State v. Hense

753 N.W.2d 832

276 Neb. 313

STATE of Nebraska, appellant, v. Glenn A. HENSE, appellee.

No. S-07-875.

Supreme Court of Nebraska.

August 1, 2008.

Gary Lacey, Lancaster County Attorney, and Krista Hendrick for appellant.

Dennis R. Keefe, Lancaster County Public Defender, Timothy M. Eppler, and Valerie R. McHargue, Senior Certified Law Student, for appellee.

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

MILLER-LERMAN, J.

NATURE OF CASE

Glenn A. Hense pled guilty to the felony charge of operating a motor vehicle in a period during which his license had been revoked. See Neb. Rev. Stat. § 60-6,197.06 (Cum. Supp 2006). The district court for Lancaster County sentenced Hense to probation for 2 years but did not order a further revocation of his operator's license as part of the sentence. The State asserts that a 15-year revocation is mandatory under § 60-6,197.06. The State brought this error proceeding pursuant to Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2006). The State takes exception to the district court's failure to impose a 15-year revocation of Hense's license. We sustain the State's exception; however, because of the limitations placed on the court under § 29-2315.01 and Neb. Rev. Stat. § 29-2316 (Cum. Supp. 2006), we conclude that Hense's sentence is not affected by our decision in this error proceeding.

STATEMENT OF FACTS

As a result of a conviction for driving under the influence, third offense, Hense's operator's license was revoked for a period of 15 years, which will end in 2012. On September 3, 2006, Hense was arrested for operating a motor vehicle during such period of revocation. Hense was charged with a Class IV felony, operating a motor vehicle during revocation, in violation of § 60-6,197.06. On February 13, 2007, he pled guilty to the charge.

The matter originally came on for sentencing on April 25, 2007. However, the district court continued sentencing until May 23 in order to allow the court to research and determine whether it was required under § 60-6,197.06 to revoke Hense's operator's license for 15 years as part of any sentence of probation that was to be imposed for the current offense of driving during revocation.

At the sentencing hearing, the court noted that prior to an amendment which became effective July 14, 2006, § 60-6,197.06 did not include language requiring license revocation as part of the sentence for a violation of the statute. The 2006 amendment added the following language:

[T]he court shall, as part of the judgment of conviction, revoke the operator's license of such person for a period of fifteen years from the date ordered by the court and shall issue an order pursuant to section 60-6,197.01. Such revocation and order shall be administered upon sentencing upon final judgment of any appeal or review, or upon the date that any probation is revoked.

See 2006 Neb. Laws, L.B. 925, § 12.

The court concluded that § 60-6,197.06 does not mandate a 15-year revocation as part of an order of probation. In so concluding, the court focused on the last phrase of the statute stating that revocation is to be administered "upon the date that any probation is revoked." The court compared § 60-6,197.06 to another statute that specifically required that revocation be part of an order of probation, and the court concluded that the absence of such language in § 60-6,197.06 indicated that revocation was not required to be part of an order of probation under § 60-6,197.06. Based on such conclusion, the court sentenced Hense to probation for a period of 2 years but did not order a revocation of his operator's license as part of the sentence.

The State requested and the Nebraska Court of Appeals granted leave to file this appeal pursuant to § 29-2315.01. Hense sought to bypass the Court of Appeals, and we granted the petition to bypass.

ASSIGNMENT OF ERROR

The State asserts that the district court erred when it failed to impose a 15-year revocation of Hense's operator's license as part of the sentence for the offense of driving during a period of revocation. The State claims that such 15-year revocation is mandatory under § 60-6,197.06.

STANDARD OF REVIEW

Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below. State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008).

ANALYSIS

Revocation Is Mandatory in a Conviction Under § 60-6,197.06.

The State asserts that the district court erred when it failed to impose a 15-year revocation of Hense's operator's license as part of his sentence of probation for having committed the offense of driving during a period of revocation. The State claims that revocation is mandatory under § 60-6,197.06 and that the district court erred when it concluded that § 60-6,197.06 does not require a 15-year revocation when a defendant is sentenced to probation. We agree with the State and conclude that a 15-year revocation is required to be imposed as part of any sentence for a conviction under § 60-6,197.06, including a sentence of probation.

Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Rodriguez-Torres, supra. For a court to inquire into a statute's legislative history, the statute in question must be open to construction, and a statute is open to construction when its terms require interpretation or may reasonably be considered ambiguous. In re Interest of Destiny A. et al., 274 Neb. 713, 742 N.W.2d 758 (2007). A statute is ambiguous when the language used cannot be adequately understood either from the plain meaning of the statute or when considered in pari materia with any related statutes. Id.

As noted above, the language of § 60-6,197.06 at issue in this case was added to the statute in 2006. The first sentence of the 2006 amendment provides that "the court shall, as part of the judgment of conviction [for felony operation of a motor vehicle during revocation], revoke the operator's license of such person for a period of fifteen years from the date ordered by the court and shall issue an order pursuant to section 60-6,197.01." (Emphasis supplied.) As a general rule, the word "shall" is considered mandatory and is inconsistent with the idea of discretion. State v. Pathod, 269 Neb. 155, 690 N.W.2d 784 (2005). Therefore, the plain and ordinary meaning of the first sentence is that it is mandatory that the court revoke the operator's license of a person convicted under the statute for 15 years and that the court does not have discretion as to whether or not it imposes such revocation. We note that the same sentence provides that such revocation is to be imposed "as part of the judgment of conviction." In a criminal case, the judgment is the sentence. State v. Vela, 272 Neb. 287, 721 N.W.2d 631 (2006). Probation is a sentence. See, Neb. Rev. Stat. § 29-2246(4) (Cum. Supp 2006) (defining "[probation" as a sentence); Neb. Rev. Stat. § 29-2260(4) (Reissue 1995) (providing that when convicted offender is not sentenced to imprisonment, court may sentence him or her to probation). Therefore, the "judgment of conviction" as used in § 60-6,197.06 encompasses an order imposing probation. The first sentence of the 2006 amendment to § 60-6,197.06 does not contain language limiting its effect to specific types of judgments or excluding judgments that include an order of probation. Examination of the first sentence of § 60-6,197.06, standing alone, indicates that a 15-year period of revocation is required to be imposed as part of the sentence of probation for a violation of § 60-6,197.06.

Although the first sentence of the amendment is clear in itself, the amendment, when read as whole, may reasonably be considered ambiguous, because the second sentence of § 60-6,197.06 provides that the revocation "shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked." (Emphasis supplied.) Language that the revocation is to be administered upon, inter alia, "the date that any probation is revoked" could be read to imply that revocation is not required to be a part of an order of probation and that instead, revocation is to be imposed only when probation has been revoked. The statute can reasonably be considered ambiguous, because although the first sentence of the amendment states that a 15-year revocation must be part of a judgment of conviction, the second sentence of the amendment implies that a 15-year revocation would not necessarily be part of a judgment of conviction that orders probation, but, rather, must be administered upon the revocation of probation.

Because the amended portion of § 60-6,197.06 is ambiguous, we look to the legislative history of the amendment. The 2006 amendment was part of L.B. 925, which contained amendments to various laws relating to driving under the influence (DUI). The Introducer's Statement of Intent stated that the bill sought, inter alia, "to strengthen and clarify certain portions of Nebraska's existing DUI and DUI related laws." Judiciary Committee, 99th Leg., 2d Sess. (Jan. 19, 2006). The Statement of Intent specifically noted that the bill "[r]equires the imposition of a fifteen (15) year license revocation as part of any sentence for felony Operation of a Motor Vehicle During Suspension." Id. At the committee hearing on L.B. 925, the senator who introduced the bill commented that the bill "requires the imposition of a 15-year license revocation as part of any sentence for felony operation of a motor vehicle during suspension." Judiciary Committee Hearing, 99th Leg., 2d Sess. 22 (Jan. 19, 2006). The legislative history therefore evinces the intent that a 15-year revocation was to be part of "any sentence"...