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Opinion 98013

DATE: February 17, 1998

SUBJECT: Determinate Sentences

REQUESTED BY: Harold W. Clarke, Director Nebraska Department of Correctional Services




WRITTEN BY: Don Stenberg, Attorney General

Laurie Smith Camp, Deputy Attorney General






You have asked several questions about the proper

interpretation of determinate sentences. A determinate or "flat"

sentence states only one term of years. An indeterminate sentence

includes a maximum term to be used to compute the defendant's

discharge date, and a minimum term to be used to compute the

defendant's parole eligibility date.




Before addressing your questions, we will summarize the recent

statutory changes affecting determinate and indeterminate

sentencing in Nebraska.




In 1972, the Nebraska legislature amended Neb. Rev. Stat. §

83-1,105 to mandate indeterminate sentencing by operation of law.

See Laws 1972, LB 1499, § 5. The statute provided:




Except where a term of life is required by law, in

imposing an indeterminate sentence upon the offender, the

court may:


(1) Fix the minimum and maximum limits of the sentence,

but the minimum fixed by the court shall not be less than

the minimum provided by law nor more than one-third of

the maximum term, and the maximum limit shall not be

greater than the maximum provided by law;




(2) Impose a definite term of years in which event the

maximum term of the sentence shall be the term imposed by

the court and the minimum term shall be the minimum

provided by law[.]




Under this statute, if a judge attempted to impose a

determinate sentence, the statutory minimum was automatically used

to determine the inmate's parole eligibility.




LB 529, known as Nebraska's "Truth in Sentencing" legislation,

was enacted effective September 9, 1993. LB 529 repealed § 83-

1,105 and replaced it with an amended § 29-2204, which read as

follows:




(1) Except when a term of life is required by law, in

imposing an indeterminate sentence upon an offender the

court shall:




(a) Fix the minimum and maximum limits of the sentence to

be served within the limits provided by law, except that

when a maximum limit of life is imposed by the court for

a Class IB felony, the minimum limit may be any term of

years not less than the statutory mandatory minimum;




(b) Advise the offender on the record the time the

offender will serve on his or her minimum term before

attaining parole eligibility assuming that no good time

for which the offender will be eligible is lost; and




(c) Advise the offender on the record the time the

offender will serve on his or her maximum term before

attaining mandatory release assuming that no good time

for which the offender will be eligible is lost.




If any discrepancy exists between the statement of

the minimum limit of the sentence and the statement of

parole eligibility or between the statement of the

maximum limit of the sentence and the statement of

mandatory release, the statements of the minimum limit

and the maximum limit shall control the calculation of

the offender's term. If the court imposes more than one

sentence upon an offender or imposes a sentence upon an

offender who is at that time serving another sentence,

the court shall state whether the sentences are to be

concurrent or consecutive.




The legislative history of LB 529 makes clear the fact that

the bill was designed to eliminate indeterminate sentencing by

operation of law. When introducing LB 529 before the Judiciary

Committee on February 25, 1993, the principal sponsor, Senator

Carol Pirsch, said:




This bill would provide for truth in sentencing....The

general public, I don't think, has a clear idea of the

amount of time that a sentenced offender is likely to

spend in custody. I believe the public and victims of

crime have a right to know that the sentence that is

pronounced by a court and the sentence which an inmate

will actually serve are two very different things....How

this would work and why I believe this is needed is

perhaps best understood by an example. Assume that you

read in the newspaper that as a victim of a convicted

rapist you saw him sentenced to 50 years in prison with

no minimum sentence specified. Most people probably

would think that sounds like a pretty tough sentence.

However, under Nebraska law that offender would be

eligible for parole in just six months....I don't think

anyone could sincerely argue that our present system

fully discloses the actuality of sentencing punishment in

our state. It's deceptive. We prohibit deceptive trade

practices and deceptive advertising, and I believe it's

time we have full disclosure in sentencing.




In 1997, the Nebraska legislature enacted LB 364, with an

operative date of July 1, 1998. LB 364 reinstates indeterminate

sentencing by operation of law with the following language:




Except where a term of life is required by law, in

imposing an indeterminate sentence upon an offender the

court shall:




(1) Fix the minimum and maximum limits of the

sentence to be served within the limits provided by law

for any class of felony other than a Class IV felony,

except that when a maximum limit of life is imposed by

the court for a Class IB felony, the minimum limit may be

any term of years not less than the statutory mandatory

minimum. If the criminal offense is a Class IV felony,

the court shall fix the minimum and maximum limits of the

sentence, but the minimum limit fixed by the court shall

not be less than the minimum provided by law no more than

one-third of the maximum term and the maximum limit shall

not be greater than the maximum provided by law.




(2) Impose a definite term of years, in which event

the maximum term of the sentence shall be the term

imposed by the court and the minimum term shall be the

minimum sentence provided by law[.]




The present authority of Nebraska courts to impose determinate

sentences was recognized by the Nebraska Supreme Court in State v.

Cook, 251 Neb. 781 (1997), and by the Nebraska Court of Appeals in

State v. DuBray, 5 Neb. App. 496 (1997). In Cook, the defendant

received a life sentence for first degree murder and a sentence of

20 years to 20 years for use of a firearm to commit a felony. The

Court said: "The Nebraska sentencing statutes do not require that

the minimum sentence be for a different term than the maximum

sentence. Nor do the statutes require that an indeterminate

sentence be issued in this case. Cook, 251 Neb. at 782-83,

emphasis added. In DuBray, the defendant received a sentence of

"not less than four nor more than four years' imprisonment". The

Court of Appeals noted that:




Nothing in § 29-2204 mandates that an indeterminate

sentence be imposed.

. . . .

Current statutes also do not provide a minimum sentence

when a definite term of years is imposed by the

sentencing court.

. . . .

In addition, the language used in the statutes found in

Chapter 83 regarding the determination of credits for

time served and the determination of dates for parole and

full discharge does not require indeterminate sentencing

in the sense that the maximum and minimum terms must

differ or that there must be a minimum term imposed. In

particular, Neb. Rev. Stat. § 83-1,106 (1) and (2)

(Reissue 1994) speaks of [c]redit against the maximum

term and any minimum term[.].




DuBray, 5 Neb. App. at 500-01, emphasis added.




Although decisions of the Court of Appeals may have limited

use as precedent, the DuBray decision appears to be consistent with

the Nebraska Supreme Court's holding in Cook. Therefore, we con-

clude that Nebraska courts have had the authority to impose

determinant sentences since September 9, 1993 (and until July 1,

1998).




You have asked six questions regarding the application of

Nebraska's sentencing statutes and the DuBray decision.




1. "Should this court decision be applied to all similarly

situated inmates currently incarcerated and/or on parole? If so,

what effect would this case have on inmates currently on parole

that are not eligible for parole?"




ANSWER: Inmates who received determinant sentences for crimes

committed on and after September 9, 1993, have no parole

eligibility. So, any such inmates who have been placed on parole

would be subject to parole recision proceedings due to the error in

the calculation of their sentences.




2. "Does this decision require that all flat sentences be

treated as sentences with no minimum terms? By statute, parole

eligibility is based on the minimum term. Does this mean that on

flat sentences there is no minimum term, and, therefore, no parole

eligibility date? Would these inmates be required to serve their

maximum prison term, less good time reductions, without the benefit

of any parole consideration? For example the majority of sentences

received for terms of imprisonment for up to two years rarely

impose minimum terms. Most of these terms are for Class IV

felonies or misdemeanor cases. Would parole eligibility also be

eliminated on these sentences?"




ANSWER: With respect to inmates given determinant sentences

for crimes committed on and after September 9, 1993, the answer to

all of the above questions is "yes."




3. "If a person was sentenced to a term of life imprisonment

for second degree murder (Class IB felony), would this individual

in essence be serving a life term without any minimum term, and

therefore, no parole eligibility date?"




ANSWER: With respect to inmates given a determinant sentence

of life imprisonment for a second degree murder committed on or

after September 9, 1993, the answer to the above question is "yes."




4. "On flat sentences, do truth-in-sentencing comments

regarding the amount of time to be served toward parole eligibility

override the imposition of a flat sentence that does not have a

parole eligibility date?"




ANSWER: Section 29-2204 (1)(c) provides:




If any discrepancy exists between the minimum limit of

the sentence of the statement of parole eligibility or

between the statement of the maximum limit of the

sentence and the statement of mandatory release, the

statements of the minimum limit and the maximum limit

shall control the calculation of the offender's term.




So, if a court acting on or after September 9, 1993, imposed

a determinant sentence, any statements made regarding parole

eligibility would not be controlling. It would be the

responsibility of the defendant to bring the discrepancy to the

attention of an appellate court as was done in State v. Wilson, 4

Neb. App. 489 (1996), to obtain a reversal and remand for re-

sentencing to clarify.




5. "The truth-in-sentencing statute became effective on

September 9, 1993. Would this court decision apply to all inmates

sentenced on or after September 9, 1993, or would it apply only to

inmates who committed their crimes on or after September 9, 1993?"




ANSWER: The Nebraska Constitution, like the federal

Constitution, prohibits the enactment of ex post facto laws. See

U.S. Const. art. I, § 10, c1.1; Neb. Const. art. I, § 16. A

criminal law is ex post facto if it inflicts a greater punishment

than the law which was applicable at the time the crime was

committed. Weaver v. Graham, 450 U.S. 24 (1981). In Weaver, the

U.S. Supreme Court declared that a more restrictive good time law

could not be applied to inmates who committed their offenses before

the effective date of the law, even though they were sentenced

after the effective date. The Court declined to draw a distinction

between criminal sentences and benefits such as good time which

traditionally had been reviewed as acts of legislative "grace."

The Court said:




[A] law need not impair a `vested right' to violate the

ex post facto prohibition.

. . . .

The presence or absence of an affirmative, enforceable

right is not relevant...to the ex post facto prohibition,

which forbids the imposition of punishment more severe

than the punishment assigned by law when the act to be

punished occurred. Critical to relief under the Ex Post

Facto Clause is not an individual's right to less

punishment, but the lack of fair notice and governmental

restraint when the legislature increases punishment

beyond what was prescribed when the crime was

consummated. Thus, even if a statute merely alters penal

provisions accorded by the grace of the legislature, it

violates the Clause if it is both retrospective and more

onerous than the law in effect on the date of the

offense.

. . . .

The critical question is whether the law changes the

legal consequences of acts completed before its effective

date.




Weaver, 450 U.S. at 29-31.




In California Dept. of Corrections v. Morales, 115 S.Ct. 1597

(1995), the Supreme Court did find that a mere change in the

frequency of parole board hearings was not sufficient to violate

the Ex Post Facto Clause because there was no reason to conclude

that the change would extend or have any effect on a prisoner's

actual term of confinement. Morales, 115 S.Ct. at 1604-05. In

light of the reasoning of the U.S. Supreme Court in Weaver and

Morales, we must conclude that determinate sentences under LB 529

may be applied only to inmates who committed their crimes on or

after September 9, 1993.




6. "If this court decision must be applied, what effect

would this action have on determining parole eligibility dates in

the following circumstances?




a. Concurrent sentences: There are instances in which

inmates are serving concurrent terms where some counts are flat

sentences and other counts are indeterminate sentences. At what

point does an inmate become eligible for parole on the concurrent

indeterminate sentence?




b. Consecutive sentences: There are instances in which

inmates are serving indeterminate sentences and then receive a

consecutive flat sentence. Nebraska statutes require that the

minimum and maximum terms be added together to establish parole

eligibility and discharge date on the combined terms. If there is

no minimum term on a flat sentence, at what point would an inmate

be eligible for parole on the consolidated term?"




ANSWER: (a). If an inmate is serving concurrent terms, and

some of the sentences are determinant while others are

indeterminate, the inmate would not be eligible for parole until

completing the longest determinant sentence and reaching parole

eligibility on the longest minimum term of the indeterminate

sentences.




(b). With respect to consecutive sentences, it is

recognized that Neb. Rev. Stat. § 83-1,110 (Cum. Supp. 1996)

provides:




[E]very committed offender sentenced to consecutive

terms, whether received at the same time or at any time

during the original sentence, shall be eligible for

release on parole when the offender has served the total

of one-half the minimum terms. The maximum terms shall

be added to compute the new maximum term which, less good

time, shall determine the date when discharge from

custody becomes mandatory.




It is also recognized that Neb. Rev. Stat. § 83-170 (9)(1994)

provides:




Minimum term shall mean the minimum sentence provided by

law or the minimum sentence imposed by a court, whichever

is longer.




The origin of these statutes dates back to an era when

Nebraska's systems of sentencing, good time, and parole were very

different. See Laws 1969, c.817, § 1, p. 3072, and § 41 p. 3093.

It is a challenging task to interpret these sections in complete

harmony with LB 529, which reflects the more recent intent of the

legislature.




Basic principles of statutory construction established by the

Nebraska Supreme Court require that we (1) look at the statutory

objective to be accomplished, problem to be remedied, or purpose to

be served, and then place on the statute a reasonable construction

which best achieves its purpose, rather than a construction that

will defeat the purpose; and (2) conjunctively consider and

construe all statutory components to determine the intent of the

legislature, so that different provisions are consistent,

harmonious and sensible. See, e.g., State v. Joubert, 246 Neb. 287

(1994); Anderson v. Nashua Corp., 246 Neb. 420 (1994); and In Re

Guardianship & Conservatorship of Bloomquist, 246 Neb. 711 (1994).


If we interpret these statutes to require the consolidation of

consecutive determinate and indeterminate sentences, by creating

fictional "minimum terms" for the determinate sentences, that

interpretation would conflict with LB 529 and the Cook and DuBray

decisions. A determinate sentence does not have a minimum term

equal to the statutory minimum, nor does it have a minimum term of

"zero" or of "infinity." Under current law, a determinant sentence

also is not the same as an indeterminate sentence with minimum and

maximum terms of the same length. For example, an inmate who

received a determinant sentence of ten years would never be

eligible for parole. If the inmate forfeited all good time, the

inmate would be required to serve ten years. An inmate who

received an indeterminate sentence of ten years to ten years would

be eligible for parole after serving five years, even if the inmate

forfeited all good time. (Using good time laws effective July 1,

1996, pursuant to Laws 1995, LB 371).




Therefore, we suggest that § 83-1,110 and § 83-170(9) be

interpreted to apply only to indeterminate sentences created by

court order, or by operation of law outside the effective dates of

LB 529. If an inmate becomes eligible for parole on the

consolidated minimum terms of indeterminate sentences which the

inmate began to serve before receiving the determinate sentence,

and the Parole Board wishes to "parole" the inmate to serve the

determinant sentence, the Parole Board may do so, just as the Board

may parole an inmate to serve a consecutive term in another

jurisdiction. In this manner, the inmate does not lose the benefit

of parole eligibility on the indeterminate sentences (as would

occur if a minimum term of "infinity" was inferred from a

determinate sentence), and the integrity of the determinate

sentence is not lost (as would occur if a minimum term equal to the

statutory minimum, "zero", or the court-imposed sentence, was

inferred from a determinate sentence).




Sincerely,




DON STENBERG

Attorney General








Laurie Smith Camp

Deputy Attorney General