by Douglas Ankney

The Supreme Court of Nebraska announced that the appropriate remedy after vacatur of an enhanced sentence for vehicular homicide that was imposed in the absence of evidence of any qualifying prior convictions is to remand to the district court for another enhancement and sentencing hearing.

After leaving a party where he had consumed a substantial amount of alcohol, José A. Valdez struck another vehicle with his automobile. The driver of the other vehicle died from her injuries, and Valdez was charged with motor vehicle homicide. A blood test revealed that Valdez had .223 grams of alcohol per 100 milliliters of blood. The State alleged that Valdez had prior convictions for driving under the influence (“DUI”) and operating a motor vehicle during a revocation period—either of which would enhance the motor vehicle homicide offense to a Class II felony.

Valdez pleaded guilty to the offense, and the State agreed to recommend a sentence not to exceed 25 years and not to pursue additional charges or restitution.

The district court accepted his plea, and the parties agreed to address the issue of enhancement at a later sentencing hearing. At that hearing, the court considered the offense to be enhanced to a Class II felony and sentenced Valdez to a period of 24 to 25 years’ imprisonment. Although the court made reference to Valdez’s two prior DUI convictions, the court did not take any evidence regarding those convictions.

Valdez appealed, arguing, inter alia, that the district court erred in finding him guilty of motor vehicle homicide enhanced to a Class II felony without proof of prior convictions for enhancement.

The Nebraska Supreme Court observed “[a] person commits motor vehicle homicide when he or she causes the death of another unintentionally while engaged in the operation of a motor vehicle in violation of the State of Nebraska or in violation of any city or village ordinance.” Neb. Rev. Stat. § 28-306 (l). If the proximate cause of the death is the operation of a motor vehicle in violation of Neb. Rev. Stat. § 60-6, 196 (DUI) or § 60-6, 197.06 (operating motor vehicle during revocation period), it constitutes motor vehicle homicide, which is a Class IIA felony. Neb. Rev. Stat. § 28-306 (3)(b).

But, if the defendant has a prior conviction for either DUI or operating a motor vehicle during a revocation period, the Class IIA felony is enhanced to a Class II felony. Neb. Rev. Stat. § 28-306 (3)(c). A Class IIA felony is punishable by 0 to 20 years’ imprisonment, while a Class II felony is punishable by 1 to 50 years’ imprisonment. Neb. Rev. Stat. § 28-105 (l).

A sentence is illegal when it is greater than the permissible statutory penalty for the crime. State v. Kantaras, 885 N.W. 2d 558 (Neb. 2016).

The Court ruled, “It is undisputed that the trial court did not receive evidence necessary to subject Valdez to the enhanced penalties under § 28-306 (3)(c) and that Valdez’s sentence to a period of 24-25 years imprisonment exceeds the statutory limits for a Class IIA felony. Therefore, Valdez’s sentence is illegal and must be vacated.”

But the Court also recognized it had not previously addressed this issue of an appropriate remedy for the State’s failure to adduce evidence of a prior conviction in the context of enhancement of motor vehicle homicide offense.

In State v. Oceguera, 798 N.W.2d 392 (Neb. 2011), the State failed to present sufficient evidence of three prior DUI convictions to support a conviction for a fourth offense, so the court remanded for a new enhancement hearing. This does not violate principles related to double jeopardy because a stiffened penalty for the latest crime is due to the crime being aggravated by repetition. Gryger v. Burke, 334 U.S. 728 (1948). And in Monge v. California, 524 U.S. 721 (1998), the U.S. Supreme Court ruled that insufficient evidence is not a bar to retrial of a defendant’s enhanced status.

In the instant case, the Court concluded that double jeopardy does not bar the State from presenting evidence of Valdez’s prior convictions at a new enhancement and sentencing hearing.

Accordingly, the Court vacated Veldez’s sentence and remanded with direction for another enhancement and sentencing hearing. See: State v. Valdez, 940 N.W.2d 840 (Neb. 2020).

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