Wright, J.
On September 23, 2015, Cyrus H. Kantaras was convicted of distribution of a controlled substance, marijuana, in violation of Neb. Rev. Stat. § 28-416(1)(a) (Cum. Supp. 2014), a Class III felony. The conviction was based on acts that took place on December 23, 2014. On November 12, 2015, Kantaras was sentenced to probation. Kantaras appeals the terms of his probation as excessive. An issue, raised by the State, is whether the district court exceeded its statutory authority by sentencing Kantaras to 180 days' "incremental" jail time as part of his sentence of probation, contingent upon any possible future violations of the terms of probation.
Kantaras was originally charged with distribution of a controlled substance in a school zone, in violation of § 28-416(4)(a)(ii), a Class II felony. On September 22, 2015, the charge was amended to one count of distribution of a controlled substance, marijuana, in violation of § 28-416(1)(a), a Class III felony.
On September 22, 2015, Kantaras pled no contest pursuant to a plea agreement in which the State agreed that it would not object to a sentence of probation if Kantaras requested probation. If Kantaras did not request probation, the State would recommend a sentence of 2 to 5 years' imprisonment. The State agreed it would not pursue any potential other charges discovered as a result of the investigation into the matter. Kantaras' plea was accepted, and he was adjudged guilty in an order filed on September 23.
The presentence investigation report indicated that Kantaras was previously convicted as a juvenile of minor in possession, attempted theft by receiving stolen property, four counts of theft by unlawful taking, and being an uncontrollable juvenile. For the uncontrollable juvenile conviction, Kantaras was sentenced to probation. He was released from probation unsatisfactorily. Kantaras was sentenced to the care and custody of the Office of Juvenile Services for the other convictions, which occurred subsequently to the uncontrollable juvenile conviction.
The court pronounced its sentence at the sentencing hearing. It expressed concern that Kantaras had a history of criminal
At the hearing, the court outlined the terms and conditions of Kantaras' probation, including not associating with persons having a known criminal record or in possession of nonprescribed controlled substances, participating in six counseling programs and six described classes, refraining from consuming liquor or any nonprescribed controlled substance, refraining from frequenting establishments that sell or distribute alcohol except grocery stores or convenience stores, and serving 180 days in the Buffalo County Detention Center, with 2 days' credit, "incremental only."
The court explained that the 180-day "incremental sentencing" was something hanging over Kantaras' head for the entire period of his probation. The court said:
Thus, the court explained that if Kantaras violated his probation "badly enough," it was most likely that the Office of Probation Administration would seek revocation of Kantaras' probation rather than sanctions.
The court issued its sentencing order, which imposed 4 years of probation.
The commitment order stated in relevant part:
The confines of probation are set forth in the Nebraska Probation Administration Act (the Act),
Section 29-2262(1) of the Act, which has remained unchanged by the recent legislative bills, states in part that "[w]hen a court sentences an offender to probation, it shall attach such reasonable conditions as it deems necessary or likely to insure that the offender will lead a law-abiding life." Section 29-2262(2) then presents a list of 20 things that "[t]he court may, as a condition
Section 29-2262(2)(b) also sets forth, as a condition of probation, the possibility of requiring the offender to "be confined periodically in the county jail or to return to custody after specified hours." No other section in the Act, either before or after L.B. 605 and L.B. 1094, specifically addresses the power of the court to order jail time as part of a sentence of probation. Section 29-2262(2)(b) was changed by both L.B. 605 and L.B. 1094.
At the time Kantaras committed the crime of distribution of a controlled substance, before L.B. 605 or L.B. 1094, § 29-2262(2)(b) (Cum. Supp. 2014) allowed the court, as a condition of a sentence of probation, to require the offender to be confined periodically in the county jail or to return to custody after specified hours, but not to exceed, (1) for misdemeanors, the lesser of 90 days or the maximum jail term provided by law for the offense, and (2) for felonies, 180 days.
When the Act was amended by L.B. 605 on August 30, 2015, the only change to § 29-2262 was in subsection (2)(b). Under L.B. 605, § 29-2262(2)(b) stated that as a condition of a sentence of probation, the court may require the offender, for misdemeanors, to be confined periodically in the county jail or to return to custody after specified hours, but not to exceed the lesser of 90 days or the maximum jail term provided by law for the offense. The statute no longer provided for jail time as a possible condition of a sentence of probation for persons convicted of felonies.
Neb. Rev. Stat. § 83-1,135.02(2) (Supp. 2015) stated that the changes made to § 29-2262 by L.B. 605 shall "apply to all committed offenders under sentence, on parole, or on probation on August 30, 2015, and to all persons sentenced on and after such date."
As amended by L.B. 1094, § 29-2262(2) now states that the court may, as a condition of a sentence of probation, require "the offender ... (b) [t]o be confined periodically in the county jail or to return to custody after specified hours but not to exceed the lesser of ninety days or the maximum jail term provided by law for the offense." (Emphasis supplied.) Thus, the 90-day maximum jail time applies equally to persons convicted of felonies and those convicted of misdemeanors.
L.B. 1094 also added new subsections (3) and (4) to § 29-2262, which now provide:
As for the retroactivity of L.B. 1094, a new subsection (3) was added to § 83-1,135.02. Section 83-1,135.02(3) states that it was the Legislature's intent that the changes made to § 29-2262 "apply to all committed offenders under sentence, on parole, or on probation on or after April 20, 2016, and to all persons sentenced on and after such date."
Kantaras assigns that the district court abused its discretion by imposing an excessive sentence.
In its brief, the State points out that the portion of the commitment order imposing an incremental jail sentence may be in violation of § 29-2262 (Supp. 2015), as amended by L.B. 605. The State's brief was filed before the passage of L.B. 1094.
Whether a condition of probation imposed by the sentencing court is authorized by statute presents a question of law.
We agree with the State that the district court committed plain error by imposing 180 days' "incremental" jail time. An appellate court always reserves the right to note plain error that was not complained of at trial or on appeal.
We begin with the principle that the power to define criminal conduct and fix its punishment is vested in the legislative branch, whereas the imposition of a sentence within these legislative limits is a judicial function.
Section 29-2262(1) states generally, in part, that "[w]hen a court sentences an offender to probation, it shall attach such reasonable conditions as it deems necessary or likely to insure that the offender will lead a law-abiding life," and § 29-2262(2) (r) states that the court may require the probationer "[t]o satisfy any other conditions reasonably related to the rehabilitation of the offender." Nevertheless, these general provisions do not confer the power to impose jail time as part of sentences of probation; nor do they confer the power to impose the kind of "incremental" sentence the district court described.
We held in State v. Nuss
At the time Kantaras was sentenced, under the amendments passed by L.B. 605, there was no statutory authority to impose jail time as a condition of probation for felony offenders. Although before L.B. 605, the Act allowed for up to 180 days' jail time for felony offenders, the retroactivity provision of § 83-1,135.02(2) provided that L.B. 605 was controlling at the time of sentencing. Section 29-2262(2)(b) under L.B. 605 set forth the possibility of jail time as part of the sentence of probation only for misdemeanor offenders.
It is true that L.B. 605 introduced for felony offenders "custodial sanctions" as another tool in the Office of Probation Administration's "matrix" of rewards for compliance and of graduated sanctions for substance abuse and technical violations by those persons sentenced to probation.
It is possible that the sentencing court, in imposing 180 days' "incremental" jail time, was attempting to make some form of advisement as to the possible custodial sanctions under L.B. 605, rather than conditionally
Even if we were to assume that the Legislature intended the custodial sanctions introduced by L.B. 605 to be retroactive and, further, that such retroactive application of custodial sanctions would not violate ex post facto principles, L.B. 605 did not contemplate that custodial sanctions would entail a prior order as a part of the original sentence of and commitment to probation. The custodial sanctions introduced into the Act by L.B. 605 are set forth in separate statutes concerning the powers of the Office of Probation Administration to reward and sanction its probationers.
There is no reference in the Act, either before or after recent amendments, to "incremental" jail time as described by the sentencing court. The jail time described by § 29-2262(2)(b) has always been for a determinate period, up to the number of days authorized by the statute, imposed because of the severity of the crime or the defendant's criminal history. Jail time under § 29-2262(2)(b) may be ordered to be served "periodically" (sometimes referred to as "intermittently"
In sum, at the time of sentencing, there was no statutory authority to impose jail time, conditional or otherwise, as part of a sentence of probation for felony offenders. Therefore, the portion of Kantaras' sentence imposing jail time as part of his sentence of probation was in excess of the sentencing court's powers and was invalid.
We note that the version of § 29-2262 that controls the court's powers to resentence on remand is that provision as amended by L.B. 1094. The Legislature provided under § 83-1,135.02(3) that the changes made to § 29-2262 by L.B. 1094 were to retroactively "apply to all committed offenders under sentence, on parole, or on probation on or after April 20, 2016, and to all persons sentenced on and after such date." Moreover, § 29-2262 would be applicable to resentencing under the doctrine elucidated in State v. Randolph,
Granted, § 29-2262(2)(b) as it existed at the time of Kantaras' sentencing, provided for no jail time as a condition of probation for felony offenders. Furthermore, the court attempted to impose a conditional custodial sanction, less onerous than the determinative period of jail time of up to 90 days now authorized by L.B. 1094. But no rights attached to the district court's invalid and nonfinal sentence such as would prevent resentencing under L.B. 1094.
The Ex Post Facto Clause of U.S. Const. art. I, § 9, does not bar application of L.B. 1094, because the Ex Post Facto Clause bars only application of a law that "`changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.'"
On remand, the only constitutional restraint is that the court not act vindictively in resentencing.
Because we remand the cause for resentencing, we do not address Kantaras' excessive sentence argument.
Insofar as the court issued a conditional term of 180 days' jail time as part of its sentence of Kantaras to probation, that portion of the sentence is vacated. We
SENTENCE VACATED, AND CAUSE REMANDED FOR RESENTENCING.
Stacy, J., concurs.
