State v. Bret

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. BRET
Cite as 318 Neb. 995
State of Nebraska, appellee, v.
Melissa S. Bret, appellant.
___ N.W.3d ___
Filed May 16, 2025. 	No. S-24-738.
1. Judgments: Appeal and Error. An appellate court has an obligation
to reach an independent, correct conclusion irrespective of the deter-
mination of the court below when dispositive issues on appeal present
questions of law.
2. Sentences: Prior Convictions: Proof. In a proceeding to enhance a
punishment because of prior convictions, the State has the burden to
prove the fact of prior convictions by a preponderance of the evidence,
and the trial court determines the fact of prior convictions based upon
the greater weight of the evidence standard.
3. Sentences: Prior Convictions: Theft. To enhance a sentence for theft
under Neb. Rev. Stat. § 28-518 (Cum. Supp. 2024), just as in other
contexts, an enhancement proceeding must occur at any time before the
court imposes sentence, evidence of any qualifying prior convictions
must be introduced, and the court must find that such convictions exist
by the greater weight of the evidence.
4. Sentences. A sentence is illegal when it is not authorized by the judg-
ment of conviction or when it is greater or lesser than the permissible
statutory penalty for the crime.
5. Penalties and Forfeitures: Waiver. Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the intentional relinquish-
ment of a known right.
6. Sentences: Prior Convictions. When the State seeks to enhance a sen-
tence due to any prior convictions of the defendant, a separate hearing
must be held after trial and before sentencing.
Appeal from the District Court for Douglas County: Katie
L. Benson, Judge. Classification and sentence vacated, and
cause remanded.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:08 AM CDT

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. BRET
Cite as 318 Neb. 995
Thomas 	C. 	Riley, 	Douglas 	County 	Public 	Defender,
Alexander D. Sycher, and Hilary A. Drawz, for appellant.
Michael 	T. 	Hilgers, 	Attorney 	General, 	and 	Jacob 	M.
Waggoner for appellee.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Bergevin, J.
INTRODUCTION
Melissa S. Bret appeals from her sentence for theft by shop-
lifting. She and the State agree that the district court erred
in sentencing her for a Class IV felony instead of a Class II
misdemeanor because the State failed to present evidence of
her prior convictions. 1 However, the parties disagree as to the
proper remedy on remand. Bret argues that because the State’s
conduct “waived” enhancement, the court on remand should
sentence her for the misdemeanor. 2 The State argues that it did
not waive enhancement. We conclude that the court erred in
enhancing the offense and imposing an enhanced sentence and
that the classification and sentence must be vacated. We further
conclude that the State did not waive enhancement and may
seek it on remand.
BACKGROUND
Bret was charged with theft by shoplifting 3 goods or mer-
chandise valued at $500 or less and having two prior convic-
tions for the same offense, a Class IV felony. 4 A jury found her
1 Compare Neb. Rev. Stat. § 28-518(4) (Cum. Supp. 2024), with § 28-518(6).
2 Brief for appellant at 11. See State v. Valdez, 305 Neb. 441, 940 N.W.2d
840 (2020) (holding for waiver to apply, defendant must show that at some
point, State intended to prosecute for lower grade offense).
3 See Neb. Rev. Stat. § 28-511.01 (Reissue 2016).
4 See § 28-518(4) and (6).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. BRET
Cite as 318 Neb. 995
guilty of shoplifting property valued at $77.64. 5 After the jury
returned its verdict, the district court ordered a presentence
investigation and set the matter for sentencing. In its written
order on the verdict, the court adjudged Bret guilty of theft by
shoplifting, a Class IV felony. Likewise, in the court’s order
for a presentence investigation, the court set forth that Bret
was found guilty of “Theft by Shoplifting 3 or more $500 or
less, a Class IV felony.”
At the commencement of the sentencing hearing, the district
court confirmed its “understanding that we are here today for
sentencing after a jury convicted [Bret] of one count of theft
by shoplifting, a Class 4 [sic] Felony.” Counsel for Bret and
the State agreed with the court.
The court next discussed the presentence investigation report
(PSR) with both counsel. The PSR indicated that Bret was
charged with and convicted of “Theft by Shoplifting – Three or
More Offenses, $500 or Less,” in violation of §§ 28-511.01(1)
and 28-518(6), a Class IV felony. The PSR noted that the maxi-
mum term of imprisonment was 2 years—the maximum for a
Class IV felony. 6 It did not contain any information relating to
a Class II misdemeanor.
The court then asked Bret’s attorney for argument, and Bret
argued for a sentence of probation. At the conclusion of Bret’s
argument, the court noted that the State’s trial counsel “was not
here initially; but [now] is here, for purposes of the record.”
The court asked whether the State’s newly arrived attorney
was “going to handle sentencing.” The attorney answered in
the affirmative and proceeded to present argument as to the
appropriate sentence for Bret. In doing so, the State mentioned
that Bret had “a prior felony shoplifting conviction” and rec-
ommended “a max sentence of two years.”
5 See § 28-518(9) (“value shall be an essential element of the offense”).
6 See Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2024).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. BRET
Cite as 318 Neb. 995
In sentencing Bret, the court noted that Bret had prior
charges and convictions for theft by shoplifting. After it con-
sidered the appropriate sentencing factors, 7 the court imposed a
sentence of 1 year’s imprisonment. 8 No evidence was adduced
regarding any prior theft conviction, and the court made no
finding that Bret had any qualifying prior theft conviction.
Bret timely appeals.
ASSIGNMENT OF ERROR
Bret assigns that the district court erred by enhancing her
conviction of theft by shoplifting $500 or less to a third offense
because the State provided insufficient evidence of Bret’s prior
shoplifting convictions.
STANDARD OF REVIEW
[1] An appellate court has an obligation to reach an inde-
pendent, correct conclusion irrespective of the determination
of the court below when dispositive issues on appeal present
questions of law. 9
ANALYSIS
We begin by addressing the sentencing enhancements for
prior theft convictions under § 28-518. We then review the
enhancement of Bret’s sentence, before turning to the parties’
disagreement: Whether the State is precluded from seeking
enhancement of her sentence on remand.
7 See, e.g., State v. Ezell, 314 Neb. 825, 993 N.W.2d 449 (2023); State v.
Morton, 310 Neb. 355, 966 N.W.2d 57 (2021); State v. Manjikian, 303
Neb. 100, 927 N.W.2d 48 (2019); State v. Philipps, 242 Neb. 894, 496
N.W.2d 874 (1993); State v. Etchison, 188 Neb. 134, 195 N.W.2d 498
(1972). See, also, Neb. Rev. Stat. §§ 29-2260 (Reissue 2016) and 29-2261
(Cum. Supp. 2024).
8 See § 28-105, § 28-518, and Neb. Rev. Stat. § 29-2204.02 (Reissue 2016).
9 See, State v. Valdez, supra note 2. See, also, In re Estate of McCormick,
317 Neb. 960, 12 N.W.3d 802 (2024).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. BRET
Cite as 318 Neb. 995
Prior Conviction Sentencing
Enhancement Under § 28-518
We have not previously directly addressed the State’s bur-
den to establish prior convictions for the enhancement of a
theft offense under § 28-518. 10 We take the opportunity to do
so here.
In Nebraska, there is a single offense of “theft” that may
be committed by taking part in any one of several activities
described in Neb. Rev. Stat. §§ 28-509 to 28-517 (Reissue
2016 & Cum. Supp. 2024). 11 The unifying concept in all
these activities is that each involves the involuntary transfer
of property. 12 The actor appropriates the property of the vic-
tim either (1) without consent or (2) with consent that was
obtained by fraud or coercion. 13 Rather than the particular
activity, the class of the theft offense is graded by the “value
of the thing involved,” 14 as found by a unanimous jury beyond
a reasonable doubt. 15 Thereafter, it is possible for the class to
be enhanced. Under § 28-518(5) to (7), a theft offense may be
enhanced if the offender has certain qualifying prior convic-
tions. Those subsections provide:
10 Cf. State v. McCarthy, 284 Neb. 572, 822 N.W.2d 386 (2012).
11 State v. Jonusas, 269 Neb. 644, 694 N.W.2d 651 (2005). See § 28-510.
12 See State v. Jonusas, supra note 11.
13 See id.
14 § 28-518(1) to (4). See § 28-518(8).
15 See § 28-518(9). See, also, e.g., State v. Fernandez, 313 Neb. 745,
757, 986 N.W.2d 53, 62 (2023) (holding jury must find property stolen
had “value falling within the ranges” in § 28-518); State v. Gartner,
263 Neb. 153, 169, 638 N.W.2d 849, 863 (2002) (holding § 28-518
“requires that intrinsic value be proved beyond a reasonable doubt as an
element of the offense, proof of a specific value at the time of the theft
is necessary only for gradation of the offense,” as law already required);
State v. Schumacher, 184 Neb. 653, 655, 171 N.W.2d 181, 183 (1969)
(recognizing sufficient evidence must establish property stolen had “at
least some value”).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. BRET
Cite as 318 Neb. 995
(5) For any second or subsequent conviction [when the
value of the thing involved is more than $500 but less
than $1,500], any person so offending shall be guilty of
a Class IV felony.
(6) For any second conviction [when the value of the
thing involved is $500 or less], any person so offending
shall be guilty of a Class I misdemeanor, and for any third
or subsequent conviction [when the value of the thing
involved is $500 or less], the person so offending shall be
guilty of a Class IV felony.
(7) For a prior conviction to be used to enhance the
penalty under subsection (5) or (6) of this section, the
prior conviction must have occurred no more than ten
years prior to the date of commission of the current
offense. 16
We 	read 	these 	sentencing 	enhancements 	concerning 	prior
convictions of theft consistent with other analogous situa-
tions of sentencing enhancement based on an offender’s prior
convictions. 17
Our precedent is well established concerning the enhance-
ment of sentences based on prior convictions. 18 We have long
held:
[W]here punishment is sought under any statute defining
one crime and providing for an enhanced penalty upon
conviction of a second or subsequent offense: (1) The
16 § 28-518(5) to (7).
17 See, also, State v. McCarthy, supra note 10 (analogizing prior convictions
under § 28-518 to prior driving under influence convictions).
18 See, e.g., State v. Valdez, supra note 2 (motor vehicle homicide, see Neb.
Rev. Stat. § 28-306(3) (Reissue 2016)); State v. Oceguera, 281 Neb. 717,
798 N.W.2d 392 (2011) (driving under influence, see Neb. Rev. Stat.
§ 60-6,197.02(2) (Reissue 2016)); Haffke v. State, 149 Neb. 83, 30 N.W.2d
462 (1948) (promulgating rule of practice and procedure applicable to
any statute that imposes duty upon court to inflict greater punishment
upon repetition of offense). See, also, e.g., State v. Huff, 282 Neb. 78, 802
N.W.2d 77 (2011).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. BRET
Cite as 318 Neb. 995
facts with reference thereto must be alleged in the com-
plaint, indictment or information upon which the accused
is prosecuted; (2) the fact that the accused is charged
with having committed a second or subsequent offense
should not be an issue upon the trial and should not in
any manner be disclosed to the jury; (3) if the accused is
convicted, before sentence is imposed a hearing should
be had before the court without a jury as to whether or
not there have been any prior convictions of the accused
under the same statute; (4) the accused should be given
notice of the time of hearing at least three days prior
thereto; and (5) at the hearing, if the court finds from the
evidence submitted that the accused has been convicted
prior thereto under the same statute, the court should
sentence the accused according to the enhanced penalty
applicable to the facts found. 19
[2] In a proceeding to enhance a punishment because of
prior convictions, the State has the burden to prove the fact of
prior convictions by a preponderance of the evidence, and the
trial court determines the fact of prior convictions based upon
the greater weight of the evidence standard. 20
[3] We hold that to enhance a sentence for theft under
§ 28-518, just as in other contexts, an enhancement proceed-
ing must occur at any time before the court imposes sentence,
19 Haffke v. State, supra note 18, 149 Neb. at 95-96, 30 N.W.2d at 469. See
Poppe v. State, 155 Neb. 527, 52 N.W.2d 422 (1952). See, also, State v.
Rubek, 11 Neb. App. 489, 653 N.W.2d 861 (2002).
20 State v. Teppert, 307 Neb. 695, 950 N.W.2d 594 (2020); State v. Hall,
270 Neb. 669, 708 N.W.2d 209 (2005); State v. Hurbenca, 266 Neb. 853,
669 N.W.2d 668 (2003). See, State v. Bixby, 315 Neb. 549, 997 N.W.2d
787 (2023); State v. Taylor, 286 Neb. 966, 840 N.W.2d 526 (2013); State
v. Macek, 278 Neb. 967, 774 N.W.2d 749 (2009). See, also, Erlinger v.
United States, 602 U.S. 821, 144 S. Ct. 1840, 219 L. Ed. 2d 451 (2024);
Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140
L. Ed. 2d 350 (1998); State v. Johnson, 290 Neb. 369, 859 N.W.2d 877
(2015); Haffke v. State, supra note 18.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. BRET
Cite as 318 Neb. 995
evidence of any qualifying prior convictions must be intro-
duced, and the court must find that such convictions exist by
the greater weight of the evidence. 21
Enhancement of Bret’s Sentence
Bret first argues that her enhanced sentence is illegal because
the State failed to prove the requisite prior convictions to
enhance her theft by shoplifting offense from a Class II misde-
meanor to a Class IV felony under § 28-518. The State agrees.
So do we.
A jury found Bret guilty of theft by shoplifting and found
the value involved in the theft to be $77.64. Upon acceptance
of the jury’s verdict, the district court adjudged Bret guilty of
Class IV felony theft by shoplifting. However, the jury found
that the value involved was less than $500. “Theft constitutes
a Class II misdemeanor when the value of the thing involved
is five hundred dollars or less.” 22 Unless and until the State
proved that Bret had qualifying prior convictions to enhance
that offense, she was guilty of only the class of theft for which
the jury found her guilty—Class II misdemeanor theft.
After the jury found Bret guilty of theft by shoplifting, no
evidence was introduced to support a factual finding that Bret
had any qualifying prior convictions, and the court did not
make a factual finding as to whether Bret had any qualify-
ing prior convictions. Therefore, Bret’s offense could not be
enhanced from a Class II misdemeanor to a Class IV felony.
[4] A Class II misdemeanor theft is punishable by a maxi-
mum 6 months’ imprisonment, $1,000 fine, or both. 23 However,
the sentence imposed by the court was 1 year’s imprisonment.
A sentence is illegal when it is not authorized by the judg-
ment of conviction or when it is greater or lesser than the
21 See, State v. Valdez, supra note 2; State v. Oceguera, supra note 18.
22 § 28-518(4).
23 Neb. Rev. Stat. § 28-106 (Reissue 2016).

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STATE v. BRET
Cite as 318 Neb. 995
permissible statutory penalty for the crime. 24 Bret’s sentence
is illegal because it is greater than is permissible. It must be
vacated.
Waiver of Enhanced Offense
Having determined that Bret’s sentence must be vacated,
we must remand the cause for resentencing. 25 Bret argues that
the State cannot pursue the enhancement of her theft offense
and attempt to prove that she has qualifying prior convictions
on remand. She contends that the State waived the issue of
enhancement because the State acknowledged that the “hear-
ing that day was being conducted to sentence Bret on a Class
IV felony,” and the “State acknowledged as much but still did
not” introduce any evidence of any prior convictions. 26 Bret
asserts that “it can be inferred from the conduct of the State’s
attorney at the sentencing hearing that the State made a vol-
untary waiver of its right to enhance” the offense. 27 The State
disagrees and contends it made no such waiver.
We have previously addressed the issue of waiver in the
context of sentencing enhancement. 28 As we set forth in State
v. Valdez 29:
A waiver is the voluntary and intentional relinquish-
ment of a known right, privilege, or claim, and may be
24 E.g., State v. Valdez, supra note 2. See, State v. McAleese, 311 Neb.
243, 971 N.W.2d 328 (2022) (criminal judgment void when court lacks
jurisdiction or legal basis to impose judgment); State v. Lotter, 255 Neb.
456, 586 N.W.2d 591 (1998) (sentence void when unauthorized by law),
modified on denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999).
25 See State v. Oceguera, supra note 18 (holding proper remedy is remand
for new enhancement hearing when State failed to produce sufficient
evidence of requisite prior convictions and defendant appeals). Accord
State v. Valdez, supra note 2.
26 Brief for appellant at 10.
27 Id.
28 See State v. Valdez, supra note 2.
29 Id. at 448-49, 940 N.W.2d at 845-46.

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STATE v. BRET
Cite as 318 Neb. 995
demonstrated by or inferred from a person’s conduct.
A voluntary waiver, knowingly and intelligently made,
must affirmatively appear from the record. To establish a
waiver of a legal right, there must be a clear, unequivo-
cal, and decisive act of a party showing such a purpose,
or acts amounting to an estoppel on his or her part.
Further, the waiving party must have full knowledge of
all material facts.
Our opinion in Valdez is instructive in determining whether
the State is precluded from seeking enhancement on remand.
In Valdez, the trial court opened the sentencing hearing by
stating that the matter before it was sentencing for a Class
II felony. However, before the underlying offense could be
enhanced to a Class II felony, the State was required to
prove the defendant had prior convictions. The court pro-
ceeded directly to sentencing, and the State failed to intro-
duce evidence of any prior convictions of the defendant. The
record indicated that enhancement of the defendant’s sen-
tence for prior convictions was never addressed. On appeal,
we rejected the defendant’s argument that the State waived
the issue of enhancement. In so doing, we noted that the
State “never wavered from its position to prosecute” for the
enhanced offense and that the defendant had pleaded guilty to
the enhanced offense. 30
The record in this case likewise shows that enhancement for
Bret’s prior convictions was never addressed. Nevertheless,
Bret distinguishes Valdez from her case because she was
convicted after a jury trial and did not plead guilty to the
enhanced offense.
Nothing in the record shows the State intended to forgo
enhancing 	Bret’s 	sentence—quite 	the 	contrary. 	The 	State
charged Bret with the enhanced offense, indicated that the
sentencing hearing was for the enhanced offense, and argued
for a “max sentence” of 2 years’ imprisonment. As discussed
30 Id. at 449, 940 N.W.2d at 846.

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STATE v. BRET
Cite as 318 Neb. 995
above, 2 years’ imprisonment is the maximum sentence for the
enhanced offense, not the maximum sentence for the unen-
hanced offense. It is also unclear whether the State was aware
that enhancement had not been addressed due to the late arrival
of the State’s trial counsel. Moreover, Bret had already been
erroneously adjudged guilty of a Class IV felony. No waiver
affirmatively appears from the record.
[5] The essence of Bret’s argument is that the State failed to
timely assert its right to seek enhancement of her sentence by
not attempting to prove she had qualifying prior convictions
before the court imposed its sentence. This argument con-
flates waiver and forfeiture. There are meaningful distinctions
between the concepts. 31 “‘Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the intentional
relinquishment . . . of a known right.’” 32
We have previously acknowledged that this court, like many
others, has not always used these terms precisely. 33 Recently,
we have more carefully distinguished between an act of waiver
and a consequence of forfeiture. 34
We have not previously considered whether the State can
forfeit its right to seek a sentencing enhancement based on
prior convictions. But we do not need to do so here.
[6] The sequence of events in Bret’s case does not show
that the State failed to timely assert its right. As we discussed
above, when the State seeks to enhance a sentence due to any
prior convictions of the defendant, a hearing must be held after
trial and before sentencing. 35 An enhancement proceeding
31 State v. Horne, 315 Neb. 766, 1 N.W.3d 457 (2024).
32 Id. at 777, 1 N.W.3d at 465 (quoting United States v. Olano, 507 U.S. 725,
113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)).
33 State v. Horne, supra note 31.
34 State v. Kalita, 317 Neb. 906, 12 N.W.3d 499 (2024). See, e.g., State v.
Rezac, ante p. 352, 15 N.W.3d 705 (2025); Main St Properties v. City of
Bellevue, ante p. 116, 13 N.W.3d 911 (2024); Lancaster County v. Slezak,
317 Neb. 157, 9 N.W.3d 414 (2024).
35 See, Haffke v. State, supra note 18; Poppe v. State, supra note 19.

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is distinct from sentencing. 36 In this case, no enhancement
proceeding occurred. The court received the jury’s verdict and
adjudged Bret guilty of Class IV felony theft instead of Class
II misdemeanor theft. The case next came on for sentencing.
The State did not forfeit its right to seek a sentencing enhance-
ment when it was not afforded the opportunity to do so.
We conclude that on remand, the State is not precluded from
seeking to enhance Bret’s theft offense due to any qualifying
prior convictions.
CONCLUSION
In the absence of evidence of any qualifying prior convic-
tions, the district court erred in enhancing the offense and
imposing a sentence greater than that which was statutorily
authorized by the jury’s verdict. Further, on the facts of this
case, the State did not waive or forfeit the issue of enhance-
ment. Accordingly, we vacate the classification of the offense
announced upon conviction and Bret’s sentence and remand
the cause for possible enhancement and for resentencing.
Classification and sentence vacated,
and cause remanded.
36 See, e.g., State v. Valdez, supra note 2; State v. Spang, 302 Neb. 285, 923
N.W.2d 59 (2019); State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265
(2015); State v. Bruckner, 287 Neb. 280, 842 N.W.2d 597 (2014); State v.
Taylor, supra note 20; State v. Oceguera, supra note 18; State v. Nelson,
262 Neb. 896, 636 N.W.2d 620 (2001), overruled on other grounds, State
v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020); State v. Linn, 248 Neb. 809,
539 N.W.2d 435 (1995); State v. Ohler, 219 Neb. 840, 366 N.W.2d 771
(1985); State v. Schaf, 218 Neb. 437, 355 N.W.2d 793 (1984), overruled
on other grounds, State v. Vann, supra note 36. See, also, e.g., Neb. Rev.
Stat. §§ 29-2206, 29-2221, 29-2281, and 29-2521 (Cum. Supp. 2024).