State v. Dill

913 N.W.2d 470, 300 Neb. 344
Nebraska Supreme Court·Decided June 22, 2018·No. No. S-17-991·Published·Cited by 262 cases

Opinion

Cassel, J.

**345INTRODUCTION

Jesse M. Dill appeals from a sentence imposing both imprisonment and postrelease supervision in a criminal case. But she assigns error only to the fees and payments required under the postrelease supervision order. We have not previously considered the issue in this context. Because we find no abuse of discretion, we affirm.

BACKGROUND

The district court accepted Dill's no contest plea to a Class IIIA felony. The court imposed a determinate sentence of 1 year's imprisonment followed by 18 months of postrelease supervision. The court ordered Dill to pay a number of fees in connection with the postrelease supervision: a $30 administrative enrollment fee, a $25 monthly programming fee, and a $5 monthly fee for chemical testing. The court also ordered Dill to pay costs associated with any evaluations, counseling, or treatment undertaken at the direction of her postrelease supervision officer.

At the sentencing hearing, neither party offered any evidence. Both parties disclaimed any additions or corrections to the presentence report.

Dill's counsel objected to a number of the postrelease supervision conditions. With regard to the various fees Dill was ordered to pay, counsel stated that Dill previously had been determined to be indigent and without the financial means to pay fees. Counsel also stated that there had "been no further assessment in regards to her ability to pay." The court overruled the objections and entered a postrelease **346supervision order containing the same conditions as had been orally announced.

Dill filed a timely appeal, and we granted her petition to bypass review by the Nebraska Court of Appeals.

ASSIGNMENT OF ERROR

Dill assigns that the court abused its discretion by imposing costs and fees of postrelease supervision upon her.

*472STANDARD OF REVIEW

An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.1 An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.2

ANALYSIS

Postrelease supervision is a relatively new concept in Nebraska sentencing law.3 As such, our case law on the subject is scant. Last year, a defendant sought to challenge the validity of postrelease supervision conditions imposed upon him, but we determined that because he did not challenge those conditions at the sentencing hearing, he waived his challenge.4 Here, Dill raised her objections at the time of sentencing. This appeal presents our first opportunity to address a preserved challenge to the conditions imposed in connection with a sentence of postrelease supervision. But before we reach Dill's specific arguments, we examine the statutory structure concerning postrelease supervision.

**347STATUTORY FRAMEWORK

The Nebraska Probation Administration Act defines terms pertinent to postrelease supervision.5 The definition of postrelease supervision is "the portion of a split sentence following a period of incarceration under which a person found guilty of a crime ... is released by a court subject to conditions imposed by the court and subject to supervision by the [Office of Probation Administration]."6 "Probation," which "includes post-release supervision," is "a sentence under which a person found guilty of a crime upon verdict or plea or adjudicated delinquent or in need of special supervision is released by a court subject to conditions imposed by the court and subject to supervision."7 And a person sentenced to postrelease supervision is called a "[p]robationer."8 The legislative intent is clear. Postrelease supervision is to be treated as a form of probation, and the usual rules of law governing probation will ordinarily apply to postrelease supervision.

A sentence of postrelease supervision is statutorily mandated for certain lower-level felonies. Except when a term of probation is required by law, statutes compel the imposition of a determinate sentence along with a sentence of postrelease supervision for an offender convicted of a Class III, IIIA, or IV felony.9 But an offender convicted of one of those enumerated felonies is not subject to postrelease supervision if he or she is also sentenced to imprisonment for a felony with a higher penalty classification.10 When a court sentences an offender to postrelease supervision, the *473court shall specify the term of such postrelease supervision.11 **348Other statutes apply procedures of probation to postrelease supervision. All sentences of postrelease supervision are served under the jurisdiction of the Office of Probation Administration and are subject to conditions imposed under § 29-2262 and subject to sanctions authorized under § 29-2266.02.12 A court may revoke a probationer's postrelease supervision upon finding that the probationer violated one of its conditions.13

STATUTE AND RULE IMPLEMENTING POSTRELEASE SUPERVISION

The legislation that introduced postrelease supervision into Nebraska's statutes14 authorized the adoption of rules and regulations governing probation, which, as we have observed, includes postrelease supervision. The Nebraska Probation Administration Act now defines "[r]ules and regulations" to mean "policies and procedures written by the [Office of Probation Administration] and approved by the Supreme Court."15

The act speaks broadly. It authorizes rules and regulations

• "as may be necessary or proper for the operation of the [Office of Probation Administration] or [Nebraska Probation System],"16

• "for transitioning individuals on probation across levels of supervision and discharging them from supervision consistent with evidence-based practices,"17

• to "ensure supervision resources are prioritized for individuals who are high risk to reoffend,"18

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State v. Dill, 913 N.W.2d 470, 300 Neb. 344 (Neb. 2018).

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