- Associated Press - Tuesday, December 6, 2016

LINCOLN, Neb. (AP) - A man sentenced to life in prison as a teenager has asked the Nebraska Supreme Court to overturn his new sentence of at least 90 years in prison, saying it still amounts to an unconstitutional life sentence.

Brian Smith, 50, was initially given a life prison term on kidnapping and burglary charges in connection to the 1983 death of 21-year-old Mary Jo Hovendick. Smith was 16 at the time.

But in 2010, the U.S. Supreme Court barred sentencing juveniles to life in prison without parole in non-homicide cases. And two years later, the court determined that all mandatory life sentences without parole for juveniles amounted to cruel and unusual punishment.

A Washington County judge resentenced Smith in February to between 90 years and life in prison for raping, robbing and leaving Hovendick tied up in a car that ended up in the Missouri River, the Lincoln Journal Star (https://bit.ly/2hdKy4l ) reported. The same sentence was given to Smith’s co-defendant, Dale Nollen, for first-degree murder a month earlier.

Smith’s attorney, Jeffrey Pickens, told the state Supreme Court on Monday that Smith’s new sentence amounted to life without parole. He argued that Smith was being denied a meaningful opportunity for release, which is prohibited by the 2010 U.S. Supreme Court case.

“He has, at best, one year to live, and that’s not taking into account the effect of incarceration on life expectancy,” Pickens said.

Pickens said Smith should be released immediately, arguing that he has been rehabilitated and evaluated as low-risk to reoffend.

Pickens said Smith is currently eligible to be on parole when he reaches age 77, but the inconsistency with what method to use in these cases throughout the state means Smith could be eligible for parole at age 62.

Assistant Nebraska Attorney General Melissa Vincent said she does not think Smith’s sentence was excessive, arguing that he had ample opportunity to stop what was going on and knew it was wrong.

The Supreme Court is expected to issue a ruling at a later date.

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Information from: Lincoln Journal Star, https://www.journalstar.com


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