencesState v. Conover, 270 Neb. 446 September 30, 2005. No. S-04-576. The district court for Adams County sentenced Louis M. Conover II to two consecutive sentences of life imprisonment without parole after accepting his pleas of no contest to two counts of first degree murder charged as Class IA felonies. In this direct appeal, Conover contends that his sentences are erroneous because an amendment to the statute defining the penalty for a Class IA felony enacted during a 2002 special session of the Nebraska Legislature violated Neb. Const. art. IV, § 8. We find merit in this contention, and therefore, we vacate the sentences and remand the cause to the district court with directions for resentencing Supreme Court will consider plain error as to constitutionality of state statute The constitutional issue presented in this appeal was not asserted by Conover's trial counsel in the district court at the time of sentencing. Generally, a constitutional question not properly raised in the trial court will not be considered on appeal. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000); State v. Bainbridge, 249 Neb. 260, 543 N.W.2d 154 (1996). However, where the constitutional invalidity of a statute is plain and such determination is necessary to a reasonable and sensible disposition of the issues presented, we are required by necessity to notice the plain error. See State v. Goodseal, 186 Neb. 359, 183 N.W.2d 258 (1971). In response to the decision of the U.S. Supreme Court in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), the Nebraska Legislature amended Nebraska's capital sentencing statutes by passing L.B. 1 during a special session of the Legislature in 2002. See 2002 Neb. Laws, L.B. 1, 3d Spec. Sess. (Nov. 22, 2002). Even assuming for the sake of argument that the Legislature was merely attempting to clarify what it believed to be existing law when it amended § 28-105(1) in the 2002 special session, we conclude that the amendment was not related to or germane to any of the purposes for which it was called and had no natural connection to such purposes. The Governor's proclamation was narrow and specific, authorizing consideration of changes to existing statutes pertaining to the death penalty. There is no language in the proclamation which can reasonably be construed as authorizing the Legislature to amend a statute pertaining to life imprisonment, whether for purposes of clarification or substantive change. Thus, the 2002 amendments to §§ 28-105(1) and 29-2520(1), which insert the phrase "without parole" after "life imprisonment" contravene the constitutional directive that the "Legislature shall enter upon no business except that for which they were called together" in a special session. See Neb. Const. art. IV, § 8. We therefore conclude that whatever its intent, the Legislature lacked constitutional authority to amend the language of the statutory penalty for a Class IA felony during the 2002 special session. the Legislature lacked constitutional authority to add the phrase "without parole" to § 28-105(1) during the 2002 special session, it also lacked authority to repeal the version of the statute then in existence which prescribed the penalty for a Class IA felony as life imprisonment. Thus, at the time of Conover's sentencing, the district court had statutory authority to impose a sentence of life imprisonment on each of the two counts of first degree murder, but it lacked authority to add the phrase "without parole." Consequently, the sentences were erroneous but not void. See State v. Rouse, 206 Neb. 371, 293 N.W.2d 83 (1980), and Draper v. Sigler, 177 Neb. 726, 131 N.W.2d 131 (1964) (both holding that indeterminate sentence imposed for crime, where not authorized by statute, is erroneous but not void). See, also, State v. Alford, 6 Neb. App. 969, 578 N.W.2d 885 (1998).

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