Nebraska Supreme Court affirms defendant's conviction for driving while intoxicated, fourth offense, over his objection that records of two prior convictions were invalid because the records the State offered to prove the prior offenses lacked file stamp dates. State v. Macek, S-08-1196, 278 Neb. 967 Mark A. Macek appeals his guilty plea and conviction in the Lancaster County District Court for driving under the influence of alcohol, fourth offense, 60-6,197.03 (7). Macek claims that two of his three prior convictions were improperly used to enhance his sentence because they were not final, appealable orders. We affirm the decision of the district court. Macek is making an impermissible collateral attack on his prior DUI convictions and that those prior convictions were properly used for enhancement purposes.

Nebraska Supreme Court affirms robbery conviction from Gage County; denies defendant's appeal to allow testimony of other inmates that another suspect committed the robberies; denies appeal on prosecutors closing arguments; denies appeal on other crimes evidence; denies appeal on evidence of prior convictions.State v. Epp, S-08-331, 278 Neb. 683Miller-Lerman-J."William A. Epp appeals his convictions and sentences for robbery and possession of a deadly weapon by a felon. Epp was found to be a habitual criminal and was sentenced to imprisonment for 60 to 60 years on each of the two convictions, with the sentences ordered to be served consecutively. We affirm Epp’s convictions and sentences."Whether or not the district court erred in refusing to admit the portions of Mick’s testimony at issue, the guilty verdict rendered against Epp was surely unattributable to such error. The court refused portions of Mick’s testimony in which he denied that he committed the Wymore Casey’s robbery and denied that he told Blessing and Forney that he committed a robbery. Such testimony did not support, and instead refuted, Epp’s defense that it was Mick and not Epp who committed the robbery. Epp presented other evidence raising the possibility that Mick rather than Epp robbed the Wymore Casey’s. The jury apparently rejected such evidence.

Nebraska Supreme Court denies relief to defendant serving prison term for attempted second degree murder who requested that his guilty plea be set aside because he alleged the sentencing court's warning to him of the possible immigration consequences of his plea was insufficient. State v. Yos-Chiguil, S-08-1329, 278 Neb. 591 . "The (court's) failure to give the required advisement and the occurrence of an immigration consequence of which the defendant was not advised which triggers the statutory remedy in § 29-1819.02(2). The district court had jurisdiction to consider Yos-Chiguil’s motion to vacate his conviction, and this court has appellate jurisdiction to determine whether the district court erred in overruling the motion. § 29-1819.02(2) requires that in addition to showing that the advisement required by § 29-1819.02(1) was not given or was incomplete, a defendant seeking to vacate a plea-based conviction must also show that such conviction "may have the consequences for the defendant of removal from the United States, or denial of naturalization pursuant to the laws of the United States." Failure to give all or part of the advisement required by § 29-1819.02(1) regarding the immigration consequences of a guilty or nolo contendere plea is not alone sufficient to entitle a convicted defendant to have the conviction vacated and the plea withdrawn pursuant to § 29-1819.02(2). The defendant must also allege and show that he or she actually faces an immigration consequence which was not included in the advisement givenYos-Chiguil did not allege an essential fact necessary to trigger the remedy provided by § 29-1819.02(2), the district court did not err in denying the relief sought without an evidentiary hearing ."

Nebraska Supreme Court allows Lancaster County District Court judge to order a two year license revocation to commence as soon as the state released defendant from prison or put him on parole. State v. Fuller, S-08-1253, 278 Neb. 585 "§ 60-4,108, states a license revocation is to begin on the date that is ordered by the court. Obviously, some drivers may not be in a position to drive until they have served their sentence of incarceration. Therefore, the court is given the discretion to determine when the license revocation pursuant to § 60-4,108 is to begin, including after the completion of a period of confinement. ..Section 60-4,108 is not ambiguous. The language "from the date ordered by the court," see id., clearly means "from the date selected by the court," giving the district court the discretion to determine the beginning date of the operator’s license revocation. "

Petition for further review to the Nebraska Supreme Court sustained in No. S-08-959: State v. Simnick, 17 Neb. App. 766 (2009). Petition of appellant for further review sustained on September 16, 2009 {the finding that Defendant committed an aggravated offense for the purpose of lifetime community supervision should have been submitted to a jury, but the error was harmless }.

Nebraska Supreme Court allows sentencing court to correct mistaken calculation of time served after sentencing. State v. Clark, S-08-735, 278 Neb. 557 The Lancaster County District Court judge gave an defendant more credit for time served than he actually served and the court attempted to correct the sentence for Class I misdemeanor sexual assault by noting the appropriate amount of credit. On May 19, 2008, the district court attempted to sentence defendant to 360 days in jail but incorrectly credited Defendant with 361 days’ time served. On June 12, the court entered a written sentencing order granting Defendant credit for 61 days’ time served, the amount of time actually served and reflected by the record. Defendant appealed, and the Nebraska Court of Appeals affirmed. We granted Defendant’s petition for further review. For different reasons, we affirm. A sentencing court must under Neb. Rev. Stat. § 47-503 (Reissue 2004), separately determine, state, and grant credit for time served, and must the court must set form those times as a part of the sentence, State v. Torres, 256 Neb. 380, 590 N.W.2d 184 (1999). The judge was without discretion to award Defendant more credit for time served than he actually served. Accordingly the district court had authority to correct the erroneous portion of its sentencing pronouncement by giving Defendant the accurate amount of credit for time served as reflected by the record.

Why are the members of the Nebraska Pardons Board having to take countless pardon applications for minor crimes? Simple, the Nebraska Supreme Court said so. Journalstar.com See also State v. Bainbridge, 249 Neb. 260, 543 N.W.2d 154 (1996).

Nebraska Constitution » IV-13

Board of parole; members; powers; reprieves; proceedings; power to pardon; limitations "The Governor, Attorney General and Secretary of State, sitting as a board, shall have power to remit fines and forfeitures and to grant respites, reprieves, pardons, or commutations in all cases of conviction for offenses against the laws of the state, except treason and cases of impeachment. The Board of Parole may advise the Governor, Attorney General and Secretary of State on the merits of any application for remission, respite, reprieve, pardon or commutation but such advice shall not be binding on them."

Eighth Circuit Court of Appeals affirms conviction for child pornography; defendant's claim that governments search of his computer that was hooked up peer to peer with other computers through Lime Wire program was not an illegal warrantless search. 083183P.pdf 08/14/2009 United States v. Harold Stults U.S. Court of Appeals Case No: 08-3183 District of Nebraska - Omaha [PUBLISHED] [Smith, Author, with Riley and Colloton, Circuit Judges] Criminal case - criminal law and sentencing. Users of peer-to-peer file sharing software like LimeWire do not have a reasonable expectation of privacy in files they make available to others using the software, and the warrantless search of defendant's computer through LimeWire did not violate his Fourth Amendment rights; affidavit the police used to obtain a warrant to search defendant's home and seize his computer established probable cause to believe child pornography would be found; defendant's prior conviction for attempted sexual assault on a child was sufficient to invoke the ten-year mandatory minimum sentence under 18 U.S.C. Sec. 2252(b)(2); under this court's precedents, the district court did not err in applying the five-level enhancement under Guidelines Sec. 2G2.2(b)(3)(B) as the government produced sufficient circumstantial evidence to meet its burden of proving defendant expected to receive child pornography when he used LimeWire; sentence was not unreasonable; special conditions of supervised release which controlled defendant's contact with children, access to pornography and use of the Internet and cameras were related to his offense and were reasonable measures to protect the public.

Nebraska Court of Appeals allows uncounseled prior DUI conviction for enhancement when sentence was stand-alone probation and subsequent offense for DUI 2nd offense. State v. Wilson, A-08-1337, 17 Neb. App. 846. New charge was DUI 2nd offense, more than 0.15, Neb. Rev. Stat. § 60-6,196 (Reissue 2004), which is a Class I misdemeanor under Neb. Rev. Stat. § 60-6,197.03(5) (Supp. 2007). At the time, her breath alcohol content was .215 grams per 210 liters of her breath. "we hold that a prior conviction resulting in a sentence of probation, and not actual imprisonment, can be used for enhancement in subsequent proceedings without a showing that the defendant had or waived counsel in the prior proceeding. Because Wilson was sentenced to probation and a fine and no term of imprisonment was actually imposed, Wilson was clearly not entitled to counsel for her misdemeanor conviction for DUI in 2003—on constitutional or any other grounds."

Defendant convicted of sex crime who was not in custody, probation or parole could not challenge requirement he register as a sex offender through post-conviction proceedings. State v. York, S-08-884, 278 Neb. 306 Defendant claims that this requirement renders him "in custody under sentence" such that he should be permitted to seek relief under the Nebraska Postconviction Act. See § 29-3001. We conclude that an individual who is subject to the registration requirements under the SORA (Neb. Rev. Stat. § 29-4001 et seq. (Reissue 2008)) is not "in custody under sentence" for purposes of the Nebraska Postconviction Act. See § 29-3001.

Nebraska Supreme Court rejects defendant's double jeopardy argument against using his prior felony convictions to find him guilty as both a felon possessing a firearm and as an habitual offender. State v. Ramirez, S-06-920, 274 Neb. 873. Defendant was convicted by the district court in 2004 with use of a firearm to commit a felony, being a felon in possession of a firearm, and terroristic threats. The court also found Defendant was an habitual criminal. Defendant was acquitted by a jury of a count of possession of methamphetamine. Defendant was sentenced, collectively, to terms of imprisonment totaling not less than 25 nor more than 50 years. His trial counsel also served as counsel on direct appeal, and the only issue raised in his brief was whether his sentences were excessive. The Nebraska Court of Appeals summarily affirmed. Defendant loses his ineffective counsel action because his double jeopardy argument would fail. The fact that the predicates for §§ 28-1206 (felon in possession of a firearm) and 29-2221 (habitual offender) are defined in different terms suggests that the same conviction can be used for both status and enhancement if that conviction meets the independent requirements of each statute. it is apparent, from Nebraska’s statutory scheme, that the Legislature intended for habitual criminals to be sentenced pursuant to § 29-2221, even when convicted of violating § 28-1206. The statutes define their necessary predicate elements using different standards. Therefore the trial court did not violate the defendant's Fifth Amendment right against Double Jeopardy.

Eighth Circuit Court of Appeals affirms "slight" downward deviation from sentencing guidelines of 180 months prison plus 6 years supervised for methamphetamine production 21 U.S.C. § 841(a)(1), (b)(1)(C). Citing Gall v. United States, No. 06-7949 and 18 U.S.C. § 3553(a)(1), (4)(A), the Eighth Circuit finds no abuse of discretion from the sentence outside the guidelines range as the trial court considered all appropriate factors while not considering inappropriate factors.063488U.pdf 12/28/2007 USA v. Robert Jon Lucas U.S. Court of Appeals Case No: 06-3488 U.S. District Court for the Southern District of Iowa - Des Moines [UNPUBLISHED] [Per Curiam, with Murphy, Smith, and Shepherd, Circuit Judges]

US District Court for the District of Nebraska erred when it gave a methampetamine defendant credit for "minimal participation" in a drug distribution scheme. Eighth Circuit Court of Appeals reverses sentence of time served at one year because the defendant actively participated in manufacturing and distributing the drugs. 063920P.pdf 12/07/2007 United States v. Scott Goodman U.S. Court of Appeals Case No: 06-3920 District of Nebraska - Omaha [PUBLISHED] [Gruender, Author, with Colloton and Beam, Circuit Judges] the court erred when it granted him a four-level minimal participant reduction under Guidelines Sec. 3B1.2(a); on remand, the court should not consider defendant's post-sentencing rehabilitation in determining his sentence.

Although the Nebraska Supreme Court earlier held that Neb. Rev. Stat. § 29-2281 (how to assess criminal restitution, see In re Interest of Brandon M., 273 Neb. 47, 727 N.W.2d 230 (2007) did not apply to juvenile delinquency proceedings, the Supreme Court holds that juvenile courts should use its rules for "guidance." In re Interest of Laurance S., S-06-1439, S-06-1443 , 274 Neb. 620 Nebraska Supreme Court (J. Miller-Lerman) reverses $29,000 restitution orders against two Fremont brothers who vandalized a school. Can you say "legislating from the bench?" Justice Miller-Lerman cant stand that juvenile courts don't have statutory guidelines on assessing restitution, so she helps them come up with some. $29000 was just too high a price to charge two likely career losers without considering their ability to pay. Did it occur to the supreme court that putting a little shock value into their heads might wake them up? Instead typical of her blame the victim attitude she is more concerned with the self-esteem of the delinquents. "The result of such [an order] would not be rehabilitation. Rather, it would give the [juvenile] a sense of unfairness, injustice and bitterness towards the system because the chance to reform would not be present.’”

Nebraska state courts retained jurisdiction to prosecute crimes involving Indians that preceded effective date of Unicameral's retrocession agreement with the Federal Government. State v. Wabashaw, S-06-642, 274 Neb. 394 Defendant was convicted of robbery and the court sentenced him as an habitual offender. The crime occurred on Indian territory. Nebraska Supreme Court affirms conviction as effective date (71 Fed. R eg. 7994 (Feb. 15, 2006)) of Nebraska's retrocession agreement (L.R. 17, Legislative Journal, 97th Leg., 1st S ess. 2356, 2358-59 (May 31,2001)) followed the crime. Congress abrogated its 1868 treaty with Indian tribes that required notice to the tribes before the State prosecuted an Indian (Public Law 280 18 U.S.C. § 1162(a) (2000)). Finally the Defendant's prior robbery conviction in South Dakota counted to enhance his sentence even though South Dakota courts (S.D. Codified Laws § 22-7-9 (2004))could not have considered the prior conviction due to passage of time (§ 29-2221 RRS Neb.).

Judge who did not recite immigration consequences to immigrant defendant word for word did not cause manifest injustice entitling defendant to vacate his plea. State v. Molina-Navarrete, A-06-1362, 15 Neb. App. 966Can you tell the difference between what the Dawson County Judge told one of our hard working striving new arrivals to our land of promise and what the Nebraska Legislature requires judges to advise defendants on the possible immigration consequences of breaking our laws? Here's what the judge told the defendant Molina-Navarrete: "In addition, if you are not a United States citizen, any conviction of this offense may have the consequence of causing you to be removed from the United States; that is, deported or denied naturalization of the laws of the United States. Do you understand all of the penalties" YES Here's what Section 29-1819.02 requires, in bold: IF YOU ARE NOT A UNITED STATES CITIZEN, YOU ARE HEREBY ADVISED THAT CONVICTION OF THE OFFENSE FOR WHICH YOU HAVE BEEN CHARGED MAY HAVE THE CONSEQUENCES OF REMOVAL FROM THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES. Molina-Navarette sought to vacate his guilty plea after sentencing for narcotics possession. Dawson County overruled his motion and the Nebraska Court of Appeals found no manifest injustice, the standard for vacating pleas after sentencing: "We conclude that these minor language differences are inconsequential and that Molina-Navarrete was properly advised of the immigration consequences of his plea as required by § 29-1819.02 and refusing to vacate the plea was not a manifest injustice"

The Lancaster County Court and local prosecutors do the right thing to avoid another "Jena 6" situation here. Lancaster County Judge Gayle Pokorny sentenced Earl Richardson III to six months in jail yesterday for "criminal mischief." Journal Star.com What was his crime? Richardson an Omaha resident was randomly shooting a harmless paintball gun while riding in the back of his friend's Lincoln Towncar. One of his shots found the back of a three year old girl's head, and it knocked her to the ground. He plead to two counts of "Criminal Mischief," Section 28-519. Criminal Mischief can be a Class IV felony, or Class I, II, or III misdemeanor. The article does not say whether the judge sentenced the defendant to concurrent six month terms or whether the defendant received two consecutive three month sentences. Naturally the public is outraged at the seemingly light sentence, especially since the Defendant had a rather long rap sheet, 5 pages of computer print-outs. But good Judge Pokorny and the prosecutors who watered down the charges did the right thing. After all, we don't need any Jena 6 marches or more Ernie Chambers lawsuits around here do we?

Eminent law prof blawgger applauds Nebraska Supreme Court's decision to maintain SNAFU status with sentencing guidelines. Sentencing Law and Policy Blog loves Nebraska's Justice League member Joe Bataillon, US District Court, and now William Connolly Nebraska Supreme Court for refusing to bow to pressure from the Legislature to introduce some sanity to sentencing decisions. Why if we had guidelines for drug dealers, then we might have to have guidelines for electrocuting murderers, Nigerian gang-bangers, and pedophile runt-rangers.

While the Nebraska court of appeals affirmed probation for the runt rider Richard Thompson, it affirms theLancaster County District Court's 12-18 year sentence for second degree arson (Section 28-503 RRS Neb)that District Judge Colborn handed to 17 year old Benjamin Reddish ( a class III felony).

• State v. Reddish , A-06-465

"The record indicates that within a period of less than 2 months, Reddish was involved in starting nine fires, ranging from small acts of vandalism to vehicle fires to the fire resulting in this sentence, in which Reddish was responsible for completely destroying a residence under construction and causing in excess of $400,000 damage. The record also indicates that Reddish has a history of fire-related conduct, and during the presentence investigation, Reddish scored in the maximum risk range for aggressiveness and the problem risk range for antisocial behavior and violence. The fires Reddish was involved in were premeditated acts, and he pled no contest to a serious crime. The district court did not abuse its discretion in imposing this sentence. This assignment of error is without merit."

Defendant convicted of first degree sexual assault on his 6 year old stepdaughter loses appeal to the Nebraska Supreme Court. Supreme Court upholds the constitutionality of Nebraska's incest statute § 28-703(1) because defendant did not have standing to raise his vagueness challenge to the law. State v. Archie, S-05-1145 David Archie was convicted in Lancaster County District Court of sexually assaulting his 6 yr old stepdaughter. The Supreme Court takes the case but affirms the conviction and 25-30 year sentence for the sexual assault, 28-319 (pre 2006 version) and of incest (§ 28-703(1) (Reissue 1995). Supreme court affirms the constitutionality of the state incest statute, even though in the earlier case State v. Johnson, 269 Neb. 507, 695 N .W.2d 165 (2005).several Justices would have held it unconstitutional. I guess the law wasn't vague enough to allow a child rapist to get away with it. The Supreme Court also finds a child abuse investigators testimony as to the credibility of the child victim was harmless error because it occurred on redirect testimony. On the small matter of Lancaster County's punctilious judge's error in mixing up his verdict forms, the Supreme Court let it go because no one complained about it. Finally although the defendant claimed his sentence was excessive, the legislature greatly increased the penalties for child sexual assaults with LB 1199 last year {28-319.01, class IB felony and 15 year minimum} so he's pretty lucky he got caught when he did.