State v. Geller

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GELLER
Cite as 318 Neb. 441
State of Nebraska, appellee, v.
Brant A. Geller, appellant.
___ N.W.3d ___
Filed February 7, 2025. 	No. S-24-438.
1. Judgments: Appeal and Error. An appellate court reviews questions of
law independently of the lower court’s conclusion.
2. Sentences: Appeal and Error. Absent an abuse of discretion by the trial
court, an appellate court will not disturb a sentence imposed within the
statutory limits.
3. Sentences. When a sentence orally pronounced at the sentencing hearing
differs from a later written sentence, the former prevails.
4. Sentences: Time. A sentence validly imposed takes effect from the time
it is pronounced.
5. Sentences. When a valid sentence has been put into execution, the trial
court cannot modify, amend, or revise it in any way, either during or
after the term or session of court at which the sentence was imposed.
6. Sentences: Judges: Records. The circumstances under which a judge
may correct an inadvertent mispronouncement of a sentence are limited
to those instances in which it is clear that the defendant has not left the
courtroom; it is obvious that the judge, in correcting his or her language,
did not change in any manner the sentence originally intended; and no
written notation of the inadvertently mispronounced sentence was made
in the records of the court.
7. Sentences. It is within the discretion of the trial court to impose con-
secutive rather than concurrent sentences for separate crimes. This is
true even when the crimes arise out of the same incident.
8. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:16 AM CDT

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GELLER
Cite as 318 Neb. 441
Appeal from the District Court for Lancaster County, Kevin
R. McManaman, Judge. Affirmed.
Kristi J. Egger, Lancaster County Public Defender, and
Matthew F. Meyerle for appellant.
Michael T. Hilgers, Attorney General, and Erin E. Tangeman
for appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
Papik, J.
Brant A. Geller pled no contest to three counts of possession
of a controlled substance and one count of attempted posses-
sion of a deadly weapon by a prohibited person. The district
court orally pronounced his sentences and issued a written
sentencing order. A few hours later, however, the district court
issued an amended sentencing order. Geller now appeals, chal-
lenging only his sentences. He claims the district court erred
because the amended sentencing order was contrary to its ear-
lier oral pronouncement of the sentences. He also argues that
his sentences were excessive. We find no merit to his conten-
tions and therefore affirm.
BACKGROUND
Initial Charges and Plea Agreement.
This case began when Geller was charged with four counts
of possession of a controlled substance and one count of pos-
session of a deadly weapon by a prohibited person. Geller and
the State later entered into a plea agreement. Pursuant to the
plea agreement, Geller pled no contest to three counts of pos-
session of a controlled substance and one count of attempted
possession of a deadly weapon by a prohibited person, each
of which were set forth in an amended information. Because
the enumeration of the counts in the amended information is
relevant to Geller’s arguments regarding his sentences, we
note that the possession of a controlled substance charges were

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Nebraska Supreme Court Advance Sheets
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STATE v. GELLER
Cite as 318 Neb. 441
listed as counts 1 through 3, and the attempted possession of
a deadly weapon by a prohibited person charge was listed as
count 5.
According to the State’s factual basis for the no contest
pleas, law enforcement officers received a report that Geller’s
vehicle had been found unoccupied with a box for a handgun
inside. Officers later found Geller at a gas station and searched
his vehicle after a drug detection dog indicated the presence
of narcotics. Inside the vehicle, officers found a zipper pouch
containing several controlled substances and a backpack con-
taining a pair of brass knuckles. Geller had previously been
convicted of a felony.
The 	district 	court 	accepted 	Geller’s 	no 	contest 	pleas.
Pursuant to the same plea agreement, Geller entered no con-
test pleas to charges of third degree domestic assault and
attempted witness tampering that were filed in another case.
The district court also accepted Geller’s no contest pleas to
those charges. The district court scheduled a single sentencing
hearing for Geller’s convictions in both cases.
Sentencing Hearing.
At the sentencing hearing, counsel for both Geller and the
State presented arguments and Geller expressed remorse dur-
ing allocution. The district court then discussed the factors it
considered in imposing the sentences, specifically mentioning
Geller’s age, background, and criminal history.
Before announcing the specific terms of the sentences, the
district court stated,
Now with regard to sentencing, you had quite a col-
lection of drugs, and you had four charges. One was
dropped, and then your possession of a deadly weapon
by a prohibited person — that’s a Class III felony — was
dropped down to an attempt, which was a Class IV fel-
ony. In that case, I am going to run the sentences for the
drugs concurrently. But the weapon was a separate crime.
And it’s not just a matter of Adderall versus alprazolam
or hydrocodone. It was a weapon that you’re not allowed

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GELLER
Cite as 318 Neb. 441
to have, so that’s going to be consecutive; and then the
next case is consecutive.
(Emphasis supplied.)
The district court then stated the specific terms of the sen-
tence for each conviction. For each of the convictions for pos-
session of a controlled substance, the district court sentenced
Geller to 6 months’ imprisonment and 12 months’ post-release
supervision. For the attempted possession of a deadly weapon
by a prohibited person conviction, the district court sentenced
Geller to 18 months’ imprisonment and 12 months’ post-release
supervision.
After reciting the various terms of imprisonment and post-
release supervision for each conviction, the district court
stated: “The sentence is consecutive from today’s date with
any sentence currently being served by [Geller] and is consec-
utive to the sentence[s] imposed in [the other case]. Counts 1,
2 and 3 are to be served concurrently. Count 5 is to be served
consecutive to Counts 1, 2 and 3.” (Emphasis supplied.)
Then, after stating that Geller would be remanded to the
custody of the Nebraska Department of Correctional Services
and entitled to some credit for time served, the district court
said, “Following release from incarceration, [Geller] will serve
the term of 12 months post-release supervision on each count,
concurrently, under the supervision of the Office of Probation
Administration.” (Emphasis supplied.)
Still later at the sentencing hearing, the district court stated
that Geller
shall pay the probation administrative enrollment fee of
$30 and the monthly programming fee of $25 per month
for 12 months; Those fees are due and payable to the
clerk of the district court on or before the 10th day
of each month following release from incarceration —
should be for 24 months, the 12 $25 per month — shall
pay for chemical testing on post-release supervision in the
amount of $5 per month for 24 months . . . .
(Emphasis supplied.)

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GELLER
Cite as 318 Neb. 441
A written sentencing order entered on the same day included
many of the same provisions the district court recited orally.
After setting forth the various terms of incarceration and
post-release supervision, the district court stated in its writ-
ten sentencing order, “Counts I, II & III are to be served
concurrently. Count V is to be served consecutive to Counts
I-III.” The written sentencing order also stated under a head-
ing titled “ORDER FOR POST-RELEASE SUPERVISION”
that Geller “shall serve a term of 12 months of Post-Release
Supervision, on each count, concurrently” but also that Geller
“[s]hall pay a monthly Probation Programming Fee of $25.00
per month for 24 months” and “[s]hall pay for chemical testing
while on post-release supervision in the amount of $5.00 per
month for 24 months.”
A few hours after entering its written sentencing order,
the district court issued an amended sentencing order. The
amended sentencing order provided that “the Order for Post-
Release Supervision listed in the Order of Sentence does not
correspond with the sentence of the court and was in error.”
The amended order continued:
IT IS THEREFORE ORDERED that the Order for
Post-Release Supervision is amended as follows:
Following release from the sentence of incarcera-
tion imposed by the Court, the defendant shall serve a
term of 12 months of Post-Release Supervision, on each
count, under the supervision of the Office of Probation
Administration. Counts I, II & III are to be served con-
currently and Count V is consecutive to Counts I, II
& III.
All other terms of the [original] Order of Sentence of
May 9, 2024, not modified by this order remain in full
force and effect. An amended commitment is to issue.
(Emphasis supplied.)
Geller filed a timely appeal, and we moved the case to our
docket.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GELLER
Cite as 318 Neb. 441
ASSIGNMENTS OF ERROR
Geller assigns that the district court erred by issuing an
amended sentencing order that was contrary to the court’s
orally pronounced sentence. He also assigns that the district
court erred by ordering his sentence for attempted possession
of a deadly weapon by a prohibited person to run consecu-
tively to his sentences for possession of a controlled substance
and that his sentences, as a whole, were excessive.
STANDARD OF REVIEW
[1] Whether the district court erred by issuing an amended
sentencing order that is contrary to the orally pronounced sen-
tence presents a question of law. See State v. Schnabel, 260
Neb. 618, 618 N.W.2d 699 (2000). An appellate court reviews
questions of law independently of the lower court’s conclu-
sion. Herman v. Peter Tonn Enters., ante p. 52, 13 N.W.3d
177 (2024).
[2] Absent an abuse of discretion by the trial court, an appel-
late court will not disturb a sentence imposed within the statu-
tory limits. State v. Dejaynes-Beaman, 317 Neb. 131, 8 N.W.3d
779 (2024).
ANALYSIS
Permissibility of Amended Sentencing Order.
We first address Geller’s argument that the district court
erred by issuing a written sentencing order that was contrary
to the sentence it orally pronounced at the sentencing hearing.
According to Geller, the district court ordered each term of
post-release supervision to run concurrently to the others at
the sentencing hearing but attempted to change course in the
amended sentencing order by ordering the term of post-release
supervision on the weapon conviction to run consecutively
to the terms of post-release supervision on the other convic-
tions. Geller argues that our precedent did not permit the
district court to issue a written sentencing order contrary to
the sentence it orally pronounced at the sentencing hearing.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GELLER
Cite as 318 Neb. 441
Consequently, he asks us to find the amended sentencing order
was of no effect.
[3-6] As Geller points out, there is ample authority from this
court recognizing that a sentencing court cannot modify a val-
idly imposed oral sentence via a subsequent written sentencing
order. We have held that when a sentence orally pronounced at
the sentencing hearing differs from a later written sentence, the
former prevails. State v. Olbricht, 294 Neb. 974, 885 N.W.2d
699 (2016); State v. Sims, 277 Neb. 192, 761 N.W.2d 527
(2009). This follows from our holding that a sentence validly
imposed takes effect from the time it is pronounced and that
when a valid sentence has been put into execution, the trial
court cannot modify, amend, or revise it in any way, either dur-
ing or after the term or session of court at which the sentence
was imposed. State v. Lessley, 301 Neb. 734, 919 N.W.2d 884
(2018); Schnabel, supra. We have said that any attempt to do
so is of no effect, and the original sentence remains in force.
Lessley, supra; Schnabel, supra. We have also recognized that
the circumstances under which a judge may correct an inad-
vertent mispronouncement of a sentence are limited to those
instances in which it is clear that the defendant has not left
the courtroom; it is obvious that the judge, in correcting his or
her language, did not change in any manner the sentence origi-
nally intended; and no written notation of the inadvertently
mispronounced sentence was made in the records of the court.
Lessley, supra.
Geller argues that under the foregoing principles, it is the
district court’s oral pronouncement of his sentences that must
govern over the amended sentencing order. But the principles
upon which Geller relies, well-established as they are, can help
Geller in this case only if the substance of the district court’s
orally pronounced sentences can be determined. It would make
little sense for us to say that the orally pronounced sentences
must govern if we cannot determine what the terms of the
orally pronounced sentences were. And, on the question of
whether all Geller’s terms of post-release supervision were

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GELLER
Cite as 318 Neb. 441
to run concurrently or the term of post-release supervision on
the weapon conviction was to run consecutively to the other
terms, we find the district court’s oral pronouncement any-
thing but clear.
Geller focuses exclusively on one sentence of the district
court’s oral pronouncement when the district court did indeed
state that Geller would “serve the term of 12 months post-
release supervision on each count, concurrently.” Based on
that language alone, Geller argues that while the district court
ordered his term of incarceration on the weapon conviction
to run consecutively to his terms of incarceration on the pos-
session convictions, it ordered his terms of post-release super-
vision to run concurrently. On that point, Geller notes that we
have previously presumed that a trial court has discretion with
respect to sentences of incarceration and post-release supervi-
sion to “make one form [of punishment] consecutive and the
other concurrent.” State v. Galvan, 305 Neb. 513, 519, 941
N.W.2d 183, 189 (2020), modified on denial of rehearing 306
Neb. 498, 945 N.W.2d 888.
The language from the oral pronouncement Geller relies
upon, however, is not the only statement the district court
made as to whether Geller’s terms of post-release supervision
would run concurrently or consecutively. As set forth above,
before the district court imposed the specific sentencing terms,
it said that that the sentence for the weapon conviction was
“going to be consecutive.” In addition, immediately after the
district court set forth the specific terms of imprisonment and
post-release supervision, it stated that “Counts 1, 2 and 3 are
to be served concurrently” but that “Count 5 is to be served
consecutive to Counts 1, 2 and 3.” And finally, the district
court stated that Geller would be obligated to pay fees associ-
ated with post-release supervision for 24 months, which would
be consistent with the term of post-release supervision on the
weapon conviction running consecutively to the terms of post-
release supervision on the other charges and inconsistent with
the terms of post-release supervision running concurrently.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GELLER
Cite as 318 Neb. 441
Given the language summarized above, we find that the
district court’s orally pronounced sentence was ambiguous or
contradictory as to whether each of Geller’s terms of post-
release supervision were to run concurrently to each other or
the term of post-release supervision for his weapon conviction
was to run consecutively to the terms of post-release supervi-
sion on the other charges. Accordingly, we must determine
whether a sentencing court may clarify an ambiguous or con-
tradictory orally pronounced sentence in a subsequent written
sentencing order.
The Nebraska Court of Appeals has held that when the oral
pronouncement of a sentence is ambiguous, appellate courts
can and should look to a subsequent written sentencing order
to clarify the ambiguity. The Court of Appeals first recognized
this proposition in State v. Sorenson, 2 Neb. App. 998, 520
N.W.2d 28 (1994), affirmed as modified 247 Neb. 567, 529
N.W.2d 42 (1995), and has followed it in later unpublished
decisions. See, e.g., State v. Janousek, Nos. A-17-875, A-17-
876, 2018 WL 3752165 (Neb. App. Aug. 7, 2018) (selected for
posting to court website); State v. Wright, No. A-99-1193, 2001
WL 968475 (Neb. App. Aug. 28, 2001) (not designated for
permanent publication).
In its opinion in Sorenson, the Court of Appeals cited deci-
sions from many other jurisdictions holding that a written
sentencing judgment may be used to resolve ambiguities in
an oral pronouncement. See, e.g., U.S. v. Villano, 816 F.2d
1448, 1451 (10th Cir. 1987) (“[w]hen an orally pronounced
sentence is ambiguous, . . . the judgment and commitment
order is evidence which may be used to determine the intended
sentence”); Marshall v. State, 621 N.E.2d 308, 323 (Ind. 1993)
(holding that written order “may be used to determine what
sentence was intended where the oral sentence is ambiguous”);
State v. Munk, 453 N.W.2d 124, 125 (S.D. 1990) (holding that
“if the oral sentence is ambiguous, the written judgment may
be relied upon to clarify the ambiguity”).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GELLER
Cite as 318 Neb. 441
Not only is the rule the Court of Appeals adopted in
Sorenson recognized in many other jurisdictions, we also find
it sound and consistent with our precedent. This court granted
a petition for further review in Sorenson and affirmed the
judgment of the Court of Appeals as modified. See State v.
Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995). Although this
court did not adopt the same rationale as the Court of Appeals,
it agreed with the Court of Appeals that, under the circum-
stances, the district court’s written journal entry describing
the defendant’s sentence was controlling over its oral pro-
nouncement. Rather than relying on the oral pronouncement’s
ambiguity, however, this court found that the written journal
entry controlled because, to the extent the district court’s oral
pronouncement imposed a different sentence, it was not per-
mitted by statute and was consequently “invalid.” Id. at 573,
529 N.W.2d at 45.
This court thus recognized in Sorenson that a written sen-
tencing order will control over an oral pronouncement to
the extent the oral pronouncement is invalid. And while this
court found the oral pronouncement in Sorenson invalid on
the grounds that it was not permitted by statute, courts have
recognized that sentences are likewise invalid to the extent
their terms cannot be determined as a result of contradictory
or ambiguous language. See, e.g., United States v. Alverson,
666 F.2d 341, 348 (9th Cir. 1982) (holding that correction of
ambiguous sentence does not violate double jeopardy because
“the initial ambiguous sentence is of no effect”); United States
v. Moss, 614 F.2d 171 (8th Cir. 1980) (vacating and remand-
ing for resentencing on grounds that sentences imposed were
ambiguous). See, also, United States v. Daugherty, 269 U.S.
360, 363, 46 S. Ct. 156, 70 L. Ed. 309 (1926) (“[s]entences
in criminal cases should reveal with fair certainty the intent of
the court and exclude any serious misapprehensions by those
who must execute them”).
Permitting a trial court to clarify an ambiguous or contra-
dictory oral pronouncement via a subsequent written order

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Nebraska Supreme Court Advance Sheets
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STATE v. GELLER
Cite as 318 Neb. 441
is also consistent with the line of cases Geller relies upon in
this case. Those cases, which we have discussed above, limit
a sentencing court’s authority to modify or amend an orally
pronounced sentence, but only if the orally pronounced sen-
tence is valid. See, State v. Lessley, 301 Neb. 734, 744, 919
N.W.2d 884, 891 (2018) (“[a] sentence validly imposed takes
effect from the time it is pronounced”) (emphasis supplied);
State v. Schnabel, 260 Neb. 618, 623, 618 N.W.2d 699, 703
(2000) (“[w]hen a valid sentence has been put into execution,
[a] trial court cannot modify, amend, or revise it in any way,
either during or after the term or session of court at which the
sentence was imposed”) (emphasis supplied).
At oral argument, Geller argued that rather than allowing
ambiguous orally pronounced sentences to be clarified by a
subsequent written order, we should apply a different rule to
clarify ambiguity in this case. He argues that any ambiguity
as to whether his terms of post-release supervision were to
run consecutively or concurrently should be resolved in favor
of the terms being served concurrently, because we have held
that when sentences are imposed at the same time, “unless the
court specifically states otherwise at the time the sentences are
pronounced, they run concurrently with each other.” State v.
Harms, 304 Neb. 441, 447, 934 N.W.2d 850, 855 (2019).
But that rule, as we have articulated it, does not apply here.
In this case, the district court did specifically state that Geller’s
sentences were to run consecutively. The question as to what
sentence the district court imposed arises not because the dis-
trict court said nothing, but because the oral pronouncement
was contradictory. Geller offers no compelling argument as to
why the rule should be extended to cover situations where the
sentencing court specifically states that sentences should run
both consecutively and concurrently.
Our holding in this case that a sentencing court may clarify
an ambiguous orally pronounced sentence in a subsequent
written sentencing order is limited to those cases in which
the ambiguity exists on the face of the words of the oral

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Nebraska Supreme Court Advance Sheets
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STATE v. GELLER
Cite as 318 Neb. 441
pronouncement, or what in some contexts is referred to as a
“patent ambiguity.” See, e.g., In re Estate of Mousel, 271 Neb.
628, 632, 715 N.W.2d 490, 494 (2006). For purposes of this
case, we need not and do not consider whether a sentencing
court has the same authority if the oral pronouncement con-
tains a “latent ambiguity.” See id. at 631, 715 N.W.2d at 494.
Because the district court’s amended sentencing order clari-
fied the ambiguity in the oral pronouncement, we conclude the
district court did not err by issuing the amended sentencing
order and Geller’s assignment of error lacks merit.
Excessive Sentences Arguments.
Having determined that the district court did not err by issu-
ing the amended sentencing order, we now turn to whether the
sentences imposed were excessive. Geller argues that the dis-
trict court should have ordered the sentence on his attempted
possession of a deadly weapon by a prohibited person convic-
tion to be served concurrently to the sentences on his posses-
sion of a controlled substance convictions and that, overall, the
district court should have ordered a more lenient sentence.
[7] It is within the discretion of the trial court to impose
consecutive 	rather 	than 	concurrent 	sentences 	for 	separate
crimes. This is true even when the crimes arise out of the
same incident. State v. Artis, 296 Neb. 172, 893 N.W.2d 421
(2017), modified on denial of rehearing 296 Neb. 606, 894
N.W.2d 349. In addition, Geller’s sentences were within statu-
tory limits. Accordingly, in order to show that his sentences
were excessive, Geller must establish that the district court
abused its discretion in sentencing him. See State v. Dejaynes-
Beaman, 317 Neb. 131, 8 N.W.3d 779 (2024).
[8] But Geller can show no abuse of discretion. As we
often say, an abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. Id. Geller has not shown that the district
court’s sentences clear this high hurdle. We have on numerous

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STATE v. GELLER
Cite as 318 Neb. 441
occasions set forth the various factors that a trial court is to
consider in fashioning a sentence. See, e.g., State v. Thomas,
311 Neb. 989, 977 N.W.2d 258 (2022). Geller points to some
of those factors and argues they weighed in favor of concur-
rent or more lenient sentences in this case. There is nothing
in the record, however, that suggests the district court did not
consider these factors in selecting the sentences it imposed.
Neither is there any indication that the district court consid-
ered impermissible factors. Mindful that it is not our function
to conduct a de novo review of the record to determine what
sentence we would impose, see State v. Horne, 315 Neb. 766,
1 N.W.3d 457 (2024), we find that the district court did not
abuse its discretion in sentencing Geller.
CONCLUSION
We find no merit to Geller’s assignments of error and there-
fore affirm.
Affirmed.