State v. Gnewuch

1

316 Neb. 47

State of Nebraska, appellee, v. Nathaniel L. Gnewuch, appellant.

No. S-23-038

Supreme Court of Nebraska

March 1, 2024

1. Constitutional Law: Statutes: Judgments: Appeal and Error. The constitutionality of a statute presents a question of law, which an appellate court is obligated to review independent of the conclusion reached by the court below.

2. Constitutional Law: Statutes. No legislative act shall be held unconstitutional except by the concurrence of five judges of the Supreme Court.

3. Statutes. It is not within the province of the courts to read direct and plain language out of a statute. No word should be rejected as meaningless or superfluous if it can reasonably be avoided.

4. Convictions: Judgments: Sentences. Although in certain circumstances "conviction" may mean a finding of guilty, the judgment in a criminal case is, or necessarily includes, the sentence.

5. Convictions: Judgments. The plain language of Neb. Rev. Stat. § 29-2292(1) (Cum. Supp. 2022) requires that the defendant be found guilty before making a request of the court to defer the entry of the judgment of conviction and that the prosecutor and the defendant have an opportunity to be heard regarding the request.

6. Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitutional, and all reasonable doubts are resolved in favor of its constitutionality.

7. Constitutional Law: Statutes. Where a statute is susceptible of two constructions, under one of which the statute is valid while under the other it is unconstitutional or of doubtful validity, that construction which gives it validity should be adopted.

8. Criminal Law: Courts: Jurisdiction. In a deferred sentence, the district court retains jurisdiction and only a conditional order, not a judgment and sentence, is entered; therefore there is no "final judgment" in the usual sense.

9. Criminal Law: Courts. In entering an order of deferred judgment, the court defers the entry of a judgment of conviction and imposition of a sentence and instead enters a conditional order placing the defendant on probation. It does not sentence the defendant to probation as it does when it enters a judgment of conviction and imposes sentence.

10. Constitutional Law. The purpose of the Nebraska Constitution is to prescribe the permanent framework of our system of government, to assign to the three departments their respective powers and duties, and to establish certain fixed principles upon which our government is to be conducted.

11. ___. Under Nebraska's plan of government, although the three depart ments are separate, none can overlook the authority of another department, for all three departments are mutually dependent, which fact guarantees that governmental machinery will run smoothly.

12. Statutes: Legislature: Public Policy. It is the function of the Legislature, through the enactment of statutes, to declare what is the law and public policy of Nebraska.

13. Legislature. The Legislature is not the sovereign authority, and, though vested with the exercise of one branch of the sovereignty, the Legislature is nevertheless, in wielding it, hedged in on all sides by important limitations, some of which are imposed in express terms, and others by implications which are equally imperative.

14. Constitutional Law. The chief executive function is to take care that the laws be faithfully executed.

15. Constitutional Law: Criminal Law: Prosecuting Attorneys: Probable Cause. Prosecutorial discretion is an inherent executive power and one of the key aspects of prosecutorial discretion is the charging function, which is the power to determine what, if any, charges should be brought against a person accused of committing a crime. As a result of the charging function, the prosecutor has the discretion to choose to charge any crime that probable cause will support or, if the prosecutor chooses, not to charge the accused at all.

16. Courts: Sentences. Sentencing is an inherent judicial function and can in no way be transferred to a prosecutor.

17. Courts: Legislature: Sentences. Sentencing is necessarily a subjective judgment left mainly to the trial court's discretion, and the boundaries of that discretion are a matter for the Legislature.

18. Constitutional Law. The constitutional principle of separation of powers demands that in the course of any overlapping exercise of the three branches' powers, no branch may significantly impair the ability of any other in its performance of its essential functions.

19. __. While longstanding practices of government may not be determi native of a constitutional question, they can inform a determination of whether a particular delegation of power is constitutional.

20. Constitutional Law: Criminal Law: Courts: Sentences. Under the Nebraska Constitution, the power to define criminal conduct and fix its punishment is vested in the legislative branch, whereas the imposition of a sentence within these legislative limits is a judicial function.

21. Constitutional Law: Prosecuting Attorneys. The role of the prosecutor, and its executive function, is severely diminished upon a finding of guilt.

22. Prosecuting Attorneys: Sentences. While the prosecutor may participate in the sentencing proceedings, the prosecutor may not control or decide what a guilty offender's punishment shall be.

23. Criminal Law: Courts: Sentences. In Nebraska, after a criminal defendant is found guilty of an offense, it is then solely the role of the judiciary to sentence the defendant.

24. Criminal Law: Courts. Once a criminal defendant's guilt is established, control over the disposition of the criminal proceeding falls exclusively within the judiciary.

25. Constitutional Law. The deferred judgment scheme enacted by the Legislature in 2019 Laws, L.B. 686, does not violate the separation of powers guaranteed in article II, § 1, of the Nebraska Constitution.

Appeal from the District Court for Madison County: James G. Kube, Judge. Judgment reversed, sentence vacated, and cause remanded for further proceedings.

Chelsey R. Hartner, Chief Deputy Madison County Public Defender, for appellant. Michael T. Hilgers, Attorney General, and Jordan Osborne and Erin E. Tangeman for appellee.

Christopher L. Eickholt, of Eickholt Law, L.L.C., for amicus curiae Nebraska Criminal Defense Attorneys Association.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Heavican, C.J.

I. INTRODUCTION

Nathaniel Loren Gnewuch (the record indicates that court documents erroneously have Gnewuch's middle initial as "M.") appeals from his sentence of 18 months' probation after the district court refused to consider his motion for a deferred sentence under Neb. Rev. Stat. § 29-2292 (Cum. Supp. 2022) because the court concluded that the statute was unconstitutional. We granted Gnewuch's petition to bypass the Nebraska Court of Appeals to address the constitutionality of § 29-2292.

Article V, § 2, of the Nebraska Constitution provides in part: "No legislative act shall be held unconstitutional except by the concurrence of five judges." Because five judges of this court do not hold that § 29-2292 is unconstitutional, it is constitutional. Accordingly, the district court's judgment is reversed, Gnewuch's sentence is vacated, and the cause is remanded for the district court to consider Gnewuch's motion for deferred judgment.

II. BACKGROUND

In accordance with a plea agreement, Gnewuch pleaded guilty to an amended information charging a single count of operating a motor vehicle to avoid arrest-willful reckless, a Class IV felony,^[1] and the State recommended a sentence of probation. The charge stemmed from an attempted traffic stop, wherein law enforcement officers in marked cruisers attempted to stop Gnewuch. Although the officers' attempt to stop Gnewuch was apparent to him, he attempted to outrun the officers.

The record and presentence investigation report reflect that Gnewuch is a U.S. Marine Corps veteran who moved from California to Nebraska to care for his aging grandparents approximately 3 months before the incident. Before his relocation, Gnewuch was being treated and medicated for post-traumatic stress disorder with schizophrenic symptoms resulting from his deployment in Afghanistan, where he suffered a traumatic brain injury. However, once in Nebraska, Gnewuch was denied such medication by the Department of Veterans Affairs until after the incident leading to the instant conviction.

Between the plea hearing and sentencing hearing, Gnewuch filed a motion for deferred sentence under § 29-2292, and the district court took up the motion at the sentencing hearing. In support of his motion, Gnewuch emphasized the "mental health overlay" in the case and contended that he was a good candidate for a deferred judgment.

The State did not "necessarily believe that [deferred judgment was] a fit for this particular case." Yet, "[a]bove and beyond that," the State expressed its "serious constitutional concerns regarding the deferred sentence statute." The State expressed concern that "there are separation of power issues" with the deferred judgment statutes; however, it did not elaborate further on its constitutional concerns. As to sentencing, the State recommended that Gnewuch receive a sentence of probation.

The district court denied Gnewuch's request for a deferred judgment, concluding that § 29-2292 was unconstitutional. The court reasoned that the deferred judgment statutes violate the Nebraska Constitution because the court would be imposing a sentence of probation before the entry of a judgment of conviction, and thus, the court lacked jurisdiction to do so despite the Legislature's statutory authorization. Therefore, the...