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www.nebraska.gov/apps-courts-epub/
08/02/2024 09:07 AM CDT
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. BRIGGS
Cite as 317 Neb. 296
State of Nebraska, appellee, v.
James M. Briggs, Jr., appellant.
___ N.W.3d ___
Filed August 2, 2024. No. S-23-521.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When
reviewing a criminal conviction for sufficiency of the evidence, whether
the evidence is direct, circumstantial, or a combination thereof, the
standard is the same: An appellate court does not resolve conflicts in the
evidence, pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.
2. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves independently of the lower court’s decision.
3. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. Whether a claim of ineffective assistance of counsel
can be determined on direct appeal presents a question of law, which
turns upon the sufficiency of the record to address the claim without an
evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement.
4. Effectiveness of Counsel: Appeal and Error. In reviewing a claim of
ineffective assistance of counsel on direct appeal, an appellate court
determines as a matter of law whether the record conclusively shows
that (1) a defense counsel’s performance was deficient or (2) a defend
ant was or was not prejudiced by a defense counsel’s alleged deficient
performance.
5. Jury Instructions: Appeal and Error. The failure to object to a jury
instruction after it has been submitted to counsel for review precludes
raising an objection on appeal absent plain error.
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STATE V. BRIGGS
Cite as 317 Neb. 296
6. Criminal Law: Motions to Dismiss: Directed Verdict. In a criminal
case, a motion to dismiss at the close of all the evidence has the same
legal effect as a motion for a directed verdict. And a motion for a
directed verdict is simply another name for a motion for judgment of
acquittal. All three motions assert that the defendant should be acquitted
of the charge because there is no legally sufficient evidentiary basis on
which a reasonable jury could return a guilty verdict.
7. Motions to Dismiss: Directed Verdict: Convictions. Whether styled
as a motion to dismiss, a motion for directed verdict, or a motion
for judgment of acquittal, such a motion made at the close of all the
evidence challenges the sufficiency of the State’s evidence to sustain
the conviction.
8. Effectiveness of Counsel: Appeal and Error. In reviewing claims of
ineffective assistance of counsel on direct appeal, an appellate court
decides only whether the undisputed facts contained within the record
are sufficient to conclusively determine whether counsel did or did not
provide effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance.
9. Effectiveness of Counsel: Proof. To show that counsel’s performance
was deficient, the defendant must show counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law.
10. ____: ____. To show prejudice from counsel’s deficient performance,
the defendant must demonstrate a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding would have
been different.
11. Criminal Law: Statutes. When a criminal statute describes an offense
by using common-law terms without further definition, the offense is to
be construed with reference to the common law.
12. Battery: Words and Phrases. The phrase “[u]nlawfully strikes or
wounds another” in Neb. Rev. Stat. § 28-309(1)(c) (Reissue 2016) is
referring to common-law battery.
13. Criminal Law: Battery: Words and Phrases. In the criminal context,
common-law battery must be “willful,” meaning the contact was made
intentionally, recklessly, or with criminal negligence; accidental or inadvertent contact is not sufficient.
14. Jury Instructions: Appeal and Error. All the jury instructions must be
read together, and if, taken as a whole, they correctly state the law, are
not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.
15. Criminal Law: Statutes: Sentences: Legislature. Where a criminal
statute is amended by mitigating the punishment, after the commission
of a prohibited act but before final judgment, the punishment is that
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317 Nebraska Reports
STATE V. BRIGGS
Cite as 317 Neb. 296
provided by the amendatory act unless the Legislature has specifically
provided otherwise.
Appeal from the District Court for Lancaster County, Kevin
R. McManaman, Judge. Affirmed in part, and in part sentence
vacated and cause remanded with directions.
F. Matthew Aerni, of Aerni Law, L.L.C., for appellant.
Michael T. Hilgers, Attorney General, and Jacob M.
Waggoner for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
In this direct appeal, James M. Briggs, Jr., challenges his
convictions and sentences for two counts of second degree
assault. He contends the jury instructions omitted a material
element of the offenses, and he seeks resentencing based on
statutory amendments that became effective after the sentencing hearing but while this direct appeal was pending. We
affirm his convictions but remand the matter for resentencing.
I. BACKGROUND
1. Information
Briggs was charged by information in the district court for
Lancaster County with two counts of second degree assault,
in violation of Neb. Rev. Stat. § 28-309 (Reissue 2016), both
Class IIA felonies. In Nebraska, the offense of second degree
assault is committed if one
(a) Intentionally or knowingly causes bodily injury to
another person with a dangerous instrument;
(b) Recklessly causes serious bodily injury to another
person with a dangerous instrument; or
(c) Unlawfully strikes or wounds another (i) while
legally confined in a jail or an adult correctional or
penal institution, (ii) while otherwise in legal custody of
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STATE V. BRIGGS
Cite as 317 Neb. 296
the Department of Correctional Services, or (iii) while
committed as a dangerous sex offender under the Sex
Offender Commitment Act. 1
Both counts charged Briggs using the language of
§ 28-309(1)(c)(i) and alleged that he “did unlawfully strike or
wound [the victim] while legally confined in a jail or an adult
correctional or penal institution.” The charges were based on
an incident that occurred on April 21, 2021, while Briggs was
confined in what was then called the Lincoln Correctional
Center (LCC). The alleged victims were two LCC employees.
The information was subsequently amended to include an allegation that Briggs is a habitual criminal.
Briggs entered pleas of not guilty, and the matter proceeded
to trial.
2. Trial Evidence
A jury trial was held in May 2023, and both victims testified. One victim, LCC employee Parwiz Masoodi, testified
that on April 21, 2021, he was working at LCC on unit “C,”
which housed “mental health inmates.” Briggs was one of the
inmates in the unit. Masoodi’s job involved direct contact with
inmates, and he was responsible for escorting them through
the facility, including escorting inmates to and from a yard
area for exercise.
Briggs wanted to exercise his yard time that day, so Masoodi
escorted him through the facility and to the padlocked door
that opened into the yard. Masoodi testified that as he was
opening the padlock, Briggs began punching him. Masoodi
told Briggs to stop and called for help, but Briggs continued
punching. During the attack, which was captured on LCC’s
internal security cameras, Masoodi estimated he was punched
in his face and head approximately 15 to 20 times.
The security camera footage was received into evidence
and played for the jury. The footage shows Briggs using his
1
§ 28-309(1).
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STATE V. BRIGGS
Cite as 317 Neb. 296
hands and fists to attack Masoodi as they approach the yard.
It then shows Masoodi restraining Briggs by bringing him to
the ground while additional LCC employees arrive to assist in
restraining Briggs.
Another victim, LCC employee Desaray Kerns, testified
that on April 21, 2021, she was working as a case manager
on unit “C” at LCC and was Masoodi’s supervisor. She heard
an inmate yell that a staff member was being assaulted, and
she observed that Masoodi had Briggs on the ground and was
trying to control him. Kerns attempted to assist by controlling
Briggs’ lower body, and when she did, Briggs kicked her at
least twice in the face.
Both Masoodi and Kerns were photographed after the incident, and the photographs were received into evidence. Both
Masoodi and Kerns sustained bruising and received emergency
medical care after the incident, but there is no claim that either
sustained a serious bodily injury.
3. Motion to Dismiss
After the State rested, Briggs moved at a sidebar to dismiss
both counts. The entirety of his oral motion was “defense
would move to dismiss both counts against . . . Briggs on
the grounds that the State has failed to produce a prima facie
case as to each charge — as to all of the elements of these
charges.” The district court overruled the motion, stating it
had “been attentive in the trial thus far and believe[d] the
State ha[d] established sufficient evidence” to submit the case
to the jury. Briggs waived his right to testify and rested without introducing any evidence.
4. Jury Instructions
Jury instruction No. 4 set out the material elements of the
crime and stated in relevant part:
Regarding the crime of Assault in the Second Degree,
the State must prove beyond a reasonable doubt that
[Briggs]:
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317 Nebraska Reports
STATE V. BRIGGS
Cite as 317 Neb. 296
1. Did intentionally or knowingly strike or wound [the
victim];
2. He did so on or about April 21, 2021, in Lancaster
County, Nebraska; and
3. He did so while legally confined in a jail or an adult
correctional or penal institution, or while otherwise in
legal custody of the Department of Correctional Services.
At the jury instruction conference, Briggs objected to this
instruction and asked the court to substitute his proposed
elements instruction, which provided the State had to prove
beyond a reasonable doubt the following:
1. [Briggs] struck or wounded another;
2. That he did so intentionally or knowingly;
3. That he did so when [he] was legally confined in
jail or adult correctional or penal institution or when he
was otherwise in the legal custody of the Department of
Correctional Services; and
4. That he did so on or about April 21, 2021, in
Lancaster County, Nebraska.
The court stated that it had reviewed Briggs’ proposed elements instruction and had already incorporated some of it
into instruction No. 4. It otherwise denied Briggs’ request to
substitute his proposed elements instruction.
5. Verdict and Sentencing
The jury returned a guilty verdict on both counts of second
degree assault. The court accepted the verdicts, entered judgment, and scheduled a sentencing hearing for July 6, 2023.
At sentencing, the State offered certified copies of Briggs’
prior convictions for the purpose of enhancement, and the
district court received the exhibits over Briggs’ objections.
The district court found that Briggs was a habitual criminal
and, relying on Neb. Rev. Stat. § 29-2221 (Reissue 2016),
sentenced Briggs on each conviction to an indeterminate term
of 10 to 12 years’ imprisonment, with a 10-year mandatory minimum on both. It ordered the sentences to be served
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. BRIGGS
Cite as 317 Neb. 296
consecutively to each other and to the sentence Briggs was
already serving.
Briggs filed this timely appeal through newly appointed
appellate counsel. We moved the appeal to our docket on our
own motion.
II. ASSIGNMENTS OF ERROR
Briggs assigns, restated and consolidated, that the trial court
erred in (1) giving jury instruction No. 4 and (2) overruling
his motion to dismiss. He also asserts that his trial counsel
was ineffective in failing to object to instruction No. 4 and in
failing to advise the trial court of amendments to the habitual
criminal statute.
III. STANDARD OF REVIEW
[1] When reviewing a criminal conviction for sufficiency
of the evidence, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An
appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. 2 The relevant question
is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. 3
[2] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision. 4
[3,4] Whether a claim of ineffective assistance of counsel
can be determined on direct appeal presents a question of law,
which turns upon the sufficiency of the record to address the
claim without an evidentiary hearing or whether the claim
rests solely on the interpretation of a statute or constitutional
2
State v. Npimnee, 316 Neb. 1,
2 N.W.3d 620 (2024).
3
Id.
4
Id.
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STATE V. BRIGGS
Cite as 317 Neb. 296
requirement. 5 In reviewing a claim of ineffective assistance of
counsel on direct appeal, an appellate court determines as a
matter of law whether the record conclusively shows that (1)
a defense counsel’s performance was deficient or (2) a defend
ant was or was not prejudiced by a defense counsel’s alleged
deficient performance. 6
IV. ANALYSIS
1. Challenge to Elements Instruction
Briggs was charged with two counts of violating
§ 28-309(1)(c)(i), which provides that a person commits the
crime of second degree assault if he or she “[u]nlawfully
strikes or wounds another . . . while legally confined in a
jail or an adult correctional or penal institution.” In his first
assignment of error, Briggs argues that the elements instruction
given to the jury was improper because (1) it did not expressly
instruct the jury that “an essential element of the second-degree assault was ‘unlawful’ action” 7 and (2) it did not define
“‘unlawful’” action. 8
[5] But Briggs did not object to the elements instruction on
either of these grounds during the instruction conference. Nor
did his proposed elements instruction include reference to the
term “unlawfully” or purport to define that term. The failure
to object to a jury instruction after it has been submitted to
counsel for review precludes raising an objection on appeal
absent plain error. 9 We therefore conclude that Briggs has not
preserved this argument for appellate review, and we decline
to review it for plain error. We do, however, address the substance of this argument later in the opinion when examining
Briggs’ claim of ineffective assistance of trial counsel.
5
Id.
6
Id.
7
Brief for appellant at 18.
8
Id.
9
State v. Hinrichsen, 292 Neb. 611,
877 N.W.2d 211 (2016).
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317 Nebraska Reports
STATE V. BRIGGS
Cite as 317 Neb. 296
2. Motion to Dismiss/Insufficiency
of Evidence
[6,7] In his second assignment of error, Briggs argues the
trial court erred in denying his motion to dismiss at the close
of the State’s evidence. In a criminal case, a motion to dismiss
at the close of all the evidence has the same legal effect as a
motion for a directed verdict. 10 And a motion for a directed
verdict is simply another name for a motion for judgment of
acquittal. 11 All three motions assert that the defendant should
be acquitted of the charge because there is no legally sufficient
evidentiary basis on which a reasonable jury could return a
guilty verdict. 12 Thus, however styled, this type of motion
made at the close of all the evidence challenges the sufficiency
of the State’s evidence to sustain the conviction. 13
Briggs contends that, based on the language of
§ 28-309(1)(c), “unlawful” 14 conduct is a material element of
the charged crimes, and he argues the State failed to prove this
element. But the appellate record demonstrates that the trial
court was unaware of his contention that “[u]nlawfully” was
a material element of the crimes charged. That is so because
when Briggs moved to dismiss, he made only a general argument that the evidence was insufficient to demonstrate a prima
facie case on all the elements. Briggs did not argue that the
term “unlawfully” was a material element of the offense,
nor did he argue—to either the court or the jury—that there
was insufficient evidence showing his conduct was unlawful. Instead, Briggs’ closing argument referred the jury to the
“intentionally or knowingly” language included by the court
in instruction No. 4, and Briggs argued the State’s evidence
was insufficient to prove beyond a reasonable doubt that he
10
State v. Dixon, 306 Neb. 853,
947 N.W.2d 563 (2020).
11
Id.
12
Id.
13
Id.
14
Brief for appellant at 15.
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STATE V. BRIGGS
Cite as 317 Neb. 296
intentionally or knowingly struck or wounded Masoodi and
Kerns. The jury rejected that argument.
Because Briggs presents an argument on appeal that was
not presented to, considered by, or ruled upon by the trial
court in connection with his motion to dismiss, he has failed
to preserve the issue for appellate review. 15 As explained next,
however, we address the substance of this argument when considering Briggs’ claim of ineffective assistance of trial counsel.
3. Ineffective Assistance Claims
Briggs argues that his trial counsel was ineffective in two
respects: (1) failing to object to instruction No. 4 and (2) failing to advise the trial court of amendments to the habitual
criminal statute at the time of sentencing. Before addressing these claims of ineffective assistance, we recall the general principles that govern our review of such claims on
direct appeal.
[8-10] In reviewing claims of ineffective assistance of
counsel on direct appeal, an appellate court decides only
whether the undisputed facts contained within the record are
sufficient to conclusively determine whether counsel did or
did not provide effective assistance and whether the defendant
was or was not prejudiced by counsel’s alleged deficient performance. 16 To show that counsel’s performance was deficient,
the defendant must show counsel’s performance did not equal
that of a lawyer with ordinary training and skill in criminal
law. 17 To show prejudice from counsel’s deficient perform
ance, the defendant must demonstrate a reasonable probability
that but for counsel’s deficient performance, the result of the
proceeding would have been different. 18
15
E.g., de Vries v. L & L Custom Builders, 310 Neb. 543,
968 N.W.2d 64
(2021) (appellate court will not consider issue on appeal that was not
presented to or passed upon by trial court).
16
State v. Clark,
315 Neb. 736,
1 N.W.3d 487 (2024).
17
State v. Turner,
315 Neb. 661,
998 N.W.2d 783 (2024).
18
Id.
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STATE V. BRIGGS
Cite as 317 Neb. 296
With these principles in mind, we analyze each of Briggs’
ineffective assistance claims.
(a) Claim Related to Elements Instruction
Briggs argues his trial counsel performed deficiently
because (1) he did not object to instruction No. 4 on the
ground that it failed to instruct that “an essential element of
the second-degree assault was ‘unlawful’ action” 19 and (2) he
did not request an instruction defining “‘unlawful’” action. 20
Briggs contends he was prejudiced thereby because instruction No. 4, as given, allowed the jury to convict him of second degree assault “without requiring the jury to consider an
essential element of the charged offense.” 21
We understand Briggs to argue that because § 28-309(1)(c)
proscribes “[u]nlawfully” striking or wounding another, the
State was required to prove that his conduct violated some
other law, and he contends the State could have done so by
“something so basic as [introducing] a certified copy of a
statute criminalizing disturbing the peace.” 22 We think Briggs’
singular focus on the term “unlawfully” is misplaced.
Section 28-309(1)(c) uses the phrase “[u]nlawfully strikes
or wounds,” and we consider the entire statutory phrase in
context. 23 In State v. Levell, 24 we recognized that this statutory language is a codification of “the basic law of assault
and battery.” Similarly, in Wagner v. State, 25 we explained
19
Brief for appellant at 18.
20
Id.
21
Id. at 23.
22
Id. at 17.
23
McGill Restoration v. Lion Place Condo. Assn., 313 Neb. 658, 664,
986
N.W.2d 32, 37 (2023) (reciting rule that when construing statutes, “our
focus is, as always, identifying the plain and ordinary meaning of the
statutory language, understood in context, and then giving effect to that
meaning”).
24
State v. Levell,
181 Neb. 401, 404,
149 N.W.2d 46, 49 (1967).
25
Wagner v. State,
43 Neb. 1, 3,
61 N.W. 85, 86 (1894).
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that the phrase “‘unlawfully strike or wound another’” is
“substantially the common[-]law definition of a battery.”
[11,12] It is well settled that when a criminal statute
describes an offense by using common-law terms without
further definition, the offense is to be construed with reference to the common law. 26 We apply this principle to construe the phrase “[u]nlawfully strikes or wounds another” in
§ 28-309(1)(c), and conclude it is referring to common-law
battery.
[13] Nebraska has generally defined the elements of
common-law battery as “intentional, unlawful physical violence or contact inflicted on a human being without . . .
consent.” 27 At common law, the crime of battery “consisted
of ‘the unlawful application of force to the person of another,’
including an offensive touching.” 28 Common-law battery thus
requires “unlawful” 29 or “offensive” 30 contact, which is generally understood to mean intentional physical contact that
is not consented to and is unwarranted by the social usages
prevalent at the time and place at which the contact is inflicted. 31 Offensive conduct violates a reasonable sense of personal dignity. 32 We have generally described this as contact
that is “‘against the wish and will’” of the person contacted. 33
26
Id.
27
State v. Auman,
232 Neb. 341, 344,
440 N.W.2d 254, 257 (1989).
28
U.S. v. Delis,
558 F.3d 177, 180 (2d Cir. 2009) (quoting 2 Wayne R.
LaFave, Substantive Criminal Law § 16.2).
29
Id.
30
See 92 Am. Jur. Trials 1, § 16 (2004). See, also, Perez Hernandez v.
U.S.,
286 A.3d 990 (D.C. App. 2022); United States v. Alvarez-Murillo,
No. EP:23-CR-01095-ATB,
2024 WL 1146139 at *4 (W.D. Tex. Mar. 14,
2024).
31
See
id.
32
92 Am. Jur. Trials, supra note 30. See, also, Alvarez-Murillo, supra note
30;
Auman, supra note 27.
33
Schleif v. State,
131 Neb. 875, 877,
270 N.W. 510, 511 (1936).
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In the criminal context, common-law battery must be “‘willful,’” meaning the contact was made intentionally, recklessly,
or with criminal negligence; accidental or inadvertent contact
is not sufficient. 34
[14] All the jury instructions must be read together, and if,
taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings
and the evidence, there is no prejudicial error necessitating
reversal. 35 Here, the jury was instructed that in order to convict Briggs of second-degree assault, it had to find beyond a
reasonable doubt that “[Briggs] [d]id intentionally or knowingly strike or wound [the victim].” A separate instruction
defined “intentionally” to mean “willfully or purposefully,
and not accidentally or involuntarily,” and defined “knowingly” to mean “with knowledge or perception of facts requisite to make up the crime.” We conclude these instructions
drew appropriately from the common-law definition of battery
and described the elements of the offense in the language of
the statute. 36
Because the elements instruction and related definitions
correctly stated the law and encompassed all the material elements of the charged crime, the record on appeal is sufficient
for us to conclusively determine that Briggs’ trial counsel was
not deficient either in failing to object to the elements instruction or in failing to request a separate definition of the term
“unlawfully.”
(b) Claim Related to Habitual Criminal Statute
Briggs’ second claim of ineffective assistance is premised
on amendments made to the habitual criminal statute in
34
See Alvarez-Murillo, supra note 30, 2024 WL 1146139 at *2. See, also,
Perez Hernandez, supra note 30;
Auman, supra note 27;
Schleif, supra
note 33; 92 Am. Jur Trials, supra note 30.
35
State v. Tvrdy,
315 Neb. 756,
1 N.W.3d 479 (2024).
36
See State v. Swindle,
300 Neb. 734, 744,
915 N.W.2d 795, 805 (2018)
(“[i]n giving instructions to the jury, it is proper for the court to describe
the offense in the language of the statute”).
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2023, which we discuss in more detail below. Briggs argues
that his trial counsel was deficient for failing to bring these
amendments to the attention of the trial court at the time of
sentencing and for failing to request a sentence in conform
ity with the amendments. He argues that he was prejudiced
by this deficient performance because the mandatory minimum term required by the amended habitual criminal statute
is shorter than the mandatory minimum term imposed by
the court.
Briggs was sentenced on July 6, 2023, and his notice of
appeal was filed the next day. At the time his sentences were
imposed, the applicable habitual criminal statute was § 29-2221
(Reissue 2016). Briggs does not contend that his sentences
failed to comply with the provisions of § 29-2221 as it existed
on the date he was sentenced.
However, Briggs correctly notes that effective September 2,
2023, § 29-2221 was amended to add new provisions in subparagraph (1)(c). 37 Those new provisions of § 29-2221 (Supp.
2023), quoted below, effectively reduce the mandatory minimum term of a habitual criminal enhancement from 10 years to
3 years when certain criteria are met:
(1) Whoever has been twice convicted of a crime,
sentenced, and committed to prison, in this or any other
state or by the United States or once in this state and
once at least in any other state or by the United States,
for terms of not less than one year each shall, upon conviction of a felony committed in this state, be deemed to
be a habitual criminal and shall be punished by imprisonment in a Department of Correctional Services adult
correctional facility for a mandatory minimum term of
ten years and a maximum term of not more than sixty
years, except that:
....
37
See 2023 Neb. Laws, L.B. 50.
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(c) If the felony committed and at least one of the prior
felony convictions do not involve sexual contact, sexual
penetration, the threat to inflict serious bodily injury or
death on another person, the infliction of serious bodily
injury on another person, a deadly or dangerous weapon,
or a firearm, the mandatory minimum term shall be three
years and the maximum term not more than the maximum
term for the felony committed or twenty years, whichever
is greater. For this subdivision (1)(c) to apply, no prior
felony conviction may be a violation described in subdivision (1)(a) of this section[.]
On appeal, Briggs contends that he meets the requirements
set out in subsection (c) of § 29-2221(1), and the State does
not dispute that contention. As stated, Briggs argues that his
counsel was ineffective because he failed to bring the amended
provisions of § 29-2221(1)(c) to the attention of the sentencing court and he failed to request sentences in conformity with
the amendments. Briggs also argues it was plain error for the
trial court not to sentence him under those amended provisions.
We disagree.
First, we soundly reject Briggs’ suggestion that the trial
court plainly erred in not sentencing him under the amended
version of § 29-2221. It is undisputed that on the date of
Briggs’ sentencing hearing, the amendments to § 29-2221 were
not yet in effect. The trial court properly utilized the habitual
criminal statute in effect at the time of sentencing, imposing
sentences that were correct under that statute.
We also reject Briggs’ argument that his trial counsel was
deficient because “[a]t sentencing, trial counsel did not argue
the changes to Neb. Rev. Stat. [§] 29-2221 . . . limited the
mandatory minimum sentence on each count of the amended
information to a maximum mandatory minimum of 3 years.” 38
Because the amended provisions in § 29-2221(1)(c) had not
yet become effective, defense counsel was not deficient in
38
Brief for appellant at 23.
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failing to argue that the provisions applied to Briggs at the
time of his sentencing hearing, and Briggs has not asserted or
argued that counsel was deficient in failing to seek a continuance of the sentencing hearing to a date after the amendments
became effective.
[15] That said, we conclude that under the circumstances
presented here, the law requires that we remand this matter
for resentencing under the version of § 29-2221 currently in
effect. In State v. Randolph, 39 we adopted the rule that “where
a criminal statute is amended by mitigating the punishment,
after the commission of a prohibited act but before final judgment, the punishment is that provided by the amendatory act
unless the Legislature has specifically provided otherwise.”
The State agrees the Randolph rule applies here because the
amendment to § 29-2221 mitigated Briggs’ punishment, the
Legislature did not specifically provide that the amendatory
act was not to apply in cases that had not yet reached final
judgment, and no final judgment had been entered in this matter. 40 We therefore vacate Briggs’ sentences and remand the
cause for resentencing under the current version of § 29-2221.
V. CONCLUSION
For the foregoing reasons, we affirm Briggs’ convictions but
vacate the sentences and remand the cause for resentencing
under the version of § 29-2221 currently in effect.
Affirmed in part, and in part sentence vacated
and cause remanded with directions.
39
State v. Randolph, 186 Neb. 297, 301-02,
183 N.W.2d 225, 228 (1971).
40
See, e.g., Shuck v. Jacob, 250 Neb. 126,
548 N.W.2d 332 (1996)
(recognizing criminal conviction and sentence not considered final
judgments until after appeal); State v. Schrein, 247 Neb. 256,
526 N.W.2d
420 (1995) (same).
