State v. Harris

284 Neb. 214

817 N.W.2d 258

STATE of Nebraska, appellee,

v.Jason HARRIS, appellant.

No. S–11–527.

Supreme Court of Nebraska.

July 27, 2012.

Syllabus by the Court

[284 Neb. 214]1. Constitutional Law: Statutes: Judgments: Appeal and Error. The constitutionality and construction of a statute are questions of law, regarding which an appellate court is obligated to reach conclusionsindependent of those reached by the court below.

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

3. Constitutional Law: Standing. Standing to challenge the constitutionality of a statute under the federal or state Constitution depends upon whether one is, or is about to be, adversely affected by the language in question; to establish standing, the contestant must show that as a consequence of the alleged unconstitutionality, the contestant is, or is about to be, deprived of a protected right.

4. Constitutional Law: Convictions: Statutes. A defendant is prohibited from attempting to circumvent or avoid conviction under a particular statute by asserting a constitutional challenge to another, collateral statute which is irrelevant to the prosecution.

5. Constitutional Law: Statutes: Proof. A challenge to a statute, asserting that no valid application of the statute exists because it is unconstitutional on its face, is a facial challenge. But a plaintiff can only succeed in a facial challenge by establishing that no set of circumstances exists under which the act would be valid, i.e., that the law is unconstitutional in all of its applications.

6. Constitutional Law: Statutes: Waiver. In order to bring a constitutional challenge to the facial validity of a statute, the proper procedure is to file a motion to quash, and all defects not raised in a motion to quash are taken as waived by a defendant pleading the general issue.

7. Constitutional Law: Statutes: Pleas. Challenges to the constitutionality of a statute as applied to a defendant are properly preserved by a plea of not guilty.

8. Constitutional Law: Appeal and Error. The Nebraska Supreme Court ordinarily construes Nebraska's ex post facto clause to provide no greater protections than those guaranteed by the federal Constitution.

9. Constitutional Law: Statutes: Sentences. Both U.S. Const. art. I, § 10, and Neb. Const. art. I, § 16, provide that no ex post facto law may be passed. A law which purports to apply to events that occurred before the law's enactment, and which disadvantages a defendant by creating or enhancing penalties that did not exist when the offense was committed, is an ex post facto law and will not be endorsed by the courts.

10. Constitutional Law: Criminal Law: Other Acts: Time. The retroactive application of civil disabilities and sanctions is permitted; it is only criminal punishment that the Ex Post Facto Clause prohibits.

11. Sentences: Statutes: Legislature: Intent. In order to determine whether a statute imposes civil sanctions or criminal punishment, a court must apply the two-pronged intent-effects test. It must first ascertain whether the Legislature intended the statute to establish civil proceedings. This is a question of statutory construction. If the intention of the Legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, a court must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it “civil.”

12. Sentences: Statutes: Legislature: Intent: Proof. Because an appellate court ordinarily defers to the Legislature's stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.

13. Sentences: Statutes: Intent. In determining whether a statutory scheme is so punitive that it effectively transforms the statute from a civil statute to a criminal statute, a court refers to the seven factors noted in Kennedy v. Mendoza–Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). The factors are neither exhaustive nor dispositive but are useful guideposts. The following seven factors serve as guideposts: (1) whether the sanction involves an affirmative disability or restraint, (2) whether it has historically been regarded as punishment, (3) whether it comes into play only on a finding of scienter, (4) whether its operation will promote the traditional aims of punishment—retribution and deterrence, (5) whether the behavior to which it applies is already a crime, (6) whether an alternative purpose to which it may rationally be connected is assignable for it, and (7) whether it appears excessive in relation to the alternative purpose assigned.

14. Appeal and Error. Errors that are assigned but not argued will not be addressed by an appellate court.

15. Constitutional Law: Equal Protection: Statutes: Presumptions: Proof. Where a statute is challenged under the Equal Protection Clause, the general rule is that legislation is presumed to be valid, and the burden of establishing the unconstitutionality of the statute is on the one attacking its validity.

16. Equal Protection. The Equal Protection Clause does not forbid classifications; it simply keeps governmental decisionmakers from treating differently persons who are in all relevant aspects alike.

17. Equal Protection: Proof. The initial inquiry in an equal protection analysis focuses on whether the challenger is similarly situated to another group for the purpose of the challenged governmental action. Absent this threshold showing, one lacks a viable equal protection claim. In other words, the dissimilar treatment of dissimilarly situated persons does not violate equal protection rights.

18. Equal Protection: Statutes. In an equal protection challenge to a statute, the level of judicial scrutiny applied to a particular classification may be dispositive.

19. Constitutional Law: Statutes. Legislative classifications involving either a suspect class or a fundamental right are analyzed with strict scrutiny, and legislative classifications not involving a suspect class or fundamental right are analyzed using rational basis review.

20. Equal Protection: Words and Phrases. The “right to travel” includes at least three different components: (1) the right of a citizen of one state to enter and to leave another state, (2) the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state, and (3) for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state.

21. Equal Protection: Statutes. When a classification created by state action does not jeopardize the exercise of a fundamental right or categorize because of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest.

22. Constitutional Law: Statutes: Legislature: Intent. Under rational basis review, an appellate court will uphold a classification created by the Legislature where it has a rational means of promoting a legitimate government interest or purpose. In other words, the difference in classification need only bear some relevanceto the purpose for which the difference is made.

23. Equal Protection: Proof. Under the rational basis test, whether an equal protection claim challenges a statute or some other government act or decision, the burden is upon the challenging party to eliminate any reasonably conceivable state of facts that could provide a rational basis for the classification.

Joshua W. Weir, of Dornan, Lustgarten & Troia, P.C., L.L.O., Omaha, for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, McCORMACK, MILLER–LERMAN, and CASSEL, JJ.

MILLER–LERMAN, J.

NATURE OF CASE

Jason Harris appeals his Class IV felony conviction under Neb.Rev.Stat. § 29–4011(1) (Cum.Supp.2010) based on his failure to comply with certain registration provisions of Neb.Rev.Stat. § 29–4004(9) (Cum.Supp.2010) of the Sex Offender Registration Act (SORA), Neb.Rev.Stat. §§ 29–4001 through 29–4014 (Reissue 2008, Cum.Supp.2010 & Supp.2011). Harris claims that the district court for Lancaster County erred when it rejected his constitutional challenges to SORA. We conclude that the challenges asserted by Harris are without merit, and we therefore affirm Harris' conviction.

STATEMENT OF FACTS

Harris was convicted of sexual assault of a child and third degree sexual assault in 2001. He was sentenced by the district court for Sheridan County to imprisonment for 3 to 5 years on the first count and for 1 year on the second count. The court found that Harris was not a “ ‘violent sexual offender.’ ” At his sentencing, Harris was given notice that he would be required to register as a sex offender upon his release from prison and for the next 10 years thereafter. Harris began registering upon his release from prison in 2003.

In 2009, Harris began to register as what is commonly referred to as a “transient” because he was frequently on the road either for his job as a truckdriver or for his work providing sound, light, and tour support for national bands. He maintained an office and mailing address at an apartment in which he had lived in Lincoln, Nebraska. As a transient, Harris was required under § 29–4004(9) to update his registration information at least once every 30 days.

Harris updated his registration with the Lancaster County sheriff on April 5, 2010, and was therefore required to complete his next update by May 5. Harris failed to timely provide his update. Harris asserted that he intended to update his information on May 5, but his truck broke down in Iowa that day, he arrived in Lincoln late on May 5, and he had to leave on a...