State v. Starks, 022621 NESC, S-20-585
| Opinion Judge | HEAVICAN, C.J. |
| Party Name | State of Nebraska, appellee, v. Gary L. Starks, appellant. |
| Attorney | Thomas C. Riley, Douglas County Public Defender, and Ann 0. Petersen for appellant. Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee. |
| Judge Panel | Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ. Freudenberg, J., not participating. Cassel, J., concurring. |
| Case Date | February 26, 2021 |
| Court | Nebraska Supreme Court |
1.
Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within statutory limits unless the sentence was an abuse of discretion.
2. ___: ___. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.
3. ___: ___. When a defendant challenges a sentence imposed by the district court as excessive and the State believes the sentence to be erroneous but has not cross-appealed in accordance with Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2020) or Neb. Rev. Stat. § 29-2321 (Reissue 2016), an appellate court considers the State's suggestion of error to the extent that the court chooses, at its option, to notice plain error.
4. Appeal and Error. Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.
5. Sentences: Appeal and Error. A sentence that is contrary to the court's statutory authority is an appropriate matter for plain error review.
6. ___: ___. Whether a sentence is authorized by statute presents a question of law, which an appellate court reviews de novo.
7. ___: ___. In reviewing whether an abuse of discretion occurred during sentencing, an appellate court determines whether the sentencing court considered and applied the relevant factors and any applicable legal principles in determining the sentence to be imposed.
8. ___: ___. Relevant factors in determining whether an abuse of discretion occurred during sentencing may include the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural [308 Neb. 528] background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime.
9. ___: ___. While the factors for determining whether an abuse of discretion occurred during sentencing should instruct a sentencing court, they do not comprise a mathematical formula that must be rigidly implemented. Rather, they are among the relevant factors that may be considered.
10. Sentences. A sentence should be tailored and based on factors that fit the offender and not merely the crime.
11. ___. The appropriateness of a sentence is necessarily a subjective judgment that includes the sentencing judge's observation of the defendant's demeanor and attitude and of all the facts and circumstances surrounding the defendant's life.
12. Sentences: Appeal and Error. It is not an appellate court's function to conduct a de novo review and a reweighing of the sentencing factors in the record.
13. Sentences. A determinate sentence is imposed when the defendant is sentenced to a single term of years.
14. ___. When imposing an indeterminate sentence, a sentencing court ordinarily articulates either a minimum term and maximum term or a range of time for which a defendant is to be incarcerated.
15.___ . The fact that the minimum term and maximum term of a sentence are the same does not affect the sentence's status as an indeterminate sentence.
16. Sentences: Appeal and Error. The failure to impose an indeterminate sentence when required to do so by statute constitutes plain error.
17. ___: ___. An appellate court has the power on direct appeal to remand a cause for the imposition of a lawful sentence where an erroneous one has been pronounced.
Appeal from the District Court for Douglas County: James T. Gleason, Judge.
Thomas C. Riley, Douglas County Public Defender, and Ann 0. Petersen for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
[308 Neb. 529] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.
HEAVICAN, C.J.
INTRODUCTION
Based on Gary L. Starks' plea-based convictions for one Class IIA felony and three Class IV felonies, he was sentenced to consecutive terms of 8 to 16 years' imprisonment for the Class IIA felony and 2 years' imprisonment for each Class IV felony. Starks appeals the terms of his total sentence as excessive. The State notes that the determinate sentences for Starks' Class IV felonies may have violated Neb. Rev. Stat. § 29-2204.02 (Reissue 2016).
We affirm the sentence for Starks' Class IIA felony, but vacate the sentences imposed for his Class IV felonies and remand the cause for resentencing.
BACKGROUND
In September 2019, Starks was charged by information with possession of a controlled substance, a Class IV felony1 The charge stemmed from the police's discovery, during a routine traffic stop, of marijuana "joints" and .7 gram of methamphet-amine in Starks' vehicle. Starks pled guilty and, in February 2020, was sentenced to 18 months' probation.
Over the next 2 months, Starks failed to report for at least three scheduled appointments with his probation officer. He also failed to submit for drug tests and to apprise his probation officer of his places of employment. In June 2020, on the basis that Starks had violated his probation, the district court reinstated Starks' Class IV felony charge for possession of a controlled substance.2
While on probation, Starks was also charged with six counts of theft by shoplifting. The informations alleged that [308 Neb. 530] between December 2019 and March 2020, Starks had misappropriated merchandise from various retail stores. Based on the value of the items taken, and on Starks' status as a repeat shoplifter, four shoplifting counts were charged as Class IV felonies and two shoplifting counts were charged as Class IIA felonies.3
Represented by counsel, Starks appeared before the district court for Douglas County in June 2020. Starks informed the court that he had reached a plea agreement with the State.
Pursuant to the plea agreement, Starks pled guilty to violating his probation, a Class IV felony, and to three counts of shoplifting, including two Class IV felonies and one Class IIA felony. In exchange, the State dismissed Starks' remaining charges. The court accepted Starks' guilty pleas and ordered a presentence investigation (PSI).4
A sentencing hearing was held on July 28, 2020. At the hearing, Starks' counsel urged the court to impose a sentence "on the lower range" of what was statutorily authorized. Starks' counsel noted that Starks' offenses were nonviolent, that the PSI report had rated Starks as a low risk for violence and aggression, and that Starks' behavior could be partly explained by the physical abuse he had suffered as a child and by his drug addiction and lack of stable housing as an adult.
Starks himself testified that while growing up, he had learned to steal to survive. As an adult, Starks pawned his stolen wares so that he could afford drugs and temporary housing. He stated that he was sorry for his actions and expressed a desire to "get help for my drug addiction. Using methamphetamine, I've been struggling with that for about, like, six years now." Starks petitioned the court for "another opportunity out there in society" to become rehabilitated and to take care of his family, including his girlfriend and six children.
The State responded by observing that the PSI report indicated Starks was a "very high" risk to reoffend, that the value [308 Neb. 531] of goods he had shoplifted was significant, and that Starks had not consistently expressed remorse for his actions. The State, accordingly, recommended to the court a "straight sentence" of incarceration.
After noting that it had considered the PSI report and the parties' arguments and testimony, the court ordered a sentence of incarceration for each offense. For Starks' Class IIA felony conviction, he was sentenced to 8 to 16 years' imprisonment, and for each Class IV felony conviction, he was sentenced to 2 years' imprisonment. Subject to 190 days' credit for time served, the sentences were ordered to run consecutively from the date of sentencing.
Starks perfected timely appeals, which we moved to our docket.5
ASSIGNMENT OF ERROR
Starks assigns that the district court imposed excessive sentences.
The State contests this assigned error but, in its responsive brief, notes that the determinate sentences for Starks' Class IV felonies may have violated § 29-2204.02. Although the State has not cross-appealed Starks' sentences on this basis, it requests that we notice plain error.
STANDARD OF REVIEW
An appellate court will not disturb a sentence imposed within statutory limits unless the sentence was an abuse of discretion.6 An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.7
[308 Neb. 532] When a defendant challenges a sentence imposed by the district court as excessive and the State believes the sentence to be erroneous but has not cross-appealed in accordance with Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2020) or Neb. Rev. Stat. § 29-2321 (Reissue 2016), an appellate court considers the State's suggestion of error to the extent that the court chooses, at its option, to notice plain error.8
Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it...
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