State v. King

• Docket Number: A-23-474
• Decision Date: 16 January 2024
• Parties: State of Nebraska, appellee, v. Scott J. King, appellant.
• Court: Nebraska Court of Appeals

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State of Nebraska, appellee,
v.
Scott J. King, appellant.

No. A-23-474

Court of Appeals of Nebraska

January 16, 2024

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: LORI A. MARET, Judge.

Angelica W. McClure, of Kotik & McClure Law, for appellant.

Michael T. Hilgers, Attorney General, and Nathan A. Liss for appellee.

RIEDMANN, BISHOP, and WELCH, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

WELCH, JUDGE.

INTRODUCTION

Scott J. King appeals from his plea-based conviction and sentence for first offense driving during revocation, a Class IV felony. He argues that the district court erred in imposing an excessive sentence and in requiring him to wait 2 years before being eligible for an ignition interlock device. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

King was initially charged with driving during revocation, subsequent offense, a Class IIA felony, and operating a motor vehicle that was not equipped with an ignition interlock device, a Class IV felony. Pursuant to a plea agreement, King pled guilty to an amended information charging him with first offense driving during revocation, a Class IV felony.

The State provided a factual basis which set forth that at 9 p.m. on February 15, 2022, Lincon police officers observed a vehicle traveling at a high rate of speed. After the vehicle pulled

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into a parking lot, an officer ran the license plate and determined that the plate was fictitious. Officers observed the driver, later identified as King, walking away from the area of the vehicle. A check of King's license revealed that his license had been revoked for third offense driving under the influence (DUI) on June 19, 2013, and that King was not eligible to drive until June 19, 2028. At the time of the offense, King was operating the vehicle without an ignition interlock permit or a 24/7 permit.

At the sentencing hearing, defense counsel explained to the court that King had always maintained "that he was trying to get this vehicle fixed so that he could get the interlock put back in it." King informed the court that he was not aware that his interlock permit was revoked and that he "was just going to the gas station to put gas in [the vehicle] to go take it to . . . get the interlock put in it the very next day." The district court stated:

The Court does note that . . . King did receive a generous plea offer in this case and that he had a reduction in the charge. The Court also counted . . . at least five DUI convictions, at least four [driving under suspension (DUS)] convictions, and at least three, counting this one, driving during revocation convictions

At the time of this case, [King] had been consuming alcohol which was on February 15^th, of 2022, although he said in the PSI that he had not consumed alcohol since March of 2021. Also, he says that he recognizes that alcohol has been a problem for him. Although, he says that in the future he may have a drink or two

He picked up more offenses after this offense. He scored very high on the risk to recidivate on the [level of service/case management inventory (LS/CMI)] with a score of 31.... I believe he was on probation or [post-release supervision] during the time of this offense and tested positive for methamphetamine four, possibly five times. He's habitual criminal eligible. And during the time that he was on probation he showed a positive blow on his interlock device at least seven times.

It's also concerning to the Court that he appears to work for a tire service company, which it appears he . . . might even have to as a part of that, drive vehicles, which is something that . . . King should probably never have the privilege of doing again because he can't seem to follow any rules regarding . . . drinking and driving.

The court also found that there were substantial and compelling reasons why King could not effectively and safely be supervised in the community on probation. Further, the court found that imprisonment of King was necessary for the protection of the public because the risk was substantial that during any period of probation he would engage in additional criminal conduct and that a lesser sentence would depreciate the seriousness of his crime and promote disrespect for the law.

The district court sentenced King to 2 years' imprisonment followed by 12 months of post-release supervision. Additionally, the court revoked King's operator's license for 15 years from the date of King's release from imprisonment and provided that after King's operator's license had been revoked for 2 years, King could obtain an ignition interlock permit for the remainder of the revocation period. King was awarded credit for 1 day served and the sentence was ordered to run consecutively to any other sentence that King was currently serving. King has timely appealed to this court and is represented by different appellate counsel.

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ASSIGNMENTS OF ERROR

King assigns that the district court abused its discretion in (1) imposing an excessive sentence and (2) requiring a 2-year period before he was eligible for an ignition interlock device.

STANDARD OF REVIEW

A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court. State v. Alkazahy, 314 Neb. 406, 990 N.W.2d 740 (2023).

It is within the discretion of the trial court whether to impose probation or incarceration, and an appellate court will uphold the court's decision denying probation absent an abuse of discretion. State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013); State v. Montoya, 29 Neb.App. 563, 957 N.W.2d 190 (2021).

ANALYSIS

EXCESSIVE SENTENCE

King's first assignment of error is that the sentence imposed is excessive....