State v. Kantaras
Neb.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/07/2016 09:07 AM CDT
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STATE v. KANTARAS
Cite as 294 Neb. 960
State of Nebraska, appellee, v.
Cyrus H. K antaras, appellant.
___ N.W.2d ___
Filed October 7, 2016. No. S-15-1157.
1. Sentences: Probation and Parole: Appeal and Error. Whether a con-
dition of probation imposed by the sentencing court is authorized by
statute presents a question of law.
2. Appeal and Error. Plain error may be found on appeal when an error,
plainly evident from the record, prejudicially affects a litigant’s substan-
tial right and, if uncorrected, would result in damage to the integrity,
reputation, and fairness of the judicial process.
3. Criminal Law: Legislature: Courts: Sentences. 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.
4. Sentences. A sentence is illegal when it is not authorized by the judg-
ment of conviction or when it is greater or less than the permissible
statutory penalty for the crime.
5. Sentences: Probation and Parole. When a court sentences a defendant
to probation, it may only impose conditions of probation that are autho-
rized by statute.
6. Probation and Parole. The power of a court to impose conditions of
probation must be strictly construed from the applicable statutes.
7. Sentences: Probation and Parole. A sentencing court has no power
to impose a period of imprisonment as a condition of probation in the
absence of a statutory provision specifically setting forth such power.
8. Sentences: Appeal and Error. The Nebraska Supreme Court has the
power on direct appeal to remand a cause for the imposition of a lawful
sentence where an erroneous one has been pronounced.
9. Criminal Law: Statutes: Legislature: Time. If the Legislature amends
a criminal statute by mitigating the punishment after the commission
of a prohibited act but before final judgment, the punishment is that
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provided by the amendatory act unless the Legislature specifically pro-
vided otherwise.
10. Constitutional Law: Criminal Law: Legislature: Notice. The Ex Post
Facto Clause of U.S. Const. art. I, § 9, does not concern an individual’s
right to less punishment, but, rather, the lack of fair notice and govern-
mental restraint when the Legislature increases punishment beyond what
was prescribed when the crime was consummated.
11. Sentences: Time: Appeal and Error. If a court attempts on remand to
increase a sentence from that originally imposed, it should affirmatively
provide objective information concerning identifiable conduct on the
part of the defendant, occurring after the time of the original sentencing
proceeding, upon which any increased sentence is based.
Appeal from the District Court for Buffalo County: William
T. Wright, Judge. Sentence vacated, and cause remanded for
resentencing.
Aaron M. Bishop, Deputy Buffalo County Public Defender,
for appellant.
Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Wright, J.
I. NATURE OF CASE
On September 23, 2015, Cyrus H. Kantaras was convicted
of distribution of a controlled substance, marijuana, in viola-
tion 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 sentenc-
ing 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.
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II. BACKGROUND
1. Charge
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 con-
trolled substance, marijuana, in violation of § 28-416(1)(a), a
Class III felony.
2. Plea Agreement
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 proba-
tion. 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.
3. Presentence Investigation R eport
The presentence investigation report indicated that Kantaras
was previously convicted as a juvenile of minor in posses-
sion, 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 proba-
tion unsatisfactorily. Kantaras was sentenced to the care and
custody of the Office of Juvenile Services for the other con-
victions, which occurred subsequently to the uncontrollable
juvenile conviction.
4. Sentence
(a) Sentencing Hearing
The court pronounced its sentence at the sentencing hearing.
It expressed concern that Kantaras had a history of criminal
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conduct and that his record did not indicate Kantaras would
be very successful on probation. The court explained that it
was imposing probation, but with “fairly significant terms
and conditions.”
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 nonpre-
scribed 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 sentenc-
ing” was something hanging over Kantaras’ head for the entire
period of his probation. The court said:
By incremental sentencing, I mean this, you got 180 days
hanging over your head for the entire period of your pro-
bation. You screw up, you are going to get sanctioned.
You are going to serve some portion of that 180 days. It
might be a weekend, it might be a week, it might be a
month, it might be the entire 180 days, depending on how
badly you screw up.
But what I will tell you is this, if you screw up badly
enough, that is, you commit another significant crime,
most likely probation isn’t going to seek sanctions, they
are going it [sic] seek revocation. And if I revoke your
probation, we start over from square one as though
this hearing never happened, and most likely, you go
to prison.
Thus, the court explained that if Kantaras violated his pro-
bation “badly enough,” it was most likely that the Office of
Probation Administration would seek revocation of Kantaras’
probation rather than sanctions.
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(b) Sentencing Order
The court issued its sentencing order, which imposed 4 years
of probation.
(c) Commitment Order
The commitment order stated in relevant part:
[Kantaras] was sentenced by the Honorable William T.
Wright as follows: Serve 180 days in the Buffalo County
Detention Center with credit for 2 days. All service to
be incremental only on the recommendation of proba-
tion and the order of the Court. [Kantaras] will serve an
immediate 72-hour sanction for any positive test, curfew
violation, or failure/refusal to test.
5. Jail Time as Condition of Probation
Under § 29-2262(2)(b)
The confines of probation are set forth in the Nebraska
Probation Administration Act (the Act),1 which has twice been
recently amended. It was amended on August 30, 2015, after
Kantaras’ crimes but before sentencing, by 2015 Neb. Laws,
L.B. 605. It was again amended during the pendency of this
appeal, on April 19, 2016, by 2016 Neb. Laws, L.B. 1094.
(a) General Conditions of Probation
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 of a sentence of probation, require
[of] the offender.” Those conditions include things such as
undergoing psychiatric treatment,2 undergoing vocational
1
See Neb. Rev. Stat. §§ 29-2246 to 29-2269 (Reissue 2008, Cum. Supp.
2014 & Supp. 2015) and 2016 Neb. Laws, L.B. 1094, §§ 20 to 22.
2
§ 29-2262(2)(e).
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training,3 refraining from frequenting unlawful or disreputable
places or consorting with disreputable persons,4 and possess-
ing no firearms.5
(b) Jail Time as Part of
Sentence of Probation
Section 29-2262(2)(b) also sets forth, as a condition of pro-
bation, 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 proba-
tion. Section 29-2262(2)(b) was changed by both L.B. 605 and
L.B. 1094.
(i) Jail Time as Condition of
Probation Before L.B. 605
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.
(ii) Jail Time as Condition of
Probation Under L.B. 605
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,
3
§ 29-2262(2)(f).
4
§ 29-2262(2)(h).
5
§ 29-2262(2)(i).
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Cite as 294 Neb. 960for 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 pro- vided 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.”
(iii) Jail Time as Condition of
Probation After L.B. 1094
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 con-
victed of felonies and those convicted of misdemeanors.
L.B. 1094 also added new subsections (3) and (4) to
§ 29-2262, which now provide:
(3) When jail time is imposed as a condition of proba-
tion under subdivision (2)(b) of this section, the court
shall advise the offender on the record the time the
offender will serve in jail assuming no good time for
which the offender will be eligible under section 47-502
is lost and assuming none of the jail time imposed as a
condition of probation is waived by the court.
(4) Jail time may only be imposed as a condition of
probation under subdivision (2)(b) of this section if:
(a) The court would otherwise sentence the defendant
to a term of imprisonment instead of probation; and
(b) The court makes a finding on the record that,
while probation is appropriate, periodic confinement in
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the county jail as a condition of probation is necessary
because a sentence of probation without a period of con-
finement would depreciate the seriousness of the offend-
er’s crime or promote disrespect for law.
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.”
III. ASSIGNMENT OF ERROR
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 com-
mitment 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.
IV. STANDARD OF REVIEW
[1] Whether a condition of probation imposed by the sen-
tencing court is authorized by statute presents a question
of law.6
V. ANALYSIS
[2] We agree with the State that the district court commit-
ted 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.7 Plain error
may be found on appeal when an error, plainly evident from
the record, prejudicially affects a litigant’s substantial right
and, if uncorrected, would result in damage to the integrity,
reputation, and fairness of the judicial process.8 A sentence
6
State v. Lobato, 259 Neb. 579,611 N.W.2d 101
(2000).
7
State v. Samayoa, 292 Neb. 334,873 N.W.2d 449
(2015).
8
See id.
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that is contrary to the court’s statutory authority is an appropri-
ate matter for plain error review.9
[3-6] We begin with the principle that the power to define
criminal conduct and fix its punishment is vested in the leg-
islative branch, whereas the imposition of a sentence within
these legislative limits is a judicial function.10 Accordingly, a
sentence is illegal when it is not authorized by the judgment
of conviction or when it is greater or less than the permissible
statutory penalty for the crime.11 Likewise, when a court sen-
tences a defendant to probation, it may only impose conditions
of probation that are authorized by statute.12 The power of a
court to impose conditions of probation must be strictly con-
strued from the applicable statutes.13
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.
[7] We held in State v. Nuss14 that despite these general pro-
visions, the sentencing court has no power to impose a period
9
See, e.g., State v. Bartholomew, 258 Neb. 174,602 N.W.2d 510
(1999);
State v. Bensing, 249 Neb. 900,547 N.W.2d 564
(1996); State v. Rolling,
209 Neb. 243,307 N.W.2d 123
(1981).
10
State v. Stratton, 220 Neb. 854,374 N.W.2d 31
(1985).
11
State v. Alba, 13 Neb. App. 519,697 N.W.2d 295
(2005).
12
See State v. Escamilla, 237 Neb. 647,467 N.W.2d 59
(1991).
13
See, In re Interest of Dustin S., 276 Neb. 635,756 N.W.2d 277
(2008);
State v. Sundling, 248 Neb. 732,538 N.W.2d 749
(1995).
14
See State v. Nuss, 190 Neb. 755,212 N.W.2d 565
(1973). See, also, e.g.,
In re Interest of Dustin S., supra note 13.
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of imprisonment as a condition of probation in the absence of
a statutory provision specifically setting forth such power. At
the time Nuss was decided, the Legislature had not yet passed
the first version of § 29-2262(2)(b) that specifically allowed
jail time as a condition of probation. We held that unless there
is specific statutory authority to the contrary, a trial court may
not on the one hand grant probation and on the other hand
impose institutional confinement or a jail sentence as a condi-
tion of that probation.15
At the time Kantaras was sentenced, under the amend-
ments passed by L.B. 605, there was no statutory authority to
impose jail time as a condition of probation for felony offend-
ers. 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 “cus-
todial 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 vio-
lations by those persons sentenced to probation.16 Before
L.B. 605, there was no reference in the Act to jail time as
a sanction for a probation violation, as opposed to jail time
as part of the original sentences of probation. The Office of
Probation Administration was limited in its response to proba-
tion violations to seeking revocation of probation. The amend-
ments to the Act indicate the Legislature’s intent to allow for
intermediate measures to be taken by the Office of Probation
Administration before revocation is resorted to.17 The recent
15
State v. Nuss, supra note 14.
16
See §§ 29-2252(18) and 29-2266(7) and (8).
17
See L.B. 1094, § 22.
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amendments provide for detailed procedures by which these
custodial sanctions may be imposed.18 But a “custodial sanc-
tion” under these provisions is distinct from jail time under
§ 29-2262(2)(b).
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 imposing such sanctions as
part of Kantaras’ sentence. But the fact of the matter is that
180 days’ “incremental” jail time was pronounced as part of
Kantaras’ sentence and 180 days’ jail time was memorialized
in the commitment order.
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 sanc-
tions 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 pow-
ers 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”19), but it is a prede-
termined, periodic service of a definite term of jail time.
[8] In sum, at the time of sentencing, there was no statutory
authority to impose jail time, conditional or otherwise, as part
18
See id., §§ 21 and 22.
19
See State v. Salyers, 239 Neb. 1002, 1006,480 N.W.2d 173, 176
(1992).
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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.20 We must vacate that portion of the
sentence imposing jail time and remand the cause for resen-
tencing.21 This court has the power on direct appeal to remand
a cause for the imposition of a lawful sentence where an erro-
neous one has been pronounced.22
[9] We note that the version of § 29-2262 that controls
the court’s powers to resentence on remand is that provi-
sion 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 resen-
tencing under the doctrine elucidated in State v. Randolph,23
which requires that if the Legislature amends a criminal statute
by mitigating the punishment after the commission of a pro-
hibited act but before final judgment, the punishment is that
provided by the amendatory act unless the Legislature specifi-
cally provided otherwise.
At the time Kantaras committed the crime in question,
§ 29-2262(2)(b) permitted up to 180 days’ jail time for
20
See, e.g., State v. Thorpe, 280 Neb. 11,783 N.W.2d 749
(2010); State v.
Lee, 237 Neb. 724,467 N.W.2d 661
(1991); State v. Rolling,218 Neb. 51
,
352 N.W.2d 175(1984); State v. McDermott,200 Neb. 337
,263 N.W.2d 482
(1978); State v. Gaston,193 Neb. 259
,226 N.W.2d 355
(1975); State
v. Alba, supra note 11.
21
See id.
22
See, State v. Conover, 270 Neb. 446,703 N.W.2d 898
(2005); State v.
Mentzer, 233 Neb. 843,448 N.W.2d 409
(1989); McCormick v. State,71 Neb. 505
,99 N.W. 237
(1904).
23
State v. Randolph, 186 Neb. 297,183 N.W.2d 225
(1971). Accord, State
v. Duncan, 291 Neb. 1003,870 N.W.2d 422
(2015); State v.Bartholomew, supra note 9
.
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felony offenders. As amended by L.B. 1094, § 29-2262(2)(b)
permits only up to 90 days’ jail time for either felony or mis-
demeanor offenders. As pertains to jail time as a condition
of probation for felony offenders, L.B. 1094 mitigated the
punishment that was possible under the Act as it existed at the
time Kantaras committed the crime. All other provisions of
§ 29-2262 remained the same. And if a defendant appeals his
or her sentence, the sentence is not a final judgment until the
entry of a final mandate.24
Granted, § 29-2262(2)(b) as it existed at the time of Kantaras’
sentencing, provided for no jail time as a condition of proba-
tion 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. 1094.25
[10] 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.’”26 The Ex Post Facto
Clause does not concern an individual’s right to less punish-
ment, but, rather, the lack of fair notice and governmental
restraint when the Legislature increases punishment beyond
what was prescribed when the crime was consummated.27 At
the time Kantaras committed the crime, § 29-2262 allowed
up to 180 days’ determinate, but periodic, confinement in the
county jail as part of and as a condition of the felony offender’s
24
State v. Duncan, supra note 23.
25
See Breest v. Helgemoe, 579 F.2d 95 (1st Cir. 1978).
26
Johnson v. United States, 529 U.S. 694, 699,120 S. Ct. 1795
,146 L. Ed. 2d 727
(2000).
27
See Weaver v. Graham, 450 U.S. 24,101 S. Ct. 960
,67 L. Ed. 2d 17
(1981).
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sentence of probation. Now, § 29-2262(2)(b) allows up to only
90 days of such confinement. This is not an increase in punish-
ment from the punishment available at the time Kantaras com-
mitted the crime.
[11] On remand, the only constitutional restraint is that
the court not act vindictively in resentencing.28 If the court
attempts on remand to increase the sentence from that origi-
nally imposed, it should affirmatively provide objective infor-
mation concerning identifiable conduct on Kantaras’ part,
occurring after the time of the original sentencing proceeding,
upon which any increased sentence is based.29
Because we remand the cause for resentencing, we do not
address Kantaras’ excessive sentence argument.
VI. CONCLUSION
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 remand the cause for
resentencing in conformity with this opinion.
Sentence vacated, and cause
remanded for resentencing.
Stacy, J., concurs.
28
See, North Carolina v. Pearce, 395 U.S. 711,89 S. Ct. 2072
,23 L. Ed. 2d 656
(1969), overruled in part, Alabama v. Smith,490 U.S. 794
,109 S. Ct. 2201
,104 L. Ed. 2d 865
(1989); Bledsoe v. U.S.,384 F.3d 1232
(10th Cir.
2004); Breest v. Helgemoe, supra note 25; Com. v. Greer,382 Pa. Super. 127
,554 A.2d 980
(1989).
29
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