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Ditter v. Nebraska Board of Parole11/26/2002
INTRODUCTION
David D. Ditter has filed two appeals from the dismissal of petitions filed in the district court for Lancaster County following decisions of the Nebraska Board of Parole (Board). Pursuant to Ditter's request, the appeals have been consolidated. For the reasons set forth herein, we affirm the district court's dismissal of both actions.
BACKGROUND
Before we set forth the factual background, we think it is helpful to explain how the parole process works. The parole process consists of two steps. The Board must utilize this two-step process when determining whether an offender is entitled to be paroled.
The first step of the process requires a review by the Board. Neb. Rev. Stat. § 83-1,111 (Reissue 1999) states: "Every committed offender shall be interviewed and have his or her record reviewed by two or more members of the Board of Parole or a person designated by the board within sixty days before the expiration of his or her minimum term less any reductions."
The second step of the process under § 83-1,111 establishes when the Board is required to hold a public hearing. The pertinent part of § 83-1,111 states:
If, in the opinion of the reviewers, the review indicates the offender is reasonably likely to be granted parole, the Board of Parole shall schedule a public hearing before a majority of its members. . . . If, in the opinion of the reviewers, the review indicates the offender should be denied parole, the offender may request an additional review by a majority of the members of the board.
As a part of the review process, the Board meets with such committed offender and counsels him or her concerning his or her progress and prospect for future parole, which counsel includes a review of the circumstances of the offense; the presentence investigation report; the committed offender's previous social history and criminal record; his or her conduct, employment, and attitude during commitment; and the reports of such physical and mental examinations as have been made. Neb. Rev. Stat. § 83-192(1)(f) (Reissue 1999).
Although an offender has an absolute right to a review, it does not have to be conducted annually. Section 83-192 provides how often the Board must provide this review. With regard to the review for committed offenders serving life sentences, § 83-192(1)(f)(v) provides:
If a committed offender is serving a minimum life sentence, his or her record shall be reviewed during the first year of incarceration and every ten years thereafter until such time as the sentence is commuted. If such sentence is commuted, the committed offender's record shall be reviewed annually when he or she is within five years of his or her earliest parole eligibility date.
For an offender serving a life sentence, it would be necessary to first have the sentence commuted before the offender would be eligible for parole. Only the Governor, Attorney General, and Secretary of State, sitting as a board, have power to grant commutations under Neb. Const. art. IV, § 13, after which time the Board has the power to determine the time of release on parole of committed offenders eligible for such release, see § 83-192(1)(f)(v). A committed offender has no right or entitlement to commutation of his sentence. See Otey v. Hopkins, 5 F.3d 1125 (8th Cir. 1993).
Ditter is an inmate at the Nebraska State Penitentiary serving a life sentence for first degree murder. At the review of Ditter's case in November 1998, the Board determined that it would not review Ditter's case again until November 2004. Despite the Board's determination, Ditter again requested an annual review of his case in O
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