State v. Simnick

to conclude that the Workers’ Compensation Court can. And
we need not evaluate the merits of Federated’s subrogation
claim, in light of the settlement, to conclude that the Workers’
Compensation Court has jurisdiction to consider them.
[9] We hold that the final resolution of an employee’s right
to workers’ compensation benefits does not preclude an issue
from being “ancillary” to the resolution of the employee’s right
to benefits within the meaning of § 48-161. And we conclude
that under the circumstances presented here, Federated’s sub-
rogation claim was ancillary to the Workers’ Compensation
Court’s approval of the lump-sum settlement between Olsen
and his employer, Midwest PMS. The Workers’ Compensation
Court erred in concluding otherwise. And having determined
that Federated’s first assignment of error has merit, we need
not consider its argument that there was still a dispute between
Olsen and Midwest PMS.
COnCluSiOn
The Workers’ Compensation Court had jurisdiction to con-
sider the merits of Federated’s claim against nationwide,
despite the fact that Olsen had settled his claim with his
employer. The judgment of the Workers’ Compensation Court
is reversed, and the cause is remanded for further proceedings
to consider Federated’s claim on its merits.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
WRight, J., not participating in the decision.
state of nebRaska , appellee , v.
kevin a. simnick , appellant.
779 n.W.2d 335
Filed March 5, 2010. 	no. S-08-959.
1. Constitutional Law: Statutes: Appeal and Error. The constitutionality of a
statute is a question of law, regarding which the nebraska Supreme Court is
obligated to reach a conclusion independent of the determination reached by the
trial court.
2. 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
STATe v. SiMniCk 	499
Cite as 279 neb. 499
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

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.
3. 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.
4. Appeal and Error. in the absence of plain error, when an issue is raised for the
first time in an appellate court, the issue will be disregarded inasmuch as the trial
court cannot commit error regarding an issue never presented and submitted for
disposition in the trial court.
5. ____. Plain error may be found on appeal when an error unasserted or uncom-
plained of at trial, but plainly evident from the record, prejudicially affects a
litigant’s substantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process.
6. ____. Consideration of plain error occurs at the discretion of an appellate court.
7. Courts: Appeal and Error. upon reversing a decision of the nebraska Court
of Appeals, the nebraska Supreme Court may consider, as it deems appropriate,
some or all of the assignments of error the Court of Appeals did not reach.
8. Sentences: Appeal and Error. When part of a sentence is illegal, an appellate
court may, if the sentence is divisible, modify it by striking out the illegal part.
Petition for further review from the Court of Appeals, inbody,
Chief Judge, and sieveRs and cassel, Judges, on appeal thereto
from the District Court for lancaster County, JeffRe cheuvRont,
Judge. Judgment of Court of Appeals affirmed in part and in
part reversed, and cause remanded with directions.
Dennis R. keefe, lancaster County Public Defender, Webb
e. Bancroft, and Yohance l. Christie, Senior Certified law
Student, for appellant.
Jon Bruning, Attorney General, and kimberly A. klein for
appellee.
heavican, 	c.J., 	WRight, 	connolly, 	geRRaRd, 	stephan,
mccoRmack, and milleR-leRman, JJ.
stephan, J.
After entering a plea of no contest, kevin A. Simnick was
convicted on one count of first degree sexual assault and
sentenced to a term of incarceration. in its sentencing order,
the district court determined that Simnick had committed an
“aggravated offense” as defined in neb. Rev. Stat. § 29-4005
500 	279 neBRASkA RePORTS

(Reissue 2008). Simnick was, therefore, subject to the lifetime
registration requirements of the Sex Offender Registration Act
(SORA)1 and to lifetime community supervision2 upon his
release from incarceration or civil commitment. The nebraska
Court of Appeals affirmed the conviction and sentence.3 We
granted Simnick’s petition for further review to consider issues
arising from State v. Payan,4 decided during the pendency of
Simnick’s appeal, in which we held that lifetime community
supervision constituted a form of punishment.
BACkGROunD
in October 2007, Simnick was charged by information in the
district court for lancaster County with two counts of sexual
assault of a child in the first degree. He entered not guilty pleas
to both charges.
eventually, a plea agreement was reached. One of the counts
in the information was amended to allege the offense of first
degree sexual assault.5 Simnick, appearing with counsel, entered
a plea of no contest to this amended count in exchange for the
lancaster County Attorney’s agreement to dismiss the remain-
ing count and the Scotts Bluff County Attorney’s agreement
not to prosecute Simnick for an offense involving the same
child in that jurisdiction. The amended information alleged that
the offense occurred “on, about, or between January 1, 2003
and July 31, 2006,” in lancaster County, that Simnick was a
person 19 years of age or older, and that he subjected a person
less than 16 years of age to sexual penetration. The State pre-
sented a factual basis for the plea which included a transcribed
statement which Simnick gave to lincoln police on August 27,
2007. The court advised Simnick of the nature of the charge
against him and of the possibility of the following penalties:
incarceration for a period of 1 to 50 years, restitution paid to
1 neb. Rev. Stat. §§ 29-4001 to 29-4014 (Reissue 2008).
2 See neb. Rev. Stat. § 83-174.03 (Reissue 2008).
3 State v. Simnick, 17 neb. App. 766, 771 n.W.2d 196 (2009).
4 State v. Payan, 277 neb. 663, 765 n.W.2d 192 (2009).
5 See neb. Rev. Stat. § 28-319 (Reissue 2008).
STATe v. SiMniCk 	501
Cite as 279 neb. 499

the victim, and lifetime registration as a sex offender. The court
did not inform Simnick of the possibility of lifetime commu-
nity supervision under § 83-174.03(1).
On August 11, 2008, Simnick appeared with counsel for
sentencing. Simnick acknowledged reading and signing the
“notice and Acknowledgment of lifetime Parole Supervision”
form, which advised him that he would be subject to lifetime
community supervision by the Office of Parole Administration.
Simnick neither questioned nor objected to the notice. The dis-
trict court found that Simnick had committed an “aggravated
offense” as defined in § 29-4005 and imposed a sentence of
incarceration for 20 to 35 years, with credit for time served.
As a part of the sentence, the court found that Simnick was
required to register under SORA for the remainder of his life
and that Simnick would be subject to lifetime community
supervision by the Office of Parole Administration upon his
release from either incarceration or civil commitment.
Simnick filed a timely appeal of his conviction. He asserted,
inter alia, (1) that his plea was involuntary because the district
court did not advise him of the possibility of lifetime com-
munity supervision and (2) that the inclusion of lifetime com-
munity supervision in his sentence violated the ex Post Facto
Clauses of the state and federal Constitutions. in its appellate
brief, the State briefly argued that Simnick waived these argu-
ments by failing to object at his sentencing hearing. The Court
of Appeals did not address this argument in its opinion affirm-
ing Simnick’s conviction and sentence.
After we granted Simnick’s petition for further review, the
State filed a motion to dismiss as improvidently granted,
arguing 	that 	the 	issues 	were 	not 	preserved 	for 	appellate
review. We deferred ruling on the State’s motion pending final
submission.
ASSiGnMenTS OF eRROR
in his petition for further review, Simnick assigns, restated,
that (1) the imposition of lifetime community supervision vio-
lated the ex Post Facto Clauses of the nebraska and federal
Constitutions and (2) his no contest plea was not freely, know-
ingly, and voluntarily made.
502 	279 neBRASkA RePORTS

STAnDARD OF ReVieW
[1] The constitutionality of a statute is a question of law,
regarding which the nebraska Supreme Court is obligated to
reach a conclusion independent of the determination reached
by the trial court.6
AnAlYSiS
[2,3] 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.7 This court ordinarily construes nebraska’s ex post
facto clause to provide no greater protections than those guar-
anteed by the federal Constitution.8
Section 83-174.03, which subjects certain sex offenders
to lifetime community supervision, was a part of l.B. 1199,9
signed by the Governor on April 13, 2006. it went into effect
3 calendar months later, on July 14.10 in Payan,11 we held that
lifetime community supervision pursuant to § 83-174.03 is a
form of punishment. Simnick contends that his offense was
committed before the effective date of § 83-174.03 and that
therefore, the statute as applied to him constitutes ex post facto
legislation because it increased the punishment for his offense
after it was committed.
plain eRRoR
[4,5] The State correctly notes that Simnick asserted his ex
post facto claim for the first time on appeal. in the absence
of plain error, when an issue is raised for the first time in an
6 State v. Gales, 269 neb. 443, 694 n.W.2d 124 (2005); State v. Diaz, 266
neb. 966, 670 n.W.2d 794 (2003).
7 State v. Worm, 268 neb. 74, 680 n.W.2d 151 (2004).
8 Id.
9 2006 neb. laws, l.B. 1199, § 89.
10 See neb. Const. art. iii, § 27.
11 State v. Payan, supra note 4.
STATe v. SiMniCk 	503
Cite as 279 neb. 499

appellate court, the issue will be disregarded inasmuch as the
trial court cannot commit error regarding an issue never pre-
sented and submitted for disposition in the trial court.12 Plain
error may be found on appeal when an error unasserted or
uncomplained of at trial, but plainly evident from the record,
prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and
fairness of the judicial process.13
[6] Consideration of plain error occurs at the discretion of
an appellate court.14 We have exercised our discretion to correct
plain error in a variety of criminal sentencing contexts, includ-
ing a case15 in which capital sentencing was not conducted in
accordance with Ring v. Arizona,16 cases in which prior convic-
tions were utilized to enhance a sentence absent proof in the
record that the defendant was represented by or knowingly
waived counsel at the time of the prior convictions,17 and a case
in which a defendant convicted of driving under the influence
was erroneously ordered to participate in alcohol assessment as
a part of the sentencing order.18
We have also considered relevant judicial decisions handed
down subsequent to trial as a factor in deciding whether to
review for plain error.19 Our holding in Payan20 that lifetime
community supervision is a form of punishment is highly
12 State v. Archie, 273 neb. 612, 733 n.W.2d 513 (2007); State v. Mata, 266
neb. 668, 668 n.W.2d 448 (2003), abrogated on other grounds, State v.
Rogers, 277 neb. 37, 760 n.W.2d 35 (2009).
13 State v. Kuhl, 276 neb. 497, 755 n.W.2d 389 (2008); State v. Mata, supra
note 12.
14 State v. Sepulveda, 278 neb. 972, 775 n.W.2d 40 (2009); State v. Archie,
supra note 12.
15 State v. Mata, supra note 12.
16 Ring v. Arizona, 536 u.S. 584, 122 S. Ct. 2428, 153 l. ed. 2d 556
(2002).
17 State v. Thomas, 262 neb. 985, 637 n.W.2d 632 (2002); State v. Nelson,
262 neb. 896, 636 n.W.2d 620 (2001).
18 State v. Hansen, 259 neb. 764, 612 n.W.2d 477 (2000).
19 See State v. Mata, supra note 12.
20 State v. Payan, supra note 4.
504 	279 neBRASkA RePORTS

relevant to Simnick’s ex post facto claim. Payan was decided
while Simnick’s appeal was pending in the Court of Appeals.
Based upon the constitutional prohibition of ex post facto
laws, Simnick has a substantial right not to be subjected to an
enhanced penalty that did not exist when his offense was com-
mitted. Accordingly, we exercise our discretion to consider his
ex post facto argument under the doctrine of plain error.
R ipeness
A convicted sex offender becomes subject to lifetime com-
munity supervision following either completion of a term of
incarceration or release from civil commitment under three
separate circumstances:
(a) [The defendant] is convicted of or completes a term of
incarceration for an offense requiring registration under
section 29-4003 and has a previous conviction for a regis-
terable offense, (b) [the defendant] is convicted of sexual
assault of a child in the first degree pursuant to section
28-319.01, or (c) [the defendant] is convicted of or com-
pletes a term of incarceration for an aggravated offense as
defined in section 29-4005.21
in State v. Schreiner,22 we held that an ex post facto challenge
by a defendant who had become subject to lifetime community
supervision as a result of a prior conviction for a registrable
offense was unripe for judicial review. in this case, the Court
of Appeals relied upon Schreiner in concluding that “Simnick’s
constitutional challenge is unripe.”23
But this case differs from Schreiner in that Simnick became
subject to lifetime community supervision not on the basis of
a prior conviction, but because the district court found that the
offense on which he stands convicted in this proceeding consti-
tuted an “aggravated offense” as defined in § 29-4005. under
SORA, a convicted sex offender whose offense is determined
to be an “aggravated offense” is also subject to the lifetime
21 § 83-174.03(1).
22 State v. Schreiner, 276 neb. 393, 754 n.W.2d 742 (2008).
23 State v. Simnick, supra note 3, 17 neb. App. at 787, 771 n.W.2d at 213.
STATe v. SiMniCk 	505
Cite as 279 neb. 499

registration requirement.24 in Worm,25 we determined that a
lifetime registration requirement under SORA resulting from
a finding of an aggravated offense was “part of the sentencing
court’s judgment” for purposes of appeal and was, therefore,
ripe for review on direct appeal. Worm therefore reached and
rejected the ex post facto claim on its merits, concluding that
because the registration requirement was not punitive, there
was no violation of the ex Post Facto Clauses.
Here, as in Worm, the challenged portion of the sentence
arose from an aggravated offense finding which was made as
a part of the sentencing order. Therefore, Worm, not Schreiner,
controls the question of whether the constitutional issue is ripe
for review. We conclude, under the reasoning of Worm, that the
issue is ripe for review and that the Court of Appeals erred in
reaching its contrary conclusion.
meRits
[7] upon reversing a decision of the Court of Appeals, this
court may consider, as it deems appropriate, some or all of
the assignments of error the Court of Appeals did not reach.26
in the interest of judicial economy, we address the merits of
Simnick’s ex post facto claim which the Court of Appeals did
not reach.
Because we held in Payan27 that lifetime community super-
vision is a form of punishment, the dispositive question is
whether Simnick’s offense was committed before or after July
14, 2006, the effective date of § 83-174.03. The count in the
amended information to which Simnick entered his plea alleged
that the offense was committed “on, about, or between January
1, 2003 and July 31, 2006.” The State argues that we should
treat Simnick’s crime as a “continuing offense”28 spanning this
entire time period and conclude that § 83-174.03 is not ex post
facto as applied to Simnick.
24 See § 29-4005(2).
25 State v. Worm, supra note 7, 268 neb. at 80, 680 n.W.2d at 158.
26 Incontro v. Jacobs, 277 neb. 275, 761 n.W.2d 551 (2009).
27 State v. Payan, supra note 4.
28 Brief for appellee at 20.
506 	279 neBRASkA RePORTS

in support of this argument, the State relies upon State v.
Cowles,29 an iowa case in which a defendant entered a guilty
plea to, inter alia, one felony count of sexual abuse involving a
minor child. The offense was alleged to have occurred between
the dates of April 9, 1996, and February 2, 1997. A statute
establishing a mandatory minimum sentence became effective
on July 1, 1996. At the plea hearing, the defendant was asked
whether he had engaged in a sex act with the minor “‘prior to
February 3, 1997,’” and he gave an affirmative response.30 The
iowa Supreme Court held that application of a statute specify-
ing a mandatory minimum sentence would not constitute ex
post facto legislation, because the defendant had “expressly
admitted” at his plea and sentencing hearing that he had com-
mitted the offense between April 9, 1996, and February 2,
1997.31 Although the court acknowledged that the defendant
did not expressly admit that he committed the offense after
the enactment of the mandatory minimum sentence statute, the
court nevertheless found “an implicit admission of such con-
duct in the full context of the hearing.”32
Federal courts have taken differing approaches to the analy-
sis of a plain error ex post facto claim where a statute which
enhances a criminal penalty is enacted during the time period
the crime is alleged to have occurred and a jury is not spe-
cifically instructed that it must find criminal conduct occurring
after the date of enactment. The ninth Circuit has concluded
that a guilty verdict constitutes a finding that the criminal con-
duct occurred until the most recent date alleged in the indict-
ment, thereby establishing postenactment criminal conduct.33
The Fifth Circuit has held that where most of the evidence
focused on events occurring after the statutory amendment
enhancing the penalty for the offense, there is no plain error in
failing to give the jury instruction which would prevent ex post
29 State v. Cowles, 757 n.W.2d 614 (iowa 2008).
30 Id. at 615.
31 Id. at 617.
32 Id.
33 U.S. v. Calabrese, 825 F.2d 1342 (9th Cir. 1987).
STATe v. SiMniCk 	507
Cite as 279 neb. 499

facto application.34 The Second Circuit has found plain error
based upon a possibility that the jury could have convicted the
defendant exclusively on preenactment conduct.35
none of these cases provide guidance here, where there is
neither an admission resulting from a guilty plea nor a finding
of guilt by a jury. instead, we have only Simnick’s no contest
plea and the factual basis for the plea offered by the State,
which includes a statement Simnick gave to police on August
27, 2007. in the statement, Simnick admitted to a sexual
assault involving penetration occurring 3 to 4 years previously.
However, there is no admission or other evidence of conduct
occurring during the 18-day period between July 14, 2006, the
effective date of § 83-174.03, and July 31, the last day of the
time period in which the crime was alleged to have been com-
mitted. On this record, we must conclude that the crime was
committed before the enactment of the statute which imposed
the additional punishment of lifetime community supervision.
Accordingly, the inclusion of that punishment in Simnick’s
sentence violates the ex Post Facto Clauses of the nebraska
and federal Constitutions.
R emedy
[8] When part of a sentence is illegal, an appellate court
may, if the sentence is divisible, modify it by striking out the
illegal part.36 That portion of Simnick’s sentencing order which
states that he is subject to lifetime community supervision is
divisible from the remainder of the sentence and should be
stricken, leaving the remainder of the sentence in force.
otheR assignment
Simnick also contends that the Court of Appeals erred in
determining that his no contest plea was entered voluntarily.
He argues that his plea was involuntary because he was not
34 United States v. Todd, 735 F.2d 146 (5th Cir. 1984).
35 U.S. v. Marcus, 538 F.3d 97 (2d Cir. 2008), cert. granted 558 u.S. 945,
130 S. Ct. 393, 175 l. ed. 2d 266 (2009).
36 State v. Oliver, 230 neb. 864, 434 n.W.2d 293 (1989), overruled on other
grounds, State v. Louthan, 257 neb. 174, 595 n.W.2d 917 (1999); Olson v.
State, 160 neb. 604, 71 n.W.2d 124 (1955).
508 	279 neBRASkA RePORTS

specifically advised that upon conviction, he could be subject to
the lifetime community supervision provisions of § 83-174.03.
inasmuch as we have determined that Simnick is not subject to
lifetime community supervision because § 83-174.03 was not
in effect at the time of his offense, the issue with respect to his
plea is moot and we do not address it.
COnCluSiOn
For the reasons discussed, we overrule the State’s motion to
dismiss the petition for further review. We affirm that portion
of the judgment of the Court of Appeals affirming Simnick’s
conviction; but we reverse that portion of the judgment which
affirms the sentence of lifetime community supervision by the
Office of Parole Administration upon Simnick’s release from
incarceration or civil commitment, and we remand the cause to
the Court of Appeals with directions to vacate that portion of
the sentence and remand to the district court with directions to
resentence Simnick in accordance with this opinion.
affiRmed in paRt, and in paRt ReveRsed
and Remanded With diRections.
ASHBY v. STATe 	509
Cite as 279 neb. 509
mattheW l. ashby, individually, and m.a., a minoR,
by and thRough mattheW l. ashby, his fatheR
and next fRiend, appellants , v. state of
nebRaska et al ., appellees.
779 n.W.2d 343
Filed March 5, 2010. 	no. S-08-1274.
1. Judgments: Appeal and Error. An appellate court determines questions of law
independently of the determination reached by the lower court.
2. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
3. Summary Judgment: Appeal and Error. in reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, and the court gives that party the benefit of all
reasonable inferences deducible from the evidence.
4. Tort Claims Act: Proof. To recover in a negligence action brought under the
State Tort Claims Act, neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2003), a