Mandatory Pre-Sentencing Enhancement Hearing and Proof of Prior Convictions under Neb. Rev. Stat. § 28-518

Introduction

In State v. Bret, 318 Neb. 995 (2025), the Nebraska Supreme Court clarified the procedure and burden of proof required when the State seeks to enhance a theft conviction under Neb. Rev. Stat. § 28-518 based on prior convictions. The appellant, Melissa S. Bret, had been convicted by jury of shoplifting merchandise valued at $77.64. At sentencing, the district court treated her offense as a Class IV felony (third-offense shoplifting), but the State never introduced evidence of any prior convictions. On appeal, both parties acknowledged this omission, but they disagreed on whether the State had “waived” its right to enhancement and whether, on remand, the State could again seek an enhanced penalty.

Summary of the Judgment

The Supreme Court reversed and remanded. It held that:

The State must hold a separate enhancement hearing after trial and before sentencing whenever it intends to rely on prior convictions to elevate a theft under § 28-518.
The State bears the burden of proving the fact of qualifying prior convictions by a preponderance of the evidence, and the court must find facts by the greater weight of the evidence standard.
Because no enhancement hearing occurred and no evidence was presented, Bret’s offense remained a Class II misdemeanor, and the 1-year sentence imposed was illegal and must be vacated.
The record contained no clear, intentional relinquishment of the State’s enhancement rights (no waiver), nor did the State forfeit them; on remand, the State may still seek enhancement with proper procedure.

Analysis

Precedents Cited

Haffke v. State, 149 Neb. 83, 30 N.W.2d 462 (1948) – Established foundational procedure for enhancement hearings: separate hearing, notice, and court finding of prior convictions.
Poppe v. State, 155 Neb. 527, 52 N.W.2d 422 (1952) – Reinforced that enhancement allegations must be in the charging document and proved before sentencing.
State v. Oceguera, 281 Neb. 717, 798 N.W.2d 392 (2011) – Held that absence of evidence on prior convictions requires vacatur of enhanced sentence and remand for new hearing.
State v. Valdez, 305 Neb. 441, 940 N.W.2d 840 (2020) – Distinguished waiver from forfeiture, requiring clear record for a waiver of enhancement rights.
Other enhancement precedents: 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).

Legal Reasoning

The Court began by interpreting § 28-518, which grades theft by value and provides for enhanced penalties upon “second or subsequent conviction[s]” within ten years. Although the jury unanimously found the value at $77.64, the State never proved Bret’s prior convictions. Drawing on its long-standing precedents, the Court reiterated that:

Enhancement is distinct from the offense itself and must be addressed in a separate hearing after the verdict but before the imposition of sentence.
The State’s burden is to establish the fact of prior convictions by a preponderance of the evidence.
The trial court, not the jury, decides the existence and timing of prior convictions under the greater-weight-of-the-evidence standard.

Because no such hearing occurred and the court never found prior convictions, the court illegally imposed a Class IV felony sentence (up to 2 years) rather than the Class II misdemeanor penalty (maximum 6 months). The Court also rejected the notion that the State had waived enhancement: there was no intentional, unequivocal relinquishment of its right, and a mere failure to introduce evidence—especially when the State appeared ready to seek enhancement—does not amount to waiver.

Impact

This decision provides critical guidance for criminal practitioners and trial courts in Nebraska:

Prosecutors must calendarly schedule and litigate enhancement hearings before sentencing whenever they intend to rely on prior convictions under § 28-518.
Defense counsel should insist on separate hearings and demand evidence of prior convictions to contest enhancement.
Judges must vacate any sentence enhanced without compliance, remanding for proper proof and findings.
The clarity on waiver versus forfeiture prevents trial courts from interpreting mere procedural lapses as permanent forfeiture of enhancement rights.
Lower courts will apply this rule across all theft enhancement contexts, ensuring uniformity and protection of due process.

Complex Concepts Simplified

Greater Weight of the Evidence Standard: A civil-type proof standard requiring the fact-finder to believe the greater amount or more convincing evidence.
Separate Enhancement Hearing: A discrete court proceeding, after conviction but before sentencing, devoted solely to proving and adjudicating prior convictions.
Waiver vs. Forfeiture:
- Waiver is the intentional giving up of a known right.
- Forfeiture is the failure to assert a right in a timely manner.
Classification of Theft: Under § 28-518, theft is graded by the value of the stolen property; enhancements can bump a misdemeanor to a felony upon proof of prior offenses.

Conclusion

State v. Bret cements a mandatory procedural safeguard in Nebraska theft prosecutions: before any sentence can be enhanced under § 28-518, the State must conduct a separate hearing, introduce evidence of qualifying prior convictions, and convince the court by a greater-weight standard. This ruling protects defendants from unintended felony exposure, ensures statutory compliance, and preserves the integrity of the sentencing process. On remand, the district court must vacate the illegal sentence, permit a proper enhancement hearing if the State chooses, and then resentences Bret in accordance with the jury verdict and any duly established prior convictions.