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LEGISLATURE OF NEBRASKA
ONE HUNDRED SEVENTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 34
Introduced by Pansing Brooks, 28; Vargas, 7; Wayne, 13.
Read first time January 07, 2021
Committee: Judiciary
1 A BILL FOR AN ACT relating to crimes and offenses; to amend sections
2 28-105.02 and 29-2204.02, Reissue Revised Statutes of Nebraska, and
3 sections 28-105, 28-105.01, and 29-2204, Revised Statutes Cumulative
4 Supplement, 2020; to change provisions relating to sentences for
5 certain offenses committed by persons under twenty-one years of age;
6 to require consideration of certain factors at sentencing; to
7 harmonize provisions; and to repeal the original sections.
8 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 28-105, Revised Statutes Cumulative Supplement,
2 2020, is amended to read:
3 28-105 (1) For purposes of the Nebraska Criminal Code and any
4 statute passed by the Legislature after the date of passage of the code,
5 felonies are divided into ten classes which are distinguished from one
6 another by the following penalties which are authorized upon conviction:
7 Class I felony Death
8 Class IA felony Life imprisonment
9 Class IB felony Maximum—life imprisonment
10 Minimum—twenty years imprisonment
11 Class IC felony Maximum—fifty years imprisonment
12 Mandatory minimum—five years imprisonment
13 Class ID felony Maximum—fifty years imprisonment
14 Mandatory minimum—three years imprisonment
15 Class II felony Maximum—fifty years imprisonment
16 Minimum—one year imprisonment
17 Class IIA felony Maximum—twenty years imprisonment
18 Minimum—none
19 Class III felony Maximum—four years imprisonment and two years
20 post-release supervision or
21 twenty-five thousand dollars fine, or both
22 Minimum—none for imprisonment and nine months
23 post-release supervision if imprisonment is imposed
24 Class IIIA felony Maximum—three years imprisonment
25 and eighteen months post-release supervision or
26 ten thousand dollars fine, or both
27 Minimum—none for imprisonment and nine months
28 post-release supervision if imprisonment is imposed
29 Class IV felony Maximum—two years imprisonment and twelve
30 months post-release supervision or
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1 ten thousand dollars fine, or both
2 Minimum—none for imprisonment and none for
3 post-release supervision
4 (2) All sentences for maximum terms of imprisonment for one year or
5 more for felonies shall be served in institutions under the jurisdiction
6 of the Department of Correctional Services. All sentences for maximum
7 terms of imprisonment of less than one year shall be served in the county
8 jail.
9 (3) Nothing in this section shall limit the authority granted in
10 sections 29-2221 and 29-2222 to increase sentences for habitual
11 criminals.
12 (4) The minimum term of imprisonment for any person convicted of a
13 Class IC or Class ID felony for an offense committed when such person was
14 under twenty-one years of age shall not be a mandatory minimum but a
15 minimum term only.
16 (5) (4) A person convicted of a felony for which a mandatory minimum
17 sentence is prescribed shall not be eligible for probation.
18 (6) (5) All sentences of post-release supervision shall be served
19 under the jurisdiction of the Office of Probation Administration and
20 shall be subject to conditions imposed pursuant to section 29-2262 and
21 subject to sanctions authorized pursuant to section 29-2266.02.
22 (7) (6) Any person who is sentenced to imprisonment for a Class I,
23 IA, IB, IC, ID, II, or IIA felony and sentenced concurrently or
24 consecutively to imprisonment for a Class III, IIIA, or IV felony shall
25 not be subject to post-release supervision pursuant to subsection (1) of
26 this section.
27 (8) (7) Any person who is sentenced to imprisonment for a Class III,
28 IIIA, or IV felony committed prior to August 30, 2015, and sentenced
29 concurrently or consecutively to imprisonment for a Class III, IIIA, or
30 IV felony committed on or after August 30, 2015, shall not be subject to
31 post-release supervision pursuant to subsection (1) of this section.
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1 (9) (8) The changes made to the penalties for Class III, IIIA, and
2 IV felonies by Laws 2015, LB605, do not apply to any offense committed
3 prior to August 30, 2015, as provided in section 28-116.
4 Sec. 2. Section 28-105.01, Revised Statutes Cumulative Supplement,
5 2020, is amended to read:
6 28-105.01 (1) Notwithstanding any other provision of law, the death
7 penalty or life imprisonment shall not be imposed upon any person who was
8 under the age of twenty-one eighteen years at the time of the commission
9 of the crime.
10 (2) Notwithstanding any other provision of law, the death penalty
11 shall not be imposed upon any person with an intellectual disability.
12 (3) As used in subsection (2) of this section, intellectual
13 disability means significantly subaverage general intellectual
14 functioning existing concurrently with deficits in adaptive behavior. An
15 intelligence quotient of seventy or below on a reliably administered
16 intelligence quotient test shall be presumptive evidence of intellectual
17 disability.
18 (4) If (a) a jury renders a verdict finding the existence of one or
19 more aggravating circumstances as provided in section 29-2520 or (b)(i)
20 the information contains a notice of aggravation as provided in section
21 29-1603 and (ii) the defendant waives his or her right to a jury
22 determination of the alleged aggravating circumstances, the court shall
23 hold a hearing prior to any sentencing determination proceeding as
24 provided in section 29-2521 upon a verified motion of the defense
25 requesting a ruling that the penalty of death be precluded under
26 subsection (2) of this section. If the court finds, by a preponderance of
27 the evidence, that the defendant is a person with an intellectual
28 disability, the death sentence shall not be imposed. A ruling by the
29 court that the evidence of diminished intelligence introduced by the
30 defendant does not preclude the death penalty under subsection (2) of
31 this section shall not restrict the defendant's opportunity to introduce
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1 such evidence at the sentencing determination proceeding as provided in
2 section 29-2521 or to argue that such evidence should be given mitigating
3 significance.
4 Sec. 3. Section 28-105.02, Reissue Revised Statutes of Nebraska, is
5 amended to read:
6 28-105.02 (1) Notwithstanding any other provision of law, the
7 penalty for any person convicted of a Class IA felony for an offense
8 committed when such person was under the age of twenty-one eighteen years
9 shall be a maximum sentence of not greater than eighty years' life
10 imprisonment and a minimum sentence of not greater less than forty years'
11 imprisonment.
12 (2) Notwithstanding any other provision of law, the penalty for any
13 person convicted of a Class IB felony for an offense committed when such
14 person was under the age of twenty-one years shall be a maximum sentence
15 of not greater than sixty years' imprisonment and a minimum sentence of
16 not greater than twenty years' imprisonment, except as provided in
17 section 28-319.01.
18 (3) (2) In determining the sentence of a convicted person under
19 subsection (1) of this section, the court shall consider mitigating
20 factors which led to the commission of the offense. The convicted person
21 may submit mitigating factors to the court, including, but not limited
22 to:
23 (a) The convicted person's age at the time of the offense;
24 (b) The impetuosity of the convicted person;
25 (c) The convicted person's family and community environment;
26 (d) The convicted person's ability to appreciate the risks and
27 consequences of the conduct;
28 (e) The convicted person's intellectual capacity; and
29 (f) The outcome of a comprehensive mental health evaluation of the
30 convicted person conducted by an adolescent mental health professional
31 licensed in this state. The evaluation shall include, but not be limited
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1 to, interviews with the convicted person's family in order to learn about
2 the convicted person's prenatal history, developmental history, medical
3 history, substance abuse treatment history, if any, social history, and
4 psychological history.
5 Sec. 4. Section 29-2204, Revised Statutes Cumulative Supplement,
6 2020, is amended to read:
7 29-2204 (1) Except as provided in subsection (2) of this section and
8 except when a term of life imprisonment is required by law, in imposing a
9 sentence upon an offender for any class of felony other than a Class III,
10 IIIA, or IV felony, the court shall fix the minimum and the maximum terms
11 of the sentence to be served within the limits provided by law. The
12 maximum term shall not be greater than the maximum limit provided by law,
13 and:
14 (a) The minimum term fixed by the court shall be any term of years
15 less than the maximum term imposed by the court; or
16 (b) The minimum term shall be the minimum limit provided by law.
17 (2) In imposing a sentence for a Class IA or IB felony upon an
18 offender who was under twenty-one years of age at the time the offense
19 was committed, the court shall fix the minimum and the maximum terms of
20 the sentence as provided in section 28-105.02.
21 (3) (2) When a maximum term of life is imposed by the court for a
22 Class IB felony for an offender who was twenty-one years of age or older
23 at the time the offense was committed, the minimum term fixed by the
24 court shall be any :(a) Any term of years not less than the minimum limit
25 provided by law. ; or
26 (b) A term of life imprisonment.
27 (4) (3) When a maximum term of life is imposed by the court for a
28 Class IA felony for an offender who was twenty-one years of age or older
29 at the time the offense was committed, the minimum term fixed by the
30 court shall be a :(a) A term of life imprisonment. ; or
31 (b) Any term of years not less than the minimum limit provided by
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1 law after consideration of the mitigating factors in section 28-105.02,
2 if the defendant was under eighteen years of age at the time he or she
3 committed the crime for which he or she was convicted.
4 (5) (4) When the court is of the opinion that imprisonment may be
5 appropriate but desires more detailed information as a basis for
6 determining the sentence to be imposed than has been provided by the
7 presentence report required by section 29-2261, the court may commit an
8 offender to the Department of Correctional Services. During that time,
9 the department shall conduct a complete study of the offender as provided
10 in section 29-2204.03.
11 (6) If the defendant was under twenty-one years of age at the time
12 the defendant committed the crime for which the defendant was convicted,
13 the court shall consider the mitigating factors in section 28-105.02
14 prior to sentencing.
15 (7) Whenever (5) Except when a term of life is required by law,
16 whenever the defendant was under eighteen years of age at the time he or
17 she committed the crime for which he or she was convicted, the court may,
18 in its discretion, instead of imposing the penalty provided for the
19 crime, make such disposition of the defendant as the court deems proper
20 under the Nebraska Juvenile Code.
21 (8)(a) (6)(a) When imposing an indeterminate sentence upon an
22 offender under this section, the court shall:
23 (i) Advise the offender on the record the time the offender will
24 serve on his or her minimum term before attaining parole eligibility
25 assuming that no good time for which the offender will be eligible is
26 lost; and
27 (ii) Advise the offender on the record the time the offender will
28 serve on his or her maximum term before attaining mandatory release
29 assuming that no good time for which the offender will be eligible is
30 lost.
31 (b) If any discrepancy exists between the statement of the minimum
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1 limit of the sentence and the statement of parole eligibility or between
2 the statement of the maximum limit of the sentence and the statement of
3 mandatory release, the statements of the minimum limit and the maximum
4 limit shall control the calculation of the offender's term.
5 (c) If the court imposes more than one sentence upon an offender or
6 imposes a sentence upon an offender who is at that time serving another
7 sentence, the court shall state whether the sentences are to be
8 concurrent or consecutive.
9 Sec. 5. Section 29-2204.02, Reissue Revised Statutes of Nebraska, is
10 amended to read:
11 29-2204.02 (1) Except when a term of probation is required by law as
12 provided in subsection (2) of this section or except as otherwise
13 provided in subsection (4) of this section, in imposing a sentence upon
14 an offender for a Class III, IIIA, or IV felony, the court shall:
15 (a) Impose a determinate sentence of imprisonment within the
16 applicable range in section 28-105; and
17 (b) Impose a sentence of post-release supervision, under the
18 jurisdiction of the Office of Probation Administration, within the
19 applicable range in section 28-105.
20 (2) If the criminal offense is a Class IV felony, the court shall
21 impose a sentence of probation unless:
22 (a) The defendant is concurrently or consecutively sentenced to
23 imprisonment for any felony other than another Class IV felony;
24 (b) The defendant has been deemed a habitual criminal pursuant to
25 section 29-2221; or
26 (c) There are substantial and compelling reasons why the defendant
27 cannot effectively and safely be supervised in the community, including,
28 but not limited to, the criteria in subsections (2) and (3) of section
29 29-2260. Unless other reasons are found to be present, that the offender
30 has not previously succeeded on probation is not, standing alone, a
31 substantial and compelling reason.
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1 (3) If a sentence of probation is not imposed, the court shall state
2 its reasoning on the record, advise the defendant of his or her right to
3 appeal the sentence, and impose a sentence as provided in subsection (1)
4 of this section.
5 (4)