28-105.02. Class IA felony; person under eighteen years; maximum sentence; court consider mitigating factors.
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/ne/chapter-28/28-105-02A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
(1)Notwithstanding any other provision of law, the penalty for any person convicted of a Class IA felony for an offense committed when such person was under the age of eighteen years shall be a maximum sentence of not greater than life imprisonment and a minimum sentence of not less than forty years' imprisonment.
(2)In determining the sentence of a convicted person under subsection
(1)of this section, the court shall consider mitigating factors which led to the commission of the offense. The convicted person may submit mitigating factors to the court, including, but not limited to:
(a)The convicted person's age at the time of the offense;
(b)The impetuosity of the convicted person;
(c)The convicted person's family and community environment;
(d)The convicted person's ability to appreciate the risks and consequences of the conduct;
(e)The convicted person's intellectual capacity; and
(f)The outcome of a comprehensive mental health evaluation of the convicted person conducted by an adolescent mental health professional licensed in this state. The evaluation shall include, but not be limited to, interviews with the convicted person's family in order to learn about the convicted person's prenatal history, developmental history, medical history, substance abuse treatment history, if any, social history, and psychological history.
A sentence of 70 years' to life imprisonment was not excessive or a de facto life sentence for an offender who, at age 14, murdered his younger sister. State v. Thieszen, 300 Neb. 112, 912 N.W.2d 696 (2018).
A sentence of 110 to 126 years' imprisonment for a murder committed at age 17 was not excessive or a de facto life sentence; the court considered the relevant sentencing factors along with the offender's youth and attendant characteristics and the fact that the offender would be eligible for parole at age 72. State v. Russell, 299 Neb. 483, 908 N.W.2d 669 (2018).
The defendant's resentencing of 60 to 80 years' imprisonment with credit for time served for murder committed as a juvenile offender did not violate Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), where the defendant was not sentenced to life imprisonment without parole and instead had the opportunity for parole in just under 14 years, a full mitigation hearing was held before his sentencing at which both the State and the defendant were given an opportunity to present evidence, and the court stated that it had to consider the fact that a jury convicted the defendant of murder in the first degree but also had to consider the mitigating factors under this section, as well as a psychological evaluation.
State v. Jackson, 297 Neb. 22, 899 N.W.2d 215 (2017).
Subsection
(1)of this section does not apply to persons who committed a Class IA felony offense when they were 18 years of age. State v. Wetherell, 289 Neb. 312, 855 N.W.2d 359 (2014).
Where a defendant had been sentenced to life imprisonment without the possibility of parole for a crime he committed while under the age of 18 years and that sentence was later determined to be unconstitutional, this section applied to his resentencing. State v. Taylor, 287 Neb. 386, 842 N.W.2d 771 (2014).