State v. Guardiola

- 915 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
State of Nebraska, appellee, v. Joshua
Joseph Guardiola, appellant.
___ N.W.3d ___
Filed May 28, 2024. 	No. A-23-584.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law, which requires the appellate court to reach a conclusion
independent from the lower court’s decision.
2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules and judicial discretion is involved only when the rules
make discretion a factor in determining admissibility.
3. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
4. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
5. ____: ____. The mode and manner of appeal is statutory, and a litigant
who complies with the requirements of the applicable statute is entitled
to a review of the case to the extent of the scope provided by law.
6. Constitutional Law: Statutes: Jurisdiction: Time: Appeal and Error.
The appellate jurisdiction of a court is contingent upon timely compli-
ance with constitutional or statutory methods of appeal.
7. Jurisdiction: Appeal and Error. An appellate court acquires jurisdic-
tion over an action when a notice of appeal has been filed and a docket
fee has been paid.
8. Jurisdiction: Affidavits: Fees: Appeal and Error. In lieu of deposit-
ing the required docket fee, Neb. Rev. Stat. § 29-2306 (Reissue 2016)
allows a criminal defendant to request to proceed in forma pauperis on
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:39 AM CDT

- 916 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
appeal, and, in this situation, a poverty affidavit serves as a substitute
for the docket fee otherwise required upon appeal.
9. Courts: Jurisdiction: Affidavits: Waiver: Appeal and Error. If an
alleged defect in a poverty affidavit has to do with the substantive alle-
gations in the affidavit or otherwise involves the merits of whether the
district court should grant the application to proceed in forma pauperis,
the issue is not jurisdictional and is waived if not raised in the dis-
trict court.
10. Jurisdiction: Affidavits. A jurisdictional issue exists if the affidavit
lacks one of the hallmarks of an affidavit such as the signature of the
affiant and a certificate of an authorized officer.
11. Affidavits: Good Cause: Appeal and Error. Absent good cause evident
in the record, it is a jurisdictional defect for the impoverished appellant
to fail to personally sign before a notary the affidavit that substitutes for
the payment of fees and costs and the posting of security.
12. Courts: Jurisdiction: Affidavits. The relative staleness of the execution
of a poverty affidavit is not a jurisdictional issue; rather, it is a relevant
consideration by the district court in determining whether the party fil-
ing the application has sufficient funds to pay costs, fees, or security.
13. Judges: Evidence: Appeal and Error. The exercise of judicial dis-
cretion is implicit in determinations of relevancy, and a trial court’s
decision regarding relevancy will not be reversed absent an abuse
of discretion.
14. Criminal Law: Statutes: Legislature: Sentences. Generally, under
State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971), when the
Legislature amends a criminal statute by mitigating the punishment after
the commission of a prohibited act but before final judgment, the pun-
ishment is that provided by the amendatory act unless the Legislature
specifically provided otherwise.
15. ____: ____: ____: ____. The doctrine under State v. Randolph, 186 Neb.
297, 183 N.W.2d 225 (1971), does not apply if the Legislature created a
new crime rather than merely changing the penalty for an existing crime.
16. Sentences: Final Orders: Appeal and Error. If a defendant appeals his
or her sentence, then the sentence is not a final judgment until the entry
of a final mandate.
Appeal from the District Court for Hall County: Patrick M.
Lee, Judge. Affirmed in part, and in part vacated and remanded
for resentencing.
Gerard 	A. 	Piccolo, 	Hall 	County 	Public 	Defender, 	for
appellant.

- 917 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
Michael T. Hilgers, Attorney General, and Nathan A. Liss
for appellee.
Moore, Bishop, and Arterburn, Judges.
Bishop, Judge.
INTRODUCTION
Following a jury trial in the Hall County District Court,
Joshua Joseph Guardiola was convicted of possession of a
controlled substance and sentenced to 10 to 15 years’ impris-
onment. Guardiola appeals, claiming the district court erred
in excluding certain evidence and imposing an inappropriate
sentence in light of a recent change to the habitual criminal
statute. See Neb. Rev. Stat. § 29-2221 (Supp. 2023). We affirm
Guardiola’s conviction. However, because we conclude that
Guardiola’s current and prior felony convictions place him
in a lower sentencing range under the amended version of
§ 29-2221, we vacate his sentence and remand the cause for
resentencing.
BACKGROUND
Charges
On October 27, 2022, the State filed an information charg-
ing Guardiola with three counts: count I, possession of a
controlled substance (methamphetamine), a Class IV felony,
pursuant to Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2020);
count II, possession of marijuana (less than 1 ounce), an
infraction, pursuant to § 28-416(13)(a); and count III, posses-
sion of drug paraphernalia, an infraction, pursuant to Neb. Rev.
Stat. § 28-441 (Cum. Supp. 2020). Count I of the information
also alleged Guardiola was a habitual criminal, pursuant to
§ 29-2221(1), stating:
[Guardiola] is a habitual criminal, being twice con-
victed of a crime, sentenced and committed to prison
for terms of not less than one year each, to-wit: That
[Guardiola] was convicted of the offense of Assault on
a Police Officer 3rd Degree . . . on May 30th, 2000[,]

- 918 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
and sentenced to a term of 15 months to 30 months in
the Nebraska Penal & Correctional Complex; and that
[Guardiola] was convicted of the offense of Aiding and
Abetting Robbery . . . on January 12th, 2011[,] and sen-
tenced to a term of 3 years to 5 years in the Nebraska
Penal & Correctional Complex; and that [Guardiola]
was convicted of the offense of Assault 2nd Degree on
September 5th, 2013[,] . . . and sentenced to a term of
3 years to 5 years in the Nebraska Penal & Correctional
Complex . . . .
On March 22, 2023, the State moved to dismiss counts II
and III of the information, and the district court granted the
motion.
Trial and Sentencing
Trial was held on March 22, 2023. Evidence was presented
through photographs, video recordings, and testimony from
law enforcement, a crime laboratory technician, an analyst, and
Guardiola.
Damian McAlevy testified that he had been an officer
with the Grand Island Police Department for over 4 years.
On May 1, 2022, he received a call for service regarding a
reported disturbance involving “a male and female” who were
“yelling at each other.” Officer McAlevy made contact with
the male, who identified himself as Guardiola. During the
encounter, Officer McAlevy learned that Guardiola had an
active warrant for his arrest and, in the process of completing
the arrest, Officer McAlevy searched Guardiola. Guardiola
informed Officer McAlevy that he had “dope on him,” as
well as “Delta-8 THC, and a glass pipe” and that those items
were located “in his pants area.” Officer McAlevy understood
“dope” to mean methamphetamine; this understanding was
based on his training and experience. He had “numerous con-
tacts with individuals identifying dope as being the same term
for methamphetamine and not any other substance.”

- 919 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
According to Officer McAlevy, while searching Guardiola,
he located a cigarette pack containing a “white crystalline
substance” wrapped in a piece of plastic torn from a grocery
bag. Guardiola was wearing two pairs of pants and had made
a makeshift pocket by rolling up one of the pant legs, which
is where the cigarette pack was located. The “white crystal-
line substance” was subject to testing by the Nebraska State
Patrol Crime Laboratory and determined to be methamphet-
amine. Officer McAlevy also found a glass pipe in Guardiola’s
pants that, based on his experience, he believed was a pipe
“used for the smoking of controlled substances . . . [u]sually
methamphetamine.” Officer McAlevy also found marijuana
on Guardiola that was wrapped in a piece of plastic torn from
a grocery bag. On cross-examination, when asked whether he
knew where the methamphetamine found on Guardiola ini-
tially “came from, like a store or anything like that,” Officer
McAlevy responded, “No, I don’t know.”
Photographs of the glass pipe and methamphetamine were
received into evidence, as well as Officer McAlevy’s body
camera footage of his encounter with Guardiola. The foot-
age was consistent with Officer McAlevy’s testimony and
further showed that when Officer McAlevy arrived on the
scene, Guardiola was arguing with a woman driving a van.
Guardiola identified the woman as his girlfriend. On cross-
examination, 	Guardiola’s 	counsel 	asked 	Officer 	McAlevy
whether 	Guardiola’s 	girlfriend 	was 	searched. 	The 	State
objected to the question based on relevance, and the dis-
trict court sustained the objection. Outside the presence of
the jury, Guardiola’s counsel made an offer of proof, asking
Officer McAlevy what his response would be if asked whether
Guardiola’s girlfriend was searched. Officer McAlevy stated
that she was not searched.
Guardiola testified that the cigarette pack did not belong to
him. When asked how he came into possession of it, he stated
that he was getting ready to go to the store with his girlfriend

- 920 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
when a friend asked to borrow his truck. He declined but his
friend insisted on taking the truck and jumped into the vehicle.
He stated that he “jumped out” and warned his friend that his
girlfriend would be upset. Guardiola’s friend then instructed
him to “just take this stuff,” and Guardiola stated he “grabbed
everything she gave [him].” Guardiola testified that the ciga-
rette pack was among the items his friend gave him and
that he was not aware of its contents at that time. Guardiola
denied telling Officer McAlevy that he had methamphetamine
on him. Guardiola admitted that he mentioned to Officer
McAlevy that he had marijuana and “dope,” but claimed that
“dope” was “the terminology used for marijuana these days.”
On cross-examination, Guardiola explained that he listed dope
and marijuana separately when speaking to Officer McAlevy
because he was unsure if the substance he possessed was
“Delta-8 or marijuana.” He testified that “meth is its own cat-
egory. Meth is meth.”
During closing arguments, the State argued that on May
1, 2022, Guardiola was knowingly in possession of metham-
phetamine. Guardiola argued that, while he indeed had the
cigarette pack on his person at the time of the search, he was
unaware the cigarette pack contained methamphetamine. After
deliberation, the jury found Guardiola guilty of possession
of a controlled substance, and the district court accepted the
jury’s verdict.
A hearing was held on July 5, 2023, regarding the habitual
criminal enhancement, as well as sentencing. The district
court received into evidence transcripts from cases in which
Guardiola was previously convicted of: third degree assault
on a peace officer, a Class IIIA felony (sentenced to 15 to
30 months’ imprisonment); aiding and abetting a robbery, a
Class II felony (sentenced to 3 to 5 years’ imprisonment);
and second degree assault, a Class III felony (sentenced to
3 to 5 years’ imprisonment). The court found that Guardiola
was a habitual criminal and sentenced him to 10 to 15 years’
imprisonment with 71 days’ credit for time served. Guardiola

- 921 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
was also sentenced for convictions in a separate case dur-
ing the hearing. A written sentencing order was entered that
same day.
Appeal
On July 31, 2023, Guardiola filed a notice of appeal with the
district court, as well as a motion to proceed in forma pauperis
and a poverty affidavit signed by Guardiola on May 5. The
court granted Guardiola’s motion to proceed in forma pauperis
on July 31, noting that “upon examination of the Affidavit, it
appears that the appeal is being prosecuted in good faith,” and
that Guardiola was “authorized to proceed with this appeal in
forma pauperis.”
The State subsequently filed a motion with this court on
October 26, 2023, seeking summary dismissal of Guardiola’s
appeal, alleging that Guardiola’s poverty affidavit filed in
lieu of a docket fee was not proper, and therefore this court
lacked jurisdiction over the appeal. One poverty affidavit in
our record shows a file-stamped date of July 31, 2023, and
it consists of two pages: the first page contains Guardiola’s
averments and signature (on May 5) and the second page con-
tains a certificate of service. Another poverty affidavit in our
record shows a file-stamped date of October 23, under which
the file stamp for July 31 can be seen in part. This poverty
affidavit contains the same two pages as the other affidavit
but includes a middle page reflecting the notary public’s
signature confirming the document being “subscribed and
sworn to” before her on May 5. Notably, although the notary
public’s signature and confirmation were present in this docu-
ment, her notarial seal was not. A supplemental transcript was
filed containing an affidavit of the notary public attesting to
being a notary in the State of Nebraska on May 5 and attach-
ing a copy of her notarial certificate. In its motion to summar-
ily dismiss Guardiola’s appeal, the State argued that the pov-
erty affidavit was defective because, as initially filed, it did
not contain a notary public’s authentication. We declined to

- 922 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
grant the State’s motion for summary dismissal and instructed
the parties to brief the issue of jurisdiction.
ASSIGNMENTS OF ERROR
Guardiola assigns, restated, that the district court erred in
(1) not allowing testimony that his girlfriend was not searched
and (2) imposing an inappropriate sentence in light of a recent
change to the habitual criminal statute.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent from the lower court’s decision. State v. Blake,
310 Neb. 769, 969 N.W.2d 399 (2022).
[2,3] In proceedings where the Nebraska Evidence Rules
apply, 	the 	admissibility 	of 	evidence 	is 	controlled 	by 	the
Nebraska Evidence Rules and judicial discretion is involved
only when the rules make discretion a factor in determining
admissibility. State v. Wood, 310 Neb. 391, 966 N.W.2d 825
(2021). Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. Id.
[4] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Lierman, 305 Neb. 289, 940 N.W.2d
529 (2020).
ANALYSIS
Jurisdiction
[5,6] We first address the State’s contention that we lack
jurisdiction over Guardiola’s appeal because the poverty affi-
davit was defective. The mode and manner of appeal is
statutory, and a litigant who complies with the requirements
of the applicable statute is entitled to a review of the case

- 923 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
to the extent of the scope provided by law. State v. Blake,
supra. The appellate jurisdiction of a court is contingent upon
timely compliance with constitutional or statutory methods of
appeal. Id.
[7,8] Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2022) sets
forth the procedure for perfecting an appeal and provides
that an appellate court acquires jurisdiction over an action
when a notice of appeal has been filed and a docket fee has
been paid. See State v. Greer, 309 Neb. 667, 962 N.W.2d 217
(2021). In lieu of depositing the required docket fee, Neb.
Rev. Stat. § 29-2306 (Reissue 2016) allows a criminal defend-
ant to request to proceed in forma pauperis on appeal, and,
in this situation, a poverty affidavit serves as a substitute for
the docket fee otherwise required upon appeal. State v. Greer,
supra. “If an application to proceed in forma pauperis is filed
and granted, the Court of Appeals or Supreme Court shall
acquire jurisdiction of the case when the notice of appeal is
filed with the clerk of the district court.” § 29-2306.
[9] If an alleged defect in a poverty affidavit has to do
with the substantive allegations in the affidavit or otherwise
involves the merits of whether the district court should grant
the application to proceed in forma pauperis, the issue is
not jurisdictional and is waived if not raised in the district
court. See State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86
(2000) (Nebraska Supreme Court proceeded to underlying
merits of appeal, even though appellant’s poverty affidavit did
not state nature of action or that appellant believed he was
entitled to redress as required by Neb. Rev. Stat. § 25-2301.01
(Reissue 2016)).
[10,11] However, a jurisdictional issue exists if the alleged
defect is that the affidavit lacks one of “the hallmarks of an
affidavit such as the signature of the affiant and a certificate
of an authorized officer.” State v. Ruffin, 280 Neb. 611, 618,
789 N.W.2d 19, 25 (2010) (despite district court’s grant of
appellant’s motion to proceed in forma pauperis, appellate
jurisdiction did not vest because poverty affidavit was signed

- 924 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
by appellant’s attorney instead of appellant and there was no
good cause shown why appellant could not do so himself).
Absent good cause evident in the record, it is a jurisdictional
defect for the impoverished appellant to fail to personally sign
before a notary the affidavit that substitutes for the payment of
fees and costs and the posting of security. State v. Blake, 310
Neb. 769, 969 N.W.2d 399 (2022).
[12] We begin by first pointing out that Guardiola signed
the poverty affidavit on May 5, 2023, but did not file it until
July 31 when he filed his appeal. The State did not chal-
lenge this aspect of the poverty affidavit, likely because
the Nebraska Supreme Court recently held that the “relative
staleness of the execution of a poverty affidavit” is not juris-
dictional; rather, it is a relevant consideration by the district
court in determining whether the party filing the application
has sufficient funds to pay costs, fees, or security. State v.
Blake, 310 Neb. at 788, 969 N.W.2d at 415.
However, the State alleges a defect with Guardiola’s pov-
erty affidavit for a different reason. It claims that “the initial
poverty affidavit filed on July 31, 2023[,] was not notarized
and the second poverty affidavit filed on October 23, 2023[,]
was untimely.” Brief for appellee at 13-14. As previously set
forth, authentication of a poverty affidavit by a notary public
and the timeliness of the document’s filing are jurisdictional
issues. See State v. Ruffin, supra. However, we find the record
supports that Guardiola’s poverty affidavit was sufficiently
executed at the time it was initially filed on July 31.
It appears that the second page of Guardiola’s poverty
affidavit, containing the notary’s verification of his signature
on May 5, 2023, was inadvertently excluded in Guardiola’s
original electronic filing on July 31. However, supplemental
transcripts were filed demonstrating that a notary public had
verified Guardiola’s signature on May 5. And although the
notary public failed to place her notarial seal by her signature
in the poverty affidavit, an additional supplemental transcript
was filed containing the notary’s affidavit attesting to being

- 925 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
a notary public in the State of Nebraska on May 5, 2023, and
attaching a copy of her notarial certificate.
The Nebraska Supreme Court has previously shown leni-
ency in circumstances in which an appellant has filed an
affidavit that appears insufficient on its face but may be a
valid affidavit upon further showing. For example, in State
v. Haase, 247 Neb. 817, 530 N.W.2d 617 (1995), the court
provided the appellant with two opportunities to show that
the poverty affidavit at issue was valid at the time it was
filed. There, the poverty affidavit was signed before a notary
but bore no notarial seal. The court issued an order direct-
ing the appellant to show cause why the appeal should not
be dismissed. The appellant responded that the seal had been
inadvertently left out in the original filing. The court then
issued an order directing that an affidavit be filed attesting
to whether, at the time the notary signed the original filing,
the notary was a duly qualified notary public in the State of
Nebraska. The appellant then responded that the notary was
certified as a notary public in Iowa, not Nebraska, at the time
the poverty affidavit was notarized in Nebraska. Pointing out
that the power of a notary to perform notarial functions is
limited to the jurisdiction in which the commission issued,
the court found the poverty affidavit to be improper and dis-
missed the appeal.
Here, Guardiola demonstrated that his poverty affidavit
was signed on May 5, 2023, as verified by a notary public
that same day; it was therefore a proper affidavit at the time
it was filed on July 31. Although the notary public’s verifica-
tion failed to include a notarial seal, this omission was satis-
factorily cured upon the filing by the notary of an affidavit
attesting to being a notary in the State of Nebraska on May
5 (when the affidavit was signed and verified), and attaching
a copy of the notary public’s notarial certificate confirming
her active status in Nebraska from April 2022 through April
2026. Guardiola has established that the poverty affidavit he
timely filed on July 31 was valid because it was personally

- 926 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
signed and authenticated by a notary public duly commis-
sioned by the State of Nebraska.
Because the record sufficiently supports that the poverty
affidavit in this case was properly executed and timely filed,
this court has jurisdiction over Guardiola’s appeal.
Excluded Testimony
Guardiola claims that the district court erred when it sus-
tained the State’s relevancy objection and did not allow
Officer McAlevy to testify that Guardiola’s girlfriend was
not searched. Guardiola argues that “[t]hroughout the trial,
the decisive question became . . . Guardiola’s knowledge of
the methamphetamine on him.” Brief for appellant at 8. He
contends that the excluded testimony would have suggested
that the methamphetamine “was placed on [him] without his
knowledge.” Id. Guardiola notes that he and his girlfriend
were arguing on May 1, 2022, suggesting “some animosity
between the two.” Id. Guardiola further claims that his girl-
friend was near him prior to Officer McAlevy’s arrival and
therefore, “she is a possible person to have placed the meth-
amphetamine and/or marijuana on [him].” Id.
Relevant evidence means evidence having any tendency
to make the existence of any fact that is of consequence to
the determination of the action more probable or less prob-
able than it would be without the evidence. Neb. Rev. Stat.
§ 27-401 (Reissue 2016). According to Officer McAlevy,
while searching Guardiola, he located a cigarette pack con-
taining a “white crystalline substance” wrapped in a piece of
plastic torn from a grocery bag. Guardiola was wearing two
pairs of pants and had made a makeshift pocket by rolling
up one of the pant legs, which is where the cigarette pack
containing the methamphetamine was located. Even if Officer
McAlevy was allowed to testify that Guardiola’s girlfriend
was not searched, that testimony would not have made it more
or less probable that Guardiola was knowingly in possession
of the methamphetamine. Regardless of whether Guardiola’s

- 927 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
girlfriend may have also been in possession of methamphet-
amine herself, there was no evidence presented suggesting
she had the opportunity to place such methamphetamine on
him, which would have been difficult to do, considering the
methamphetamine was found in a cigarette pack located in a
makeshift pocket under Guardiola’s second layer of pants.
Further, Guardiola testified that the cigarette pack con-
taining the methamphetamine belonged to a female friend
who borrowed his car (not his girlfriend). When the friend
“jumped” into his truck and he “jumped out,” the friend said
to “just take this stuff,” so Guardiola said he “grabbed every-
thing she gave me.” Guardiola testified that one of the items
the friend gave him was the cigarette pack, but that he did not
know it contained methamphetamine. As pointed out by the
State, Guardiola “never claimed, during either his trial testi-
mony or during the offer of proof, that the drugs or parapher-
nalia found on him came from [his girlfriend],” and therefore,
whether Officer McAlevy testified about whether the girlfriend
was searched was not relevant. Brief for appellee at 17-18.
We agree.
[13] The exercise of judicial discretion is implicit in deter-
minations of relevancy, and a trial court’s decision regarding
relevancy will not be reversed absent an abuse of discretion.
State v. Wood, 310 Neb. 391, 966 N.W.2d 825 (2021). We
find no abuse of discretion by the district court in sustain-
ing the State’s relevancy objection regarding whether Officer
McAlevy searched Guardiola’s girlfriend.
Sentence
Guardiola was convicted of possession of a controlled
substance, a Class IV felony, which does not carry a mini-
mum sentence but is punishable by up to 2 years’ imprison-
ment and 12 months’ post-release supervision, a $10,000
fine, or both. See Neb. Rev. Stat. § 28-105 (Cum. Supp.
2022). However, Guardiola was subject to a habitual crimi-
nal enhancement under § 29-2221, which, at the time of his

- 928 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
sentencing, increased the sentencing range to a mandatory
minimum of 10 years’ imprisonment and a maximum of 60
years’ imprisonment. But since the time of Guardiola’s sen-
tencing, and while this case has been on appeal, § 29-2221
was amended by 2023 Neb. Laws, L.B. 50, § 7, which became
effective on September 2, 2023. The amended statute estab-
lished lesser penalties for certain habitual criminal offenders.
Guardiola argues, and the State agrees, that the penalty provi-
sion under which Guardiola was sentenced was modified prior
to the final disposition of his case and that as such, under the
Randolph doctrine, he is entitled to receive the benefit of the
lesser sentencing range. See State v. Randolph, 186 Neb. 297,
183 N.W.2d 225 (1971).
[14-16] Under the Randolph doctrine, when the Legislature
amends a criminal statute by mitigating the punishment after
the commission of a prohibited act but before final judg-
ment, the punishment is that provided by the amendatory
act unless the Legislature specifically provided otherwise.
State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017). See,
also, State v. Randolph, supra. The Randolph doctrine does
not apply if the Legislature created a new crime rather than
merely changing the penalty for an existing crime. See State
v. Chacon, supra. For purposes of the Randolph doctrine, if
a defendant appeals his or her sentence, then the sentence is
not a final judgment until the entry of a final mandate. See
State v. Duncan, 291 Neb. 1003, 870 N.W.2d 422 (2015).
After Guardiola was sentenced on July 5, 2023, Guardiola
timely filed an appeal, and thus, his sentence was not a final
judgment for purposes of determining the applicability of the
amended statute.
L.B. 50 added subdivision (1)(c) to § 29-2221, and the sec-
tion now provides:
(1) Whoever has been twice convicted of a crime,
sentenced, and committed to prison . . . for terms of
not less than one year each shall, upon conviction of a
felony committed in this state, be deemed to be a habitual

- 929 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
criminal and shall be punished by imprisonment in a
Department of Correctional Services adult correctional
facility for a mandatory minimum term of ten years and a
maximum term of not more than sixty years, except that:
. . . .
(c) If the felony committed and at least one of the prior
felony convictions do not involve sexual contact, sexual
penetration, the threat to inflict serious bodily injury or
death on another person, the infliction of serious bodily
injury on another person, a deadly or dangerous weapon,
or a firearm, the mandatory minimum term shall be three
years and the maximum term not more than the maximum
term for the felony committed or twenty years, whichever
is greater. For this subdivision (1)(c) to apply, no prior
felony conviction may be a violation described in subdi-
vision (1)(a) of this section.
Section 29-2221(1)(a) applies to violations of
28-303 [first degree murder], 28-304 [second degree
murder], 28-308 [first degree assault], 28-313 [kidnap-
ping], 28-319 [first degree sexual assault], 28-319.01
[first degree sexual assault of a child], 28-502 [first
degree arson], 28-929 [first degree assault on an offi-
cer, emergency responder, state correctional employee,
Department of Health and Human Services employee, or
health care professional], or 28-1222 [using explosives
to commit felony].
In order for Guardiola to qualify for the lesser 3-year man-
datory minimum term and 20-year maximum term permitted
under § 29-2221(1)(c), Guardiola’s present “felony commit-
ted” and “at least one of [his] prior felony convictions” can-
not “involve sexual contact, sexual penetration, the threat to
inflict serious bodily injury or death on another person, the
infliction of serious bodily injury on another person, a deadly
or dangerous weapon, or a firearm.” Also, “no prior felony
conviction may be a violation described in subdivision (1)(a)
of this section.” § 29-2221(1)(c).

- 930 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
In seeking the habitual criminal enhancement in this case,
the State relied upon Guardiola’s prior convictions for third
degree assault on a peace officer, aiding and abetting a rob-
bery, and second degree assault. We can easily determine
that Guardiola’s present felony conviction for possession of
a controlled substance does not involve any of the crimes
listed in § 29-2221(1)(c). We can also determine that none
of Guardiola’s prior convictions submitted by the State were
violations of any of the crimes set forth in § 29-2221(1)(a).
Our remaining examination, therefore, focuses on whether “at
least one of [his] prior felony convictions” did not involve
any of the crimes identified in § 29-2221(1)(c).
We begin by noting that none of Guardiola’s prior felony
convictions involved sexual contact or sexual penetration. We
therefore consider only whether one of his prior convictions
did not involve a “threat to inflict serious bodily injury or
death on another person, the infliction of serious bodily injury
on another person, a deadly or dangerous weapon, or a fire-
arm.” § 29-2221(1)(c).
At 	the 	time 	of 	Guardiola’s 	2000 	conviction 	for 	third
degree assault on a peace officer pursuant to Neb. Rev. Stat.
§ 28-931 (Cum. Supp. 2004), the offense required the follow-
ing elements:
A person commits the offense of assault on an officer
in the third degree if he or she intentionally, knowingly,
or recklessly causes bodily injury to a peace officer or
employee of the Department of Correctional Services
while such officer or employee is engaged in the perform-
ance of his or her official duties.
Although the statute required the infliction of “bodily injury,”
it did not require infliction of “serious bodily injury.” Notably,
a person who “intentionally or knowingly causes serious
bodily injury” to a peace office commits the offense of assault
on an officer in the first degree. See Neb. Rev. Stat. § 28-929
(Cum. Supp. 2022). Therefore, “at least one” of Guardiola’s
prior felony convictions did not involve “sexual contact,

- 931 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE v. GUARDIOLA
Cite as 32 Neb. App. 915
sexual penetration, the threat to inflict serious bodily injury
or death on another person, the infliction of serious bodily
injury on another person, a deadly or dangerous weapon, or
a firearm” under § 29-2221(1)(c). Therefore, Guardiola is eli-
gible to be sentenced under the lesser penalty range provided
in § 29-2221(1)(c).
As pointed out by the State, “[f]or purposes of the Randolph
doctrine, this clearly amounts to a reduction or mitigation of
the penalty,” and the Legislature has “provided no indica-
tion” that the statutory amendment is not retroactive, because
Guardiola’s conviction was not yet final due to his pending
direct appeal. Brief for appellee at 20, 21. We agree that the
requirements of § 29-2221(1)(c) were met in this case, and
therefore, the applicable sentencing range for Guardiola was
a mandatory minimum of 3 years’ and a maximum of 20
years’ imprisonment, rather than a mandatory minimum of 10
years’ and a maximum of 60 years’ imprisonment. Because
the sentencing range that Guardiola was sentenced under was
amended before final disposition of his case, Guardiola is
entitled to retroactive relief to have his habitual criminal
enhancement determined under § 29-2221(1)(c), as amended
in 2023. We therefore vacate Guardiola’s sentence and remand
the cause for resentencing.
CONCLUSION
We 	affirm 	Guardiola’s 	conviction; 	however, 	we 	vacate
Guardiola’s sentence and remand the cause for resentencing.
Affirmed in part, and in part vacated
and remanded for resentencing.