Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/04/2017 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JACKSON
Cite as 297 Neb. 22
State of Nebraska, appellee, v.
Earnest D. Jackson, appellant.
___ N.W.2d ___
Filed June 23, 2017. No. S-16-506.
1. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
3. Constitutional Law: States: Minors: Convictions: Sentences:
Probation and Parole. It is unconstitutional for a state to impose a
sentence of life imprisonment without parole on a juvenile convicted of
a nonhomicide offense.
4. Minors: Convictions. Juvenile offenders convicted of nonhomicide
crimes must be given some meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.
5. Minors: Convictions: Homicide: Sentences. In Miller v. Alabama, 567
U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), the U.S. Supreme
Court declined to extend a categorical bar of no life-without-parole sen-
tences to juveniles convicted of homicide.
6. Minors: Sentences. A sentencer must take into account how children
are different and how those differences counsel against irrevocably sen-
tencing them to a lifetime in prison.
7. Constitutional Law: States: Courts: Time: Appeal and Error. When
a new substantive rule of constitutional law controls the outcome of a
case, the federal Constitution requires state collateral review courts to
give retroactive effect to that rule.
8. Minors: Convictions: Homicide: Sentences. A juvenile offender con-
victed of a homicide offense may be sentenced to life imprisonment
without parole so long as the sentencer considered specific, individual-
ized factors before handing down that sentence.
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Nebraska Supreme Court A dvance Sheets
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STATE v. JACKSON
Cite as 297 Neb. 22
9. Sentences: Judgments. The appropriateness of a sentence is necessarily
a subjective judgment and includes the sentencing judge’s observations
of the defendant’s demeanor and attitude and all of the facts and circum-
stances surrounding the defendant’s life.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
Jeffery A. Pickens, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Funke, J.
NATURE OF CASE
In 2000, a jury found Earnest D. Jackson guilty of first
degree murder but acquitted him of the use of a deadly weapon
charge. The court sentenced him to life imprisonment for the
first degree murder conviction. On direct appeal, we affirmed
Jackson’s conviction and sentence.1
This is Jackson’s appeal from the district court’s order
resentencing him for his first degree murder conviction. At
the time of the crime, Jackson’s age was 17 years 10 months.
The resentencing was required under the U.S. Supreme Court’s
decisions in Miller v. Alabama 2 and Montgomery v. Louisiana 3
and this court’s decision in State v. Mantich.4 Following a full
evidentiary hearing and arguments, Jackson was resentenced
1
State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002).
2
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407
(2012).
3
Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193 L. Ed. 2d 599
(2016).
4
State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 (2014).
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STATE v. JACKSON
Cite as 297 Neb. 22
in accordance with Nebraska statutes. Jackson appeals his
resentencing. We affirm.
FACTS
Facts of Crime and Direct A ppeal
In Jackson’s direct appeal, we set forth the facts upon which
his conviction was supported. On August 31, 1999, Robert
Sommerville, Shawon McBride, Dante Chillous, and Jackson
were riding in a gray Cadillac, without a particular destination.
They ended up near the Redman Apartments, where they con-
versed in the parking lot with a group of people. Sommerville
testified that they spoke with Shalamar Cooperrider, then fol-
lowed Cooperrider to his aunt’s house, where Chillous and
Jackson got out of the car. At some point, McBride picked up
Cooperrider and Jackson at Jackson’s house and dropped them
off at an alley a block south of Redman Avenue.
Lance Perry resided in an apartment located at 4614 Redman
Avenue with his mother, Margaret Parrott, and his sister
Elizabeth Williams. On the evening of August 31, 1999, Parrott
and Perry were outside the apartment until Parrott went inside
at 11:30 p.m. Perry stayed outside with Elexsis Fulton.
While Perry and Fulton were still outside, Cooperrider
approached Perry and the two began talking. Fulton, who had
never met Cooperrider before that night, described him as
“light brown” with a brush haircut, wearing a tan shirt and tan
pants. During the conversation, two more men, whom Fulton
described, respectively, as light-skinned with a ponytail and
dark-skinned with braided hair and a blue “FUBU” brand shirt,
came out of the apartment building one door north of Perry’s
door. At trial, Fulton identified the ponytailed man as Chillous
and the man with braids and a FUBU shirt as Jackson. The
jury received other testimony that Jackson did not have his
hair in braids, but that Chillous wore his hair in a ponytail.
Fulton observed Jackson, Cooperrider, and Chillous leave the
Redman Apartments in a gray Cadillac after Cooperrider’s
conversation with Perry.
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STATE v. JACKSON
Cite as 297 Neb. 22
After the Cadillac departed, Perry entered his apartment and
retrieved a .22-caliber Ruger handgun. Parrott and Williams
followed Perry out of the apartment, and Parrott observed
Perry bending down beside a bush by 4612 Redman Avenue,
the apartment building opposite 4614 Redman Avenue. Parrott
reentered the apartment.
Fulton testified that the gray Cadillac returned later that
evening and that Jackson, Cooperrider, and Chillous got out
of the Cadillac. Fulton further testified that Cooperrider had
changed from tan clothing to black clothing. Fulton observed
the three men approach Perry, at which time, Cooperrider
and Perry began arguing. Chillous and Jackson went across
the street to Chillous’ home, and on their way back, Fulton
saw Chillous try to hand Cooperrider a gun. Fulton testified
that Jackson got involved in the argument, then pulled out a
gun and struck Perry in the head three times. Fulton then ran
inside the building and continued to watch from an upstairs
window. Fulton testified that Chillous was the first to fire a
gun and that he saw Perry being shot in the back while lying
on his stomach.
Fulton testified at Jackson’s trial that he had no doubt
that Jackson shot Perry. Fulton had not known the names of
Jackson, Chillous, or Cooperrider before bystanders (who had
not witnessed the shooting) told Fulton the names of the three
men. Jackson’s counsel read into evidence Fulton’s testimony
from the preliminary hearing that Fulton had learned Jackson’s,
Cooperrider’s, and Chillous’ names from the police. Fulton tes-
tified that he had identified Jackson, Cooperrider, and Chillous
at the preliminary hearing as the men who shot Perry. Fulton
had not previously identified Jackson in a photographic or
police lineup.
Parrott heard 20 to 30 shots that sounded as if they were com-
ing from different types of guns at different distances; Williams
testified that the sound resembled firecrackers. Parrott and
Williams ran outside after hearing gunshots and found Perry
on the sidewalk with bullet wounds in his stomach. Parrott
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STATE v. JACKSON
Cite as 297 Neb. 22
removed a gun from Perry’s belt and gave it to Williams, tell-
ing her to get rid of it. Parrott testified that when she removed
Perry’s gun by the handle, it was not warm.
Williams testified to seeing a man, dressed in black with
dark skin and a brush haircut, fleeing the scene after Perry’s
shooting, but she did not know and could not identify Jackson.
McBride also testified that he saw a man in black firing a gun,
standing by the bushes located near 4612 Redman Avenue.
Although McBride did not see the shooter’s face, he stated that
the shooter wore the same kind of clothing Cooperrider had
been wearing. McBride confirmed that he had seen Jackson
with Cooperrider shortly before the shooting.
Jackson’s aunt testified that at 11:19 p.m. on August 31,
1999, Jackson knocked on her door, entered her home, talked
with her, and went into her basement around 11:30 p.m. to
play a video game. Approximately 20 minutes later, Jackson’s
cousin knocked on the aunt’s bedroom door to get the cordless
telephone and asked her if she had heard gunshots. She had
not. Jackson’s aunt and cousin testified that Jackson had stayed
at the aunt’s home that night.
Officer Harold Scott of the Omaha Police Department
arrived at the scene of the shooting at approximately 12:30
a.m. and discovered Perry’s body on the sidewalk in front
of 4614 Redman Avenue, surrounded by a crowd of people.
Omaha police officer Stefan Davis, upon nearing the scene of
the murder, was notified of people who had fled the area. Later,
Davis received notification that all suspects were in custody.
Jackson, however, was not arrested until October 9, 1999.
Dr. Jerry Jones, who performed the autopsy, determined
that Perry died of multiple gunshot wounds that perforated his
heart, both lungs, liver, spleen, colon, and kidney. Jones testi-
fied that he had examined Perry’s body thoroughly and that he
did not see abrasions on Perry’s head or scalp.
Identical informations were filed against Jackson,
Cooperrider, and Chillous in Douglas County District Court,
charging each of them with first degree murder and use of
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STATE v. JACKSON
Cite as 297 Neb. 22
a deadly weapon during the commission of a felony in the
death of Perry. The cases were consolidated for trial on the
State’s motion, but the district court subsequently vacated this
order on the State’s motion. Jackson’s trial, having the low-
est docket number, began first, followed by Cooperrider’s and
Chillous’ trials.
The jury found Jackson guilty of first degree murder, but
acquitted him of using a deadly weapon to commit a felony.
Jackson then filed a motion for new trial, claiming that
Fulton’s testimony regarding Cooperrider and Chillous did not
have proper foundation, that the jury’s verdict was inconsist
ent and self-contradictory, that the court addressed the jury
outside the parties’ presence after the jury retired for delib-
erations, and that there was insufficient evidence to sustain a
conviction of first degree murder. The district court overruled
Jackson’s motion and sentenced him to life imprisonment.
Further facts surrounding Perry’s shooting are set forth below
as necessary.
At Cooperrider’s own trial, he testified that he was pres-
ent at the scene, that he fired his handgun several times in
self-defense, and that he did not see Jackson at the scene.
Cooperrider also testified that Jackson was not one of the
people who shot Perry. Instead, Cooperrider testified that
Sommerville and one of Sommerville’s friends were present at
Perry’s shooting. Cooperrider testified that Sommerville wore
his hair in braids at the time of Perry’s death, in a hairstyle
similar to Jackson’s. At Chillous’ trial, Cooperrider again testi-
fied that Sommerville and a friend of Sommerville’s were pres-
ent at the scene of Perry’s shooting, but he did not see Jackson
or anyone else at the scene. Juries acquitted both Cooperrider
and Chillous.
Stephen Kraft, Cooperrider’s attorney, submitted an affi-
davit stating that prior to Jackson’s trial, Jackson’s counsel
contacted Kraft to inform Kraft of his intent to subpoena
Cooperrider as a witness on Jackson’s behalf for Jackson’s trial.
Kraft informed Jackson’s counsel that because Cooperrider
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STATE v. JACKSON
Cite as 297 Neb. 22
was awaiting trial on identical charges in the same matter,
he would not be willing to testify and would invoke his Fifth
Amendment right against self-incrimination and refuse to tes-
tify if called. Jackson served Kraft with a subpoena directing
Cooperrider’s presence as a witness at Jackson’s trial, but
Kraft again advised Jackson’s counsel that Cooperrider would,
if called, invoke his right against self-incrimination.
Jackson filed a second motion for new trial, alleging that
Cooperrider’s testimony from Cooperrider’s and Chillous’
trials provided new evidence that would have changed the
jury’s verdict in Jackson’s trial. The district court overruled
Jackson’s motion for new trial, finding that Cooperrider’s
testimony was not newly discovered, but only newly avail-
able—Cooperrider merely controlled the dissemination of his
testimony for tactical reasons. In its order, the district court
referred to telephone conversations in which Cooperrider
discussed coordinating his testimony with Chillous and other
witnesses testifying at Chillous’ trial. The district court con-
cluded that even if Cooperrider’s testimony had been pre-
sented at Jackson’s trial, the jury still heard sufficient evi-
dence to convict Jackson.
In Jackson’s direct appeal, this court rejected his argument
that the jury’s verdicts were contradictory and inconsistent. We
concluded that under the aiding and abetting instruction, which
accurately stated the law and to which Jackson did not object,
the jury could find that Jackson was guilty of first degree mur-
der while also finding that he “did not personally fire a deadly
weapon.”5 We also rejected his argument that the evidence was
insufficient to support his conviction. Jackson contended that
because investigators had found bullet casings from locations
that showed Perry was shot from multiple angles and because
the autopsy showed no bruising or abrasion on Perry’s head,
Fulton’s account of the crime was not accurate and Fulton
had changed his testimony. However, we characterized his
5
Jackson, supra note 1, 264 Neb. at 432, 648 N.W.2d at 292.
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STATE v. JACKSON
Cite as 297 Neb. 22
argument as attacking the witnesses’ credibility and rejected it.
We recited evidence that the location of bullet casings could
not conclusively prove a gun had been fired from that same
location, that Perry did have an abrasion under his left eye, and
that Fulton was sure Jackson had shot Perry.
Finally, we concluded that Cooperrider’s subsequent excul-
patory testimony was not newly discovered evidence. Instead,
it was newly available evidence that did not provide a basis
for a new trial. We agreed with the Ninth Circuit that allowing
a new trial so a codefendant could testify after the govern-
ment could no longer retry the codefendant would encourage
perjury.6 We also reasoned that Jackson knew Cooperrider’s
testimony would have been beneficial to him or he would not
have attempted to secure it. We cited many cases in which
courts have held that the posttrial testimony of a codefendant
or coconspirator who refused to testify at the defendant’s trial
is not newly discovered evidence.7
Postconviction and R esentencing
In Jackson’s operative postconviction motion, he sought
an order vacating the judgment of conviction and sentencing,
because the orders were void or voidable under the U.S. and
Nebraska Constitutions. He alleged that his trial attorney was
ineffective for several reasons, including his failure to object
to arguments or evidence about gang affiliations and activities.
6
Jackson, supra note 1, citing U.S. v. Reyes-Alvarado, 963 F.2d 1184 (9th
Cir. 1992).
7
Id., citing U.S. v. Freeman, 77 F.3d 812 (5th Cir. 1996); U.S. v.
Theodosopoulos, 48 F.3d 1438 (7th Cir. 1995); U.S. v. Muldrow, 19 F.3d
1332 (10th Cir. 1994); U.S. v. Dale, 991 F.2d 819 (D.C. Cir. 1993); Reyes-
Alvarado, supra note 6; State v. Bright, 776 So. 2d 1134 (La. 2000); State
v. Warren, 592 N.W.2d 440 (Minn. 1999); State v. Redford, 248 Kan. 130,
804 P.2d 983 (1991); Yarbrough v. State, 57 S.W.3d 611 (Tex. App. 2001);
State v. Dunlap, 187 Ariz. 441, 930 P.2d 518 (Ariz. App. 1996); State v.
Jackson, 188 Wis. 2d 187, 525 N.W.2d 739 (Wis. App. 1994). But see,
U.S. v. Montilla-Rivera, 115 F.3d 1060 (1st Cir. 1997); Totta v. State, 740
So. 2d 57 (Fla. App. 1999).
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STATE v. JACKSON
Cite as 297 Neb. 22
But Jackson’s primary argument was that he was effectively
sentenced to life without parole for a crime that occurred when
he was 17 years old and that this sentence was prohibited
by the Eighth Amendment to the U.S. Constitution and Neb.
Const. art. I, § 9.
In August 2015, the district court overruled all of Jackson’s
claims except his request for relief under Miller 8 and Mantich.9
At the postconviction hearing, the court received evidence
that Jackson was born in October 1981; thus, he was age 17
years 10 months when Perry was killed on August 31, 1999.
In October 2015, the court issued an order vacating Jackson’s
life sentence and scheduled a new sentencing hearing for
January 2016.
At the January mitigation hearing, Jackson presented the
testimony of Kayla Pope, who is an attorney, a board-certified
child and adolescent psychiatrist, and an expert in adolescent
brain development. A deposition Pope gave in State v. Smith,
Washington County District Court, No. CRl3-9000001, was
also received at Jackson’s mitigation hearing.
Pope testified that she was the director for neurobehavioral
research at Boys Town National Research Hospital and the
program director for the general psychiatric training program
at Creighton Medical Center and the University of Nebraska
Medical Center.
Though she had not met with Jackson, Pope testified gener-
ally about brain development and how researchers had learned
that the brain develops over time, with the last part of the
brain to develop being the frontal cortex. She said that the pre-
frontal cortex is the part of the brain that controls impulsivity
and emotional responses and that it is not fully developed
in individuals until they reach their mid-20’s. Consequently,
adolescents are more likely to be impulsive and respond emo
tionally instead of rationally, especially in an emotionally
8
See Miller, supra note 2.
9
Mantich, supra note 4.
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charged situation. They often fail to appreciate the conse-
quences of their actions. And because they are seeking to indi-
viduate from their parents, adolescents seek approval from
their peer group, which makes them more susceptible to peer
influence in their decisionmaking than adults.
Kirk Newring, a licensed psychologist, performed a foren-
sic psychological evaluation of Jackson shortly before Jackson
reached age 34. In conducting Jackson’s examination, Newring
attempted to address the following mitigating factors, which
are set forth in Neb. Rev. Stat. § 28-105.02(2) (Reissue 2016):
(a) The convicted person’s age at the time of the
offense;
(b) The impetuosity of the convicted person;
(c) The convicted person’s family and community
environment;
(d) The convicted person’s ability to appreciate the
risks and consequences of the conduct; [and]
(e) The convicted person’s intellectual capacity[.]
In addition to considering the statutory sentencing factors
for offenders under age 18, Newring performed a risk assess-
ment for future violence.
During the evaluation, Jackson denied being abused or
neglected as a child and he said he had a typical childhood
with a young mother and a strong family. A family friend told
Newring that Jackson had a mother and stepfather and good
support growing up but that he got in with the wrong crowd.
Jackson denied having been in a gang but said that he was
around gang people. He did not earn any school credits past
the 8th grade and was expelled from school in the 10th grade.
At age 17, he was placed at the Youth Rehabilitation and
Treatment Center in Kearney, Nebraska, after he violated his
parole for being a minor in possession of a handgun. He appar-
ently violated his parole by being in possession of a stolen
vehicle. He was paroled in May 1999.
An initial classification report from the Department of
Correctional Services completed in 2000 stated that Jackson
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was believed to be involved in bullying other inmates and
characterized him as evasive, having the potential to “assume
a negative leadership role” and to continue to be involved in
altercations with others.
Newring’s report summarized Jackson’s misconduct reports.
Jackson had approximately 250 misconduct reports as of
November 5, 2015. Notably, Jackson had several violations
for drug or intoxicant abuse. Jackson had 25 misconduct
reports which resulted in a sanction of disciplinary segrega-
tion, including threats or fighting, stepping on a staff member’s
foot, and minor physical contact with staff which was acci-
dental. The majority of Jackson’s misconduct reports occurred
before reaching age 25. After age 30, he had about 20 mis-
conduct reports. At the mitigation hearing, Newring testified
that a comparison of the number of misconduct reports during
Jackson’s first 5 years of incarceration to his most recent 5
years “suggests maturing.”
Based on psychological testing, Newring found no indi-
cations that Jackson suffered from a major mental disorder.
But Newring diagnosed him as having personality disorders,
including adjustment disorder with anxiety, cannabis use dis-
order in a controlled environment, and antisocial personality
disorder. Newring stated that Jackson will meet the criteria
for cannabis use disorder until he has demonstrated sobriety
in a community setting and that he met the criteria for anti-
social personality disorder because of his early childhood
misbehavior, rules violations as an adolescent, and institu-
tional misbehavior as a young adult. He stated that Jackson’s
improved behavior was consistent with research showing that
antisocial behavior reduces in an individual’s late 30’s to
early 40’s.
Newring further noted that since being incarcerated, Jackson
earned his diploma through the GED program in 2008. Jackson
also completed several programs, including “Criminal and
Addictive Thinking I [and II]” on October 7 and December 12,
2014; “Group Process” on October 2, 2014; “Recovery Issues
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I [and II]” on October 6 and December 9, 2014; “Within My
Reach Relationship and Communication Program” on October
15, 2014; “Relapse Prevention I [and II]” on December 9,
2014, and February 9, 2015; “Special Issues” on February 10,
2015; “Long Term Residential Substance Abuse Treatment
Program” on February 11, 2015; “Most Improved” in the sub-
stance abuse unit from December 2014 through February 2015;
“Psychology of Incarceration” on February 10, 2015; “Character
& Paradigms Class” in February 2015; and “Common Sense
Parenting” on April 15, 2015.
After he completed the substance abuse program, Jackson
was asked to participate as a mentor, because he was a positive
role model. Although his discharge summary from the program
stated that he might relapse if released because of his long
incarceration, his prognosis for recovery was good. He was
reclassified from maximum custody to medium custody. He
had earned enough credits for community custody status, but
that classification was not available for anyone serving a life
sentence without parole.
Jackson’s IQ was in the average range. A test used to meas
ure academic achievement showed he had reached a 12th
grade level of performance or higher in all areas.
Newring noted that Jackson now had strong ties with his
family members, who were supportive of him. He believed
that Jackson’s recent sobriety, employment experience with
the Department of Correctional Services, and family ties were
strengths for him. He found it unlikely that Jackson would
“re-experience that context that led to his crime of convic-
tion,” because he no longer abused drugs or wanted to impress
his peers “in the thug life.” He concluded that Jackson pre-
sented a low risk for future acts of violence. At the end of this
hearing, the court ordered a presentence investigation report
and scheduled the sentencing hearing for April 2016.
During the sentencing hearing, the court received as an
exhibit a sentencing brief with attachments from Jackson’s
attorney. Many of the attachments were letters of support to the
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judge from Jackson’s friends and family members. One letter
was from a man who had taught a “self-betterment cognitive
restructuring” class that Jackson had participated in. He said
he had known Jackson for 3 years and that when the class was
over, he asked Jackson to assist as a lay instructor. He said
Jackson had demonstrated considerable willingness to improve
himself and had used his time and abilities to help other
inmates with decisionmaking and conflict resolution.
Some of the attachments were copies of other resentencing
orders for different adolescent offenders or newspaper stories
about them. Another attachment was a report by the Violence
Policy Center that analyzed 2011 data on black homicide vic-
timization. The report showed that for 2011, the national black
homicide victimization rate was 17.51 per 100,000. “For that
year, Nebraska ranked first as the state with the highest black
victimization rate. Its rate of 34.43 per 100,000 was nearly
double the national average . . . .” There were 30 black homi-
cide victims in Nebraska that year. A report by the Department
of Health and Human Services showed that in Nebraska, homi-
cide was the leading cause of death for African-Americans
who were between the ages of 15 and 34. Attached news
reports showed that three of the other individuals alleged to be
involved in Perry’s murder had been killed. Chillous was killed
in a 2005 shooting. Later that year, Cooperrider was killed in
a shooting. In 2010, Sommerville was killed in a shooting,
McBride was sentenced to prison for possession of cocaine
with intent to distribute, and Fulton was sentenced to prison
for first degree assault. In 2014, Fulton was again sentenced to
prison for weapon offenses.
Jackson’s attorney argued that the court should rely on the
bill of exceptions from Jackson’s trial and not police reports
in the presentence investigation report, because Jackson’s
codefendants had testified inconsistently with their police
statements and had been impeached on that basis. Jackson
argued that two relevant considerations for resentencing were
that the jury had found he did not fire a weapon and that he
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had necessarily been convicted of aiding and abetting two
principals who were acquitted. He argued that Fulton never
identified Jackson as a participant until he saw him sitting
with his two codefendants at the preliminary hearing and that
Sommerville had a hairstyle that was similar to Jackson’s when
Perry was killed.
Jackson’s attorney argued that under Miller and Montgomery,
the court had to consider Jackson’s level of participation in
Perry’s killing and that he had not personally killed anyone.
He also argued that Jackson had grown up in “horrific, crime-
producing settings” that were “especially dangerous for young
black males.” He argued that as an adolescent, Jackson was
very vulnerable to negative influences and pressures. He stated
he had not asked Jackson to take responsibility and express
remorse for the murder because he believed that Jackson was
innocent and that sometimes innocent people are convicted.
He asked the court not to hold Jackson’s claim of innocence
against him in light of Cooperrider’s and Chillous’ acquittals.
He argued that Jackson’s demonstrated capacity for change was
a relevant consideration for resentencing under Montgomery.
Jackson made a personal statement to underscore the nega-
tive influence of his early environment on his bad behaviors
and his later ability to take responsibility for improving him-
self and helping others. He explained the support network he
would have upon release and asked for a meaningful chance
for parole.
Jackson’s attorney distinguished the facts of other cases in
which the court had resentenced an adolescent offender to a
lengthy term of imprisonment. For example, he pointed out
that unlike Jackson, the offender in Mantich was convicted of
using a weapon to commit a felony. He recommended that the
court resentence Jackson to a term of 40 to 50 years’ impris-
onment with credit for time served. This sentence would have
resulted in Jackson’s serving another 31⁄2 years before he was
eligible for parole and another 81⁄2 years before his manda-
tory discharge.
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The State argued that this court had held the evidence was
sufficient to support Jackson’s conviction for first degree mur-
der and that this conviction was the crime for which Jackson
was being resentenced. The deputy county attorney empha-
sized that his guilt was not at issue. She focused on Fulton’s
testimony that he had no doubt Jackson had shot Perry and
that Jackson had hit Perry in the head first. She stressed that
Jackson had left the scene and returned with a gun. And she
argued that the court had to consider Jackson’s age when Perry
was killed, because he was only “a couple months away from
not receiving the benefit of Alabama v. Miller.” She argued
that most of the accolades Jackson had received while incar-
cerated occurred after Miller was issued and that even after
Miller, he had received 22 misconduct reports. She argued that
Newring had also assessed adolescent offenders to have a low
risk of future violence in two other cases and that he “always
considered the defendant’s version of the facts rather than the
facts in the record.”
The court stated from the bench that except “for about 49
days, we wouldn’t even be here” and thus Jackson would not
have had a chance at parole. It set out the statutory factors that
it must consider, including the “person’s age, the impetuosity
of the convicted person, the defendant’s family [and] com-
munity environment, his ability to appreciate the risks and
consequences of the conduct, [and] the convicted person’s
intellectual capacity,” as well as the report Newring prepared
for the court.
The court did not restate the facts of the crime or Jackson’s
level of participation in the crime. It distinguished the resen-
tencing of the defendant in Mantich and another offender,
because those crimes involved random acts of violence and
a “chance encounter with evil.” The court went on to state,
“But we still have a person here who is dead, and your cli-
ent, the defendant, was convicted of his murder, and so I think
anything but a substantial period of incarceration would be
inappropriate.” The court stated that it had crafted a sentence
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that would allow Jackson to work toward a future release
after a substantial additional period of incarceration. It resen-
tenced Jackson to 60 to 80 years’ imprisonment with credit
for the 6,044 days that he had served. The court calculated
that Jackson would be eligible for parole in about 131⁄2 years.
Jackson timely appealed.
ASSIGNMENT OF ERROR
Jackson assigns that the district court abused its discretion
in imposing an excessive sentence because it failed to properly
consider the applicable legal principles.
STANDARD OF REVIEW
[1,2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.10 A judicial abuse of discretion exists when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just
results in matters submitted for disposition.11
ANALYSIS
[3,4] In State v. Nollen,12 we set forth the law on the sentenc-
ing of juvenile offenders. We noted that in Graham v. Florida,13
the U.S. Supreme Court held that it is unconstitutional for a
State to impose a sentence of life imprisonment without parole
on a juvenile convicted of a nonhomicide offense and that the
Constitution required that those juveniles be given “‘some
meaningful opportunity to obtain release based on demon-
strated maturity and rehabilitation.’”14
10
State v. Mantich, 295 Neb. 407, 888 N.W.2d 376 (2016).
11
Id.
12
State v. Nollen, 296 Neb. 94, 892 N.W.2d 81 (2017).
13
Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010).
14
Nollen, supra note 12, 296 Neb. at 118, 892 N.W.2d at 97, quoting
Graham, supra note 13.
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[5,6] We also noted that in Miller,15 the Court declined to
extend a categorical bar of no life-without-parole sentences
to juveniles convicted of homicide. Instead, the U.S. Supreme
Court held that a sentencer must “‘take into account how chil-
dren are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.’”16
[7] The U.S. Supreme Court, in Montgomery v. Louisiana,
held that the prohibition in Miller of mandatory life imprison-
ment without parole for juvenile offenders announced a new
substantive rule.17 The Court further held that when a new
substantive rule of constitutional law controls the outcome of
a case, the federal Constitution requires state collateral review
courts to give retroactive effect to that rule.18
As a result of the Miller holding, our Legislature amended
Nebraska’s sentencing laws for juveniles convicted of first
degree murder.19 The new sentencing statute mandates that
juveniles convicted of first degree murder are to be sentenced
to a “maximum sentence of not greater than life imprison-
ment and a minimum sentence of not less than forty years’
imprisonment.”20 In determining the sentence, the sentenc-
ing judge must “consider mitigating factors which led to
the commission of the offense.”21 Section 28-105.02(2) sets
forth a nonexhaustive list of mitigating factors for the court
to consider.
The crux of Jackson’s argument is that Miller and
Montgomery require resentencing courts to consider the cir-
cumstances of the offense and the extent of the defendant’s
15
See Miller, supra note 2.
16
Nollen, supra note 12, 296 Neb. 118, 892 N.W.2d at 97, quoting Miller,
supra note 2.
17
Montgomery, supra note 3.
18
Id.
19
See § 28-105.02.
20
§ 28-105.02(1).
21
§ 28-105.02(2).
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participation, the defendant’s immaturity and vulnerability
to negative influences at the time of the offense, and the
defendant’s maturation and rehabilitation since the time of
the offense.
[8] As we stated in Nollen, a juvenile offender convicted
of a homicide offense may be sentenced to life imprisonment
without parole so long as the sentencer considered specific,
individualized factors before handing down that sentence.22
Here, Jackson was not sentenced to life imprisonment without
parole, but to imprisonment for a term of years that allows for
parole eligibility.
Furthermore, the record indicates that a full mitigation hear-
ing was held prior to sentencing at which both the State
and Jackson were given an opportunity to present evidence.
The sentencing court heard from two witnesses called by
Jackson and received numerous exhibits offered by Jackson.
The court also ordered a presentence investigation, which gave
Jackson the ability to present his own written statement as
well as various reference letters from his family, friends, and
acquaintances.
During the sentencing hearing, the district court stated that
it had to consider the fact that a jury convicted the defend
ant of murder in the first degree. However, the court also
stated that it had to consider the mitigating factors set forth in
§ 28-105.02(2), as well as the psychological evaluation com-
pleted by Newring. As a result, we conclude that Jackson’s
sentence does not violate Miller and that therefore, Jackson’s
lone assignment of error is without merit.
Jackson further argues that the district court erred because
it did not consider and make findings concerning (1) the
circumstances of the offense and the extent of Jackson’s par-
ticipation, (2) Jackson’s immaturity at the time of the offense,
(3) Jackson’s vulnerability to negative influences at the time
22
Nollen, supra note 12.
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of the offense, and (4) Jackson’s demonstrated maturity and
rehabilitation since the time of the offense.
However, in State v. Mantich, we held that there was
no language in Miller, nor anything in our case law or in
§ 28-105.02, that would require specific factfinding at sen-
tencing.23 We further held that “the Legislature has set forth
the sentencing procedure applicable to juveniles who have
committed homicide offenses.”24 “That procedure is consistent
with Miller and with the Eighth Amendment as it is currently
interpreted by the U.S. Supreme Court.”25
[9] The appropriateness of a sentence is necessarily a sub-
jective judgment and includes the sentencing judge’s observa-
tions of the defendant’s demeanor and attitude and all of the
facts and circumstances surrounding the defendant’s life.26
As a result, upon our review of the record, we conclude that
Jackson’s sentence was in accordance with both Miller and
§ 28-105.02 and therefore find Jackson’s additional arguments
to be without merit.
CONCLUSION
The sentence of the district court is affirmed.
A ffirmed.
23
Mantich, supra note 10.
24
Id. at 418, 888 N.W.2d at 384.
25
Id.
26
Nollen, supra note 12.