What is a Second Degree Felony in Nebraska?

Nebraska Revised Statutes § 28-105 classifies felonies into ten categories, from Class I, the most severe, to Class IV, the least severe felonies. Class II and Class IIA felony offenses are typically the state’s equivalent of second-degree felonies in other states and are less serious than Class I, IA, IB, IC, and ID felonies (e.g., murder in the first degree, sexual assault of a minor, and kidnapping).

However, Class II and IIA felonies are more serious than Class III (e.g., strangulation with a deadly weapon and criminal use of a firearm), IIIA (e.g., assault in the second degree and sexual assault in the third degree), and IV felonies (e.g., criminal mischief and stalking) and misdemeanors (e.g., disorderly conduct, first offense DUI, and identity theft).

Even though Nebraska does not divide felony offenses into degree categories, certain types of crimes are categorized into degrees based on severity. These crimes, not limited to any felony class, include arson in the second degree, assault in the second degree, criminal trespass in the first degree, forgery in the first degree, etc.

Which Crimes Are Considered Second Degree Felonies in Nebraska?

The crimes that fall under second-degree felony categories (Class II and IIA) in Nebraska include, but are not limited to:

• Assault in the first degree
• Sexual assault in the first degree
• Robbery
• Arson in the first degree
• Human trafficking of an adult
• Arson in the second degree
• Theft of property valued at $5,000 or more
• Burglary
• Manslaughter
• Child abuse
• Felony assault

What is Second Degree Murder and How is it Classified in Nebraska?

According to Nebraska Revised Statutes § 28-304, second-degree murder is causing the death of a person intentionally, but without premeditation. It is classified as a Class IB felony, with a maximum penalty of life imprisonment and a minimum of 20 years imprisonment. In Nebraska, the difference between first-degree murder, second-degree murder, and manslaughter is the state of mind and level of intent. First-degree murder involves the premeditated, deliberate killing of another person with malice aforethought.

Second-degree murder, on the other hand, is intentional and malicious but without premeditation. Manslaughter is causing the death of a person without the malice aforethought and premeditation of a first-degree murder and intentionality without premeditation of a second-degree murder. It is often a "heat of passion" killing resulting from extreme provocation (voluntary manslaughter) or an unintentional death caused by a reckless or negligent act (involuntary manslaughter).

First-degree murder is the most serious murder charge in the state, classified as a Class I felony, and punishable by the death penalty or life imprisonment. Manslaughter is a Class IIA felony, punishable by up to 20 years in prison.

Nebraska Second Degree Felonies Penalties and Punishments

Under Nebraska Revised Statute § 28-105, penalties for second-degree felony offenses include a maximum of 50 years’ imprisonment and a minimum of one year (for Class II felonies) and a maximum of 20 years with no minimum term (for Class IIA felonies). State law does not specify fines for these offenses. Probation, post-release supervision, and parole are possible. However, any person sentenced to imprisonment for a Class II or IIA felony, concurrently or consecutively with imprisonment for a Class III, IIIA, or IV felony, is not eligible for post-release supervision.

Additional penalties may include victim restitution, treatment programs, and community service. Penalties and sentences typically vary based on the circumstances of the crime and prior offenses. For example, multiple offenses and previous convictions can result in the maximum prison term. Whereas a lack of a previous conviction, a minor role in the offense, or the fact that the crime was committed under extreme provocation or duress, or in self-defense can result in a lighter sentence.

The table summarizes the penalties for some Class II and IIA (second-degree) felonies in Nebraska.

Are Second Degree Felony Records Public in Nebraska?

Yes. The Nebraska Public Records Law, codified in Nebraska Revised Statutes (NRS) Section 84.712.01, permits all residents and non-residents of Nebraska to access all records produced and maintained by public agencies in the state. Provisions under this statute also authorizes a court record custodian to restrict access to certain criminal court records if their disclosure would violate other statute or court rule. Per Nebraska Sunshine Laws, the following criminal case-related information are exempt from public access:

• Documents pertaining to the existence of active law enforcement proceedings and investigations
• Confidential records (sealed by statute)
• Expunged or sealed records
• Records that coil aid the identification of of a confidential law enforcement informant
• Abuse victim and juvenile identifiers

Note that a separate statute codified in NRS § 29-3523 applies to criminal history record information. Under this statute, a record may not be open to public view if: no charges were filed in relation to an arrest either by determination of the prosecuting attorney or as a result of a completed diversion program; or the charges against the defendant were dismissed or acquitted. While Nebraska law maintains that criminal history records are public, these records are not public in some states, including California, Michigan, New York, and South Carolina.

How to Access Second Degree Felony Court Records in Nebraska

The court clerk’s office where a second degree felony case was filed is the primary resource for retrieving all related records. Sometimes, a criminal justice agency may have copies. Note that a custodial officer may access a reasonable fee for access or copy of records in accordance with NRS § 84.712 (3b). To obtain records from the clerk of court’s office, visit the agency during business hours.

Visitation schedules and request requirements are usually available on a court’s website. To furnish a search, a person typically needs the defendant’s name and the case number. To simplify, additional information like hearing/filing dates, a defendant’s date of birth, attorney name(s) may be relevant.

For a statewide search, interested persons may use the Justice Search platform provided by the Nebraska Judicial Branch to access records for $15 per search. A reliable alternative is the Public Access to Court Electronic Records system (PACER). Criminal history information maintained by law enforcement are available through the Nebraska State Patrol for a fee of $30.00.

Can Second Degree Felony Charges be Reduced or Dismissed?

In conformance with NRS § 29-119, a second degree felony charge can be reduced or dismissed. This may be achieved through a plea agreement between the prosecuting attorney and the defense attorney, in which the defendant agrees to plead guilty to the pressed charges in order to receive a less severe punishment than the maximum statutory permissible penalty.

Prior to reaching such an agreement with the defense attorney, the prosecuting attorney is statutorily required to consult with the victim, informing them of the terms and reasons for any such plea agreement (NRS § 29-120).

Per NRS § 29-1428 (3), the trial court may dismiss the grand jury’s indictment without further evidence or argument if, after the defendant files a motion, the court determines that the grand jury record lacks probable cause to charge the defendant.

Is it Possible to Expunge or Seal a Second Degree Felony or Murder Record in Nebraska?

It depends. Nebraska statutes do not expressly provide for the expungement of criminal records. Instead of an expungement, records may only be sealed–if the case resulted in an acquittal, dismissal, or a not guilty plea. While conviction records can not be expunged or sealed, convictions that were pardoned may qualify.

If the acquittal or dismissal occurred before December 31, 2016, the case qualifies for automatically. If a case is acquitted or dismissed after this date, the record’s subject must file a motion to have it sealed. N/B: sealing does not destroy the affected records; it only removes them from public access. They can still be seen by the record subject, the prosecutor, and criminal justice agencies, such as the courts and law enforcement.

Only in rare cases can a record be expunged, i.e. if the arrest resulted from law enforcement error. In such a case, the record’s subject must file a petition at the district court in the county where the arrest occurred (NRS § 29-3523 (9)). If the petitioner is able to present clear evidence that establishes that the arrest was as a result of a law enforcement error, the court shall grant the petition and issue an expungement order.

How Long Do Second Degree Felony Records Stay Public in Nebraska?

It depends. Convictions remain in the public domain indefinitely, unless sealed. If the record resulted in an acquittal or dismissal that happened before December 31, 2016, it qualifies for automatic sealing. Note that record retention timelines vary with other states.