State v. Hamilton

763 N.W.2d 731, 277 Neb. 593
CourtNebraska Supreme Court
DecidedApril 10, 2009
DocketS-08-506
StatusPublished
Cited by75 cases

This text of 763 N.W.2d 731 (State v. Hamilton) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hamilton, 763 N.W.2d 731, 277 Neb. 593 (Neb. 2009).

Opinion

763 N.W.2d 731 (2009)
277 Neb. 593

STATE of Nebraska, appellee,
v.
Joshua D. HAMILTON, appellant.

No. S-08-506.

Supreme Court of Nebraska.

April 10, 2009.

*733 Dennis R. Keefe, Lancaster County Public Defender, John C. Jorgensen, and Ti'era M. Johnson, Senior Certified Law Student, for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

Pursuant to a plea agreement resulting in the dismissal of more serious charges and an agreement by the State not to file additional charges, Joshua D. Hamilton entered pleas of no contest to one count of third degree sexual assault of a child, a Class IIIA felony[1] and one count of attempted first degree sexual assault, a Class III felony.[2] The district court for Lancaster County accepted the pleas and convicted Hamilton of the two offenses. At a sentencing hearing, the court determined that Hamilton had committed an "aggravated offense" as defined in the Sex Offender Registration Act (SORA)[3] and would be subject to the lifetime registration requirement of SORA and the lifetime community supervision requirement of Neb.Rev.Stat. § 83-174.03 (Reissue 2008). The court sentenced Hamilton to 3 to 5 years' imprisonment for the offense of third degree sexual assault of a child and 10 to 15 years' imprisonment for the offense of attempted first degree sexual assault, with the sentences to run consecutively and credit given for time served. Hamilton perfected this timely appeal.

FACTS

In 2007, two children under the age of 12 reported that they had been sexually assaulted by Hamilton. Hamilton's biological daughter reported that Hamilton touched her with his hands and penis on top of and under her clothing and that he penetrated her vagina with his penis. The daughter of a woman to whom Hamilton was married in 2007 reported that Hamilton had penetrated her vagina with his finger and penis on numerous occasions over a 3-year period.

When interviewed regarding these reports, Hamilton told police that he used drugs and alcohol while caring for the children and could not recall assaulting either one of them. Hamilton told police it *734 was possible that he had assaulted the girls during a drug- or alcohol-induced blackout. He also stated that he believed the girls were telling the truth.

Hamilton was originally charged with two counts of third degree sexual assault of a child and one count of first degree sexual assault of a child. He eventually entered into the plea agreement described above, resulting in his conviction on one count of third degree sexual assault of a child and one count of attempted first degree sexual assault. The factual basis provided by the prosecutor at the plea hearing included the reports of the minor victims that Hamilton had sexually penetrated them on several occasions. The court offered Hamilton the opportunity to comment on the facts as recited by the prosecutor, but Hamilton declined.

At the sentencing hearing, Hamilton's counsel argued that because sexual penetration was not an element of either of the offenses for which Hamilton was convicted, neither crime could be considered an "aggravated offense" under SORA. SORA defines "aggravated offense" as "any registrable offense under section 29-4003 which involves the penetration of (i) a victim age twelve years or more through the use of force or the threat of serious violence or (ii) a victim under the age of twelve years."[4] In support of this argument, Hamilton's counsel relied on State v. Mastne,[5] a 2006 opinion in which the Nebraska Court of Appeals held that existence of an "aggravated offense" under SORA must be determined only from the statutory elements of the offense for which a defendant is convicted and that a judge may not make factual findings or determinations which go beyond such elements. The prosecutor argued that the court could make factual determinations regarding the existence of an aggravated offense based upon the uncontested factual bases for the pleas. Without discussing Mastne, the court made a determination that each of Hamilton's victims was under the age of 12 and that the facts warranted treating both crimes as aggravated offenses for purposes of SORA. The court notified Hamilton that he would be subject to a lifetime registration requirement under SORA and a lifetime community supervision requirement under § 83-174.03. The court then imposed the sentences described above. Hamilton perfected this timely appeal, and we granted the State's petition to bypass and motion for oral argument.

ASSIGNMENTS OF ERROR

Hamilton assigns, restated, that the district court erred (1) in determining that his offenses were aggravated offenses for purposes of SORA and lifetime community supervision and (2) by imposing excessive sentences that constituted an abuse of discretion.

STANDARD OF REVIEW

[1, 2] Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.[6]

[3] A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.[7]

*735 ANALYSIS

AGGRAVATED OFFENSE FOR PURPOSES OF SORA AND LIFETIME PAROLE SUPERVISION

[4] SORA is a civil regulatory scheme intended by the Legislature to protect the public from the danger posed by sex offenders.[8] SORA applies to any person who pleads guilty or is found guilty of certain offenses listed in § 29-4003(1). Included in that list are sexual assault of a child in the third degree[9]; first degree sexual assault of a child[10]; and attempt, solicitation, or conspiracy to commit an offense listed in § 29-4003(1)(a).[11] SORA includes a general requirement that persons convicted of these offenses must register with the sheriff of the county in which he or she resides[12] during any period of supervised release, probation, or parole and "for a period of ten years after the date of discharge from probation, parole, or supervised release or release from incarceration, whichever date is most recent."[13] Certain sex offenders, including those who commit an aggravated offense, are subject to a lifetime registration requirement.

The lifetime community supervision requirement of § 83-174.03 incorporates and mirrors the lifetime registration requirement of SORA.[14] A defendant who commits an aggravated offense as defined by SORA "shall, upon completion of his or her term of incarceration or release from civil commitment, be supervised in the community by the Office of Parole Administration for the remainder of his or her life."[15]

SORA defines an aggravated offense as "any registrable offense under section 29-4003 which involves the penetration of (i) a victim age twelve years or more through the use of force or the threat of serious violence or (ii) a victim under the age of twelve years."[16]

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Cite This Page — Counsel Stack

Bluebook (online)
763 N.W.2d 731, 277 Neb. 593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hamilton-neb-2009.