Preserving Errors at Sentencing: State v. Dawn Clarifies Forfeiture of § 29-2204.02 Reasoning and Advisement Challenges

Introduction

In State v. Dawn, 320 Neb. 342 (2025), the Nebraska Supreme Court affirmed a determinate two-year imprisonment sentence imposed on a defendant convicted of theft by shoplifting ($0–$500), third or subsequent offense—enhanced to a Class IV felony. The decision addresses several recurring sentencing issues in Nebraska criminal practice:

When a trial court abuses its discretion by denying a continuance sought to permit substance abuse treatment;
How courts satisfy the statutory duty to “state … reasoning on the record” when imposing imprisonment for a Class IV felony despite the presumption of probation under Neb. Rev. Stat. § 29-2204.02;
Whether a defendant forfeits appellate challenges to (a) the court’s § 29-2204.02(3) explanation, (b) the advisement of the right to appeal, and (c) the “truth-in-sentencing” advisement when no contemporaneous objection is made.

The opinion consolidates and extends Nebraska’s sentencing jurisprudence in three notable ways: it reaffirms the stringent abuse-of-discretion and prejudice standards governing continuances; it confirms that a sentencing court may satisfy § 29-2204.02(3) through a combination of the oral colloquy and the written order; and—most significantly—it applies a broad forfeiture rule to unpreserved challenges to the adequacy of the court’s sentencing explanation and statutory advisements. Concurring opinions underscore a fault line: some justices would demand more explicit on-the-record § 29-2204.02 reasoning when the issue is properly preserved.

Summary of the Opinion

Schuyler D. Dawn pleaded guilty to one count of theft by shoplifting ($0–$500), third or subsequent offense. After validating prior convictions, the district court enhanced the offense to a Class IV felony and proceeded to sentencing. Days before sentencing, Dawn obtained a substance abuse evaluation reflecting recent use of alcohol and illegal substances, which conflicted with his presentence investigation (PSI) statements that he had not used substances in eight years. He sought a continuance to enter inpatient treatment. The court denied the continuance and imposed a determinate sentence of two years’ imprisonment, finding “substantial and compelling reasons” why he could not be safely and effectively supervised on probation.

On appeal, Dawn argued that the court (1) abused its discretion by denying a continuance; (2) failed to comply with § 29-2204.02 when imposing imprisonment; (3) failed to advise him of his right to appeal and to provide the truth-in-sentencing advisement required by § 29-2204.02(7); and (4) imposed an indeterminate sentence (a claim he withdrew at oral argument).

The Nebraska Supreme Court affirmed. It held:

No abuse of discretion in denying a continuance; the request was speculative and tied to events within the defendant’s control, and the record showed extensive prior continuances.
No abuse of discretion in imposing imprisonment; the combination of the sentencing hearing and written order sufficiently stated the court’s reasoning under § 29-2204.02(3), including the court’s reliance on the PSI, Dawn’s risk to reoffend, and credibility concerns tied to late-breaking claims of substance use and treatment needs.
Even if the § 29-2204.02(3) explanation had been inadequate, Dawn forfeited the issue by failing to object when invited to raise anything further at sentencing; the same forfeiture principle applied to the lack of advisements, with the failure to advise of the right to appeal also harmless given that Dawn perfected a timely appeal.

Concurring opinions agreed with affirmance but diverged on whether the district court’s explanation truly met § 29-2204.02(3). Justice Papik would not have found compliance on the merits (but found forfeiture and no plain error). Justice Cassel signaled openness to revisiting the contours of State v. Baxter’s “reasoning” requirement if squarely presented and preserved.

Analysis

Precedents Cited and Their Influence

State v. Ramos, 319 Neb. 511 (2025): Reaffirmed the abuse-of-discretion standard for continuances and the requirement that prejudice be shown to overturn a denial. Ramos anchors the court’s analysis that speculative benefits from a continuance (e.g., hoped-for treatment success leading to probation) do not demonstrate prejudice.
State v. Rezac, 318 Neb. 352 (2025): Establishes that denial of a continuance based on events within the defendant’s control is not an abuse of discretion. The court applied Rezac directly—Dawn’s late decision to seek treatment was within his control and followed multiple continuances.
State v. Baxter, 295 Neb. 496 (2017): Foundational for § 29-2204.02’s “substantial and compelling reasons” standard and the need to “state … reasoning.” Baxter informs the requirement that courts do more than list factors—they must explain how they reached the conclusion that community supervision would not be safe or effective.
State v. Dyer, 298 Neb. 82 (2017): Clarifies that listing traditional sentencing criteria is not, by itself, the “reasoning” required by § 29-2204.02(3). The majority uses Dyer to support that reasoning can be discerned from the combined hearing colloquy and order; Justice Papik invokes Dyer to fault the district court’s explanation if reviewed de novo.
State v. Sutton, 319 Neb. 581 (2025) and State v. Morton, 310 Neb. 355 (2021): Cite the customary sentencing factors and the prohibition against reliance on irrelevant considerations. They frame the deference afforded to trial courts when the sentence is within statutory limits and grounded in relevant factors.
State v. Pereira, 284 Neb. 982 (2013), State v. Svoboda, 13 Neb. App. 266 (2005), and State v. Whitaker, No. A-19-561, 2020 WL 1921748: Support the general rule that failure to object at sentencing forfeits alleged sentencing errors, including advisements and explanatory deficiencies, subject only to plain error.
State v. Horne, 315 Neb. 766 (2024): Sets the rigorous plain error standard—error must be plainly evident, and failure to correct must threaten the integrity, reputation, or fairness of the process. This standard undergirds the court’s refusal to find plain error in the trial court’s explanation or advisements.
U.S. v. Chavarria-Ortiz, 828 F.3d 668 (8th Cir. 2016) (cited by concurrence): Federal analogue for plain-error review where a defendant challenges the adequacy of the court’s explanation without objection.

Legal Reasoning

1) Denial of Continuance for Treatment

The court applied settled principles:

Abuse of discretion governs continuance decisions, and prejudice must be shown to reverse.
If the basis for the continuance is within the defendant’s control, denial is generally not an abuse.

Dawn’s record featured at least nine prior continuances, and his newfound push for inpatient treatment arose days before sentencing—clashing with a PSI completed three months earlier where he denied substance use and denied a treatment need. Because Dawn’s treatment plan and the timing of entry into treatment were within his control, and because he offered only speculation about treatment success changing the sentence, the denial fell well within the court’s discretion.

2) The Class IV Felony Presumption of Probation and § 29-2204.02(2)(c)

For Class IV felonies, § 29-2204.02(2) presumes probation unless:

(a) There is another felony imprisonment sentence,
(b) The defendant is a habitual criminal, or
(c) There are “substantial and compelling reasons” that the defendant cannot be effectively and safely supervised on probation—nonexclusively informed by § 29-2260(2) and (3).

Only subsection (c) was in play. The district court stated that imprisonment was necessary to protect the public because (i) the risk of recidivism during probation was substantial and (ii) a lesser sentence would depreciate the seriousness of the offense and promote disrespect for the law—two express § 29-2260(2) grounds.

On whether the court sufficiently “stated its reasoning,” the majority accepted a combined-hearing-and-order approach. It relied on:

The court’s express consideration of the PSI;
The defendant’s lengthy and persistent criminal history (charged/convicted in 72 criminal cases since 1998), multiple probation revocations, and “Very High” risk to reoffend;
Numerous misconduct reports while incarcerated (78);
Pending theft cases in another county and a dismissed theft matter as part of the plea bargain;
Skepticism about last-minute substance-use claims conflicting with the PSI, and about motives for seeking inpatient treatment on the eve of sentencing.

Taken together, the majority concluded, these references sufficiently conveyed the court’s reasoning that Dawn could not be effectively or safely managed on probation. It also held that the court could consider the “generous plea offer” context as part of the recidivism and respect-for-law analysis even though plea terms are not enumerated in § 29-2260(2).

The court underscored a statutory nuance: while a defendant’s failure on prior probation cannot, standing alone, supply a “substantial and compelling” reason, it is a permissible factor when combined with others—exactly the posture of Dawn’s case.

3) Forfeiture of Sentencing-Stage Errors—Explanation, Appeal Advisement, and Truth-in-Sentencing

The court announced a broad, practitioner-facing preservation rule: if a defendant is given an opportunity to object or request clarification at sentencing and does not do so, claims that the court:

insufficiently explained why it rejected probation under § 29-2204.02(3),
failed to advise of the right to appeal, or
did not provide the truth-in-sentencing advisement under § 29-2204.02(7)

are forfeited on appeal, subject only to plain error review. The record showed the court asked “Anything further today?” after imposing sentence; defense counsel answered no. That silence forfeited the above claims. The failure to advise of the right to appeal was harmless in any event because Dawn timely appealed.

On plain error, the court found none: leaving the sentence undisturbed would not damage the process’s integrity or fairness, especially given the robust record supporting the custodial sentence.

Impact and Forward-Looking Implications

A. Preservation at Sentencing Is Now Decisive

The most consequential takeaway is the court’s clear application of forfeiture to multiple sentencing-stage complaints, including the adequacy of a § 29-2204.02(3) explanation and statutory advisements. Defense counsel must contemporaneously:

Object to the adequacy of the court’s “substantial and compelling reasons” explanation;
Request more detailed reasons tied to record facts;
Prompt the court to deliver missing advisements (appeal rights; truth-in-sentencing).

Failing to do so will generally restrict appellate review to plain error, a “rigorous” standard seldom met.

B. How Trial Courts Should Build a Record Under § 29-2204.02(3)

While the majority accepted a composite of the oral colloquy and written order, the concurrences—especially Justice Papik’s—signal an expectation that trial courts explicitly connect record facts to the conclusion that community supervision would be unsafe or ineffective. Going forward, prudent sentencing judges should:

Identify the governing legal standard (probation presumption; § 29-2204.02(2)(c));
Articulate the precise facts (risk assessment, criminal history, prior supervision performance, pending conduct, credibility findings) that make supervision unsafe or ineffective;
Avoid mere recitation of the § 29-2260(2) labels by explaining “how” those factors apply to the defendant.

This approach insulates the sentence from challenge even if the defendant preserves the issue.

C. Continuances for Treatment: Timing, Control, and Prejudice

State v. Dawn is a cautionary tale: last-minute treatment plans—especially when inconsistent with prior statements—are vulnerable to denial. Defendants should marshal:

Evidence of treatment engagement initiated well before sentencing;
Objective indicators of progress (attendance, clean screens, counselor letters);
Specifics demonstrating that the continuance will likely change the sentencing calculus (to meet the prejudice requirement).

Where treatment timing is within the defendant’s control, denial will rarely be an abuse absent strong countervailing circumstances.

D. Appellate Strategy

For defense appeals post-Dawn:

If no objection was made at sentencing, frame arguments under plain error only when the record reveals an extreme mismatch between the facts and the conclusion—or a total absence of required advisements.
When preserved, press for robust application of Baxter and Dyer’s “explain-how-you-got-there” mandate. Justice Papik’s concurrence foreshadows receptivity to stricter enforcement.

Complex Concepts Simplified

Abuse of discretion: A high-deference standard. The appellate court overturns only if the trial court’s decision was unreasonable, untenable, or clearly against justice or evidence.
Continuance: Postponing a court proceeding. To win a denial on appeal, a defendant must show the trial court acted unreasonably and that the denial caused prejudice.
Class IV felony probation presumption (§ 29-2204.02): For Class IV felonies, courts must impose probation unless certain exceptions apply, including “substantial and compelling reasons” that probation would be unsafe or ineffective.
“Substantial and compelling reasons” (§ 29-2204.02(2)(c)): Strong, case-specific reasons (often drawn from § 29-2260) showing that public safety or effective supervision cannot be achieved on probation—e.g., high recidivism risk, repeated supervision failures, credibility problems, or persistent criminality.
§ 29-2260(2) factors: Considerations favoring imprisonment, including substantial risk of reoffending during probation and that a lesser sentence would depreciate the offense’s seriousness or promote disrespect for law.
Presentence investigation report (PSI): A report detailing the defendant’s history, risk assessment, and other data to inform sentencing.
Truth-in-sentencing advisement (§ 29-2204.02(7)): The court must inform the defendant how much time will actually be served under Nebraska’s sentencing laws (e.g., parole eligibility, good time).
Forfeiture at sentencing: If a defendant does not object when given the chance at sentencing, most claims about sentencing explanations or advisements are lost on appeal, except for rare “plain error.”
Plain error: A demanding standard permitting correction of obvious errors that threaten the fairness or integrity of the proceedings, even without a contemporaneous objection.
Determinate sentence: A fixed term of imprisonment (here, two years) with no post-release supervision imposed.

Conclusion

State v. Dawn consolidates Nebraska law on three fronts. First, it reaffirms that continuances—especially to facilitate late-breaking treatment—are discretionary and require proof of prejudice to reverse, with denial favored where the timing is within the defendant’s control. Second, it confirms that a sentencing court may satisfy § 29-2204.02(3)’s “state … reasoning” requirement by reading the oral colloquy together with the written order, and that courts may consider the context surrounding plea agreements as part of the § 29-2260 analysis. Third, and most practically significant, the court applies a broad forfeiture rule to unpreserved complaints about the sufficiency of the sentencing explanation and statutory advisements, leaving only a narrow plain-error path.

The concurring opinions signal healthy pressure on trial courts to be more explicit in their reasoning when denying the probation presumption for Class IV felonies. But Dawn’s principal legacy is procedural: defense counsel must object at sentencing to preserve claims about § 29-2204.02(3) compliance and advisements. In Nebraska’s post-Dawn landscape, preservation at sentencing is not optional; it is decisive.

Practice Pointers

Defense: If seeking a treatment continuance, build a record early—document treatment engagement, progress, and why the continuance will likely alter the sentencing outcome.
Defense: At sentencing, if the court imposes imprisonment on a Class IV felony, ask the court to articulate specific, case-linked reasons under § 29-2204.02(3); object if the explanation is insufficient; ensure appeal-right and truth-in-sentencing advisements are delivered.
Prosecution: Oppose late treatment continuances that appear dilatory; cite Rezac and Ramos; develop the record on risk, history, supervision failures, and credibility.
Court: State tailored reasons on the record linking § 29-2260 factors to PSI data and observed credibility issues; provide advisements expressly and invite objections before concluding the hearing.

Case: State v. Dawn, 320 Neb. 342 (Neb. Nov. 14, 2025) — Supreme Court of Nebraska. Majority opinion by Chief Justice Funke; Cassel, J., concurring; Papik, J., concurring in part and in the judgment (joined by Miller-Lerman, J.).