State v. Sikes , 286 Neb. 38 ( 2013 )

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38 286 NEBRASKA REPORTS
As such, the guaranty was complete, and by its terms, it was
enforceable against Sears as to all amounts that the court found
owing from Hungry’s to Braunger Foods.
CONCLUSION
We conclude that the Court of Appeals erred when it deter­
mined that the guaranty was not enforceable against Sears and
when it therefore affirmed the district court’s order. We reverse
the decision of the Court of Appeals and remand the cause to
the Court of Appeals with directions to reverse the decision of
the district court as it pertains to Sears’ guaranty and to remand
the cause to the district court with directions to enter judgment
against Sears in accordance with this opinion.
R eversed and remanded with directions.
Miller-Lerman, J., participating on briefs.
State of Nebraska, appellee, v.
Gary L. Sikes, appellant.
___ N.W.2d ___
Filed June 14, 2013. No. S-12-399.
1. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre­
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
2. Sentences: Appeal and Error. An appellate court will not disturb a sen­
tence imposed within the statutory limits absent an abuse of discretion by the
trial court.
3. Statutes: Appeal and Error. Statutory language is to be given its plain and ordi­
nary meaning, and an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and unambiguous.
4. Sentences. In imposing a sentence, the sentencing court is not limited to any
mathematically applied set of factors.
5. ____. The appropriateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all the facts surrounding the defendant’s life.
6. ____. A sentence at the maximum limit is still within that limit—it is only if
the sentence exceeds the statutory limit that it becomes “excessive” as a matter
of law.
Appeal from the District Court for Hall County: William T.
Wright, Judge. Affirmed.
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STATE v. SIKES 39
Cite as 286 Neb. 38Vicky A. Kenney and Matthew Works, Deputy Hall County
Public Defenders, for appellant.
Jon Bruning, Attorney General, George R. Love, and Dain J.
Johnson, Senior Certified Law Student, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Gary L. Sikes pled guilty to driving under the influence,
third offense, a Class W misdemeanor. The district court for
Hall County accepted Sikes’ plea and found him guilty. It sen­
tenced him to 365 days’ imprisonment with 1 day’s credit for
time served, fined him $600, and revoked his driver’s license
for a period of 15 years. The district court further ordered that
after a 45-day no-driving period, if Sikes chooses to drive, he
must obtain an ignition interlock permit, install an interlock
device on each motor vehicle he owns or operates, and utilize
a continuous alcohol monitoring (CAM) device for the entire
15-year revocation. Sikes appeals, claiming various errors with
respect to the sentence and sanctions imposed. We determine
that no error occurred, and we affirm.
STATEMENT OF FACTS
Sikes was originally charged in the district court with
fourth-offense driving under the influence, a Class IIIA felony.
Pursuant to a plea agreement, Sikes pled guilty to the amended
information charging him with third-offense driving under the
influence, a Class W misdemeanor. The district court accepted
his plea and found him guilty. The district court ordered a pre­
sentence investigation.
The factual basis for the plea indicates that on July 27, 2011,
Sikes was pulled over in Grand Island, Hall County, Nebraska,
for a driving infraction. Upon making contact with Sikes, the
law enforcement officer detected impairment. A sobriety test
was conducted by a certified drug recognition expert who
determined that Sikes was driving under the influence of
marijuana. A crime laboratory later tested a sample of Sikes’
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urine and detected marijuana. Sikes stipulated that before
this incident, he had two prior convictions for driving under
the influence.
Sikes appeared for sentencing on April 11, 2012. The
record shows that defense counsel urged the court to consider
probation, but the district court rejected this proposal. In
explaining its decision not to place Sikes on probation, the
district court emphasized that although Sikes was pleading
guilty to the crime of third-offense driving under the influ­
ence, the presentence investigation report indicated that it
was actually Sikes’ seventh offense of either driving while
intoxicated or driving while under the influence. The court
further noted that within the last 5 years, between December
2006 and July 2011, Sikes had been convicted of the offense
of driving under the influence of either alcohol or another
substance four times. The court addressed Sikes at sentencing
and stated that
not only did you become intoxicated or use, you chose to
drive at the same time. The element of the offense that
creates the risk and the circumstances that you are in is
that you chose to drive. From 2006 to present date, you
chose to drive five times while under the influence of
either alcohol or some other substance.
Quite frankly, I think your counsel did an excellent job
for you in getting this pled down from a 4th [offense] to
a 3rd, because rather than looking at jail time, you would
be looking at prison. You are a significant danger to the
people of Grand Island and the people of Hall County.
You are a significant danger to the people of this state
because you repeatedly chose to drive while under the
influence. I can’t, in good conscience, place you on
probation simply to allow you to go through the same
treatment you’ve been through before and put the rest of
us at risk.
Based upon the Court’s review of the record in this
case, the presentence investigation prepared, and the
foregoing factors, I have determined you’re not a candi­
date for probation because there is a substantial risk that
you will continue your criminal conduct, and you are in
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Cite as 286 Neb. 38need of correctional treatment best provided by a correc­
tional facility, and any less sentence would depreciate the
seriousness of your crime, which is significant, but also
promote disrespect for the law.
Quite frankly, sir, you’ve got an attitude that doesn’t
stop. You’ve got an attitude that society is mistreating
you because it sanctions you when you become under the
influence of something and then drive. It’s an attitude I’ll
have to change.
As noted above, the district court sentenced Sikes to 365
days’ imprisonment with 1 day’s credit for time served, fined
him $600, and revoked his license for 15 years. The district
court stated that after a 45-day period of no driving, if Sikes
chooses to drive, he must obtain and install an ignition inter­
lock device on each motor vehicle he owns or operates and
that he must retain a permit and the ignition interlock device
for the entire 15-year period. At the hearing, the district court
further stated that Sikes “must, during any period of time
that [he is] driving following [his] release from confine­
ment, use a [CAM] device for the entire 15 year period of
[his] revocation.”
In its written order, filed April 12, 2012, the district court
ordered the same terms as orally pronounced, except that in
connection with the use of the CAM device, the written order
added the additional phrase that Sikes must “abstain from
alcohol use” for the period of interlock revocation.
Sikes appeals.
ASSIGNMENTS OF ERROR
On appeal, restated, Sikes claims that (1) it was error for the
district court to order him to use a CAM device, because the
monitoring of alcohol use is not related to the facts underlying
his current conviction, namely, having driven under the influ­
ence of marijuana; (2) it was error for the district court to state
in its written order that Sikes must abstain from alcohol use
during the interlock revocation period because in its oral pro­
nouncement the court did not include abstention from alcohol
use as a sanction; and (3) the sentence and sanctions imposed
were excessive.
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STANDARDS OF REVIEW
[1] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below. State v. Medina-Liborio, 285 Neb. 626,
829 N.W.2d 96 (2013).
[2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Watt, 285 Neb. 647, ___ N.W.2d
___ (2013).
ANALYSIS
Sikes assigns three errors. Each of the assigned errors is
governed by the Nebraska Rules of the Road, Neb. Rev.
Stat. §§ 60-601 through 60-6,381 (Reissue 2010). Sikes seeks
a ruling analyzing the propriety of the sentence and sanc­
tions imposed. We find his appeal proper and consistent with
§ 60-6,197.03(4) (providing that order “shall be administered
upon . . . final judgment of any appeal”). Compare State v.
Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008), and State v.
Torres, 254 Neb. 91, 574 N.W.2d 153 (1998) (stating that con­
stitutional challenges to potential penalties not ripe).
Ordering the Use of a CAM
Device Was Not Error.
In his first assignment of error, Sikes asserts that in the
instant case, he was convicted of driving under the influence
of marijuana, and that since a CAM device is used to detect
the presence of alcohol in a person’s system, see § 60-614.01,
the order directing him to utilize a CAM device is unrelated
to the offense for which he was convicted. Sikes misconstrues
the law, and there is no merit to this assignment of error
as presented.
In this case, Sikes was convicted of his third offense of
driving under the influence. Section 60-6,196(1) provides that
“[i]t shall be unlawful for any person to operate or be in the
actual physical control of any motor vehicle . . . (a) [w]hile
under the influence of alcoholic liquor or of any drug.” Section
60-6,196(2) provides that “[a]ny person who operates or is in
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Cite as 286 Neb. 38the actual physical control of any motor vehicle while in a
condition described in subsection (1) of this section shall be
guilty of a crime and upon conviction punished as provided in
sections 60-6,197.02 to 60-6,197.08.”
Sikes is guilty of violating § 60-6,196(1)(a), and therefore,
he is subject to the sanctions provided for violating § 60-6,196.
A person convicted of his or her second or subsequent viola­
tion of § 60-6,196 is subject to the sanction of using a CAM
device. See § 60-6,197.01(2). This conviction was deemed
Sikes’ third conviction for driving under the influence.
In this case, Sikes bears the status of an individual convicted
of § 60-6,196(1)(a), third offense. He is subject to all statuto­
rily authorized restrictions therefor. The sanction of using a
CAM device is statutorily authorized for a person convicted
of third-offense driving under the influence. Accordingly, the
district court did not err when it ordered that Sikes use a
CAM device.
Ordering the Abstention From Alcohol Use
in Connection With the Use of a CAM
Device for the Interlock Period of
Revocation Was Not Error.
In his second assignment of error, Sikes claims that because
the oral pronouncement did not specify abstention from alco­
hol use, he should not have been ordered to abstain from
alcohol use in connection with his use of a CAM device
during the interlock revocation period, as the written order
provided. Because abstention from alcohol use in connection
with the use of a CAM device during the interlock revocation
period is required by statute in this case, we find no merit to
this claim.
The State has provided a helpful summary of the applicable
law as follows:
If the sentencing court elects to provide the defendant[s]
with the interlock option, the court can further require
that they are outfitted with a CAM device and refrain
from the use of alcohol for a period of time not to exceed
the maximum term of license revocation ordered by the
court. Neb. Rev. Stat. § 60-6,197.01(2). The district court
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in the present instance elected to give Sikes the option to
acquire interlock and CAM devices if Sikes chooses to
continue driving.
Brief for appellee at 9. Given the law, the State urges us to
reject Sikes’ second assignment of error. We agree with the
State that this assignment of error is without merit.
To understand the basis for our rejection of Sikes’ claim, we
must review numerous statutes. Pursuant to § 60-6,197.03(4),
a person convicted of driving under the influence who has
had two prior convictions is guilty of a Class W misdemeanor
and subject to the penalties and sanctions therefor. Section
60-6,197.03(4) provides that the court shall revoke the con­
victed person’s operator’s license for 15 years and “issue an
order pursuant to section 60-6,197.01.”
In order for the convicted person to operate a motor vehicle
during revocation, pursuant to § 60-6,197.01(1)(b), the court
shall issue an order that a person convicted of a second or
subsequent violation of driving under the influence obtain
an ignition interlock permit and install an ignition interlock
device on each vehicle the person owns or operates. Pursuant
to § 60-6,197.01(2), if a person is convicted of his or her sec­
ond or subsequent violation of driving under the influence, in
addition to the interlock device, the court “may” order the use
of a CAM device. Under § 60-6,197.01(2), however, “[a CAM]
device shall not be ordered for a person convicted of a second
or subsequent violation unless the installation of an ignition
interlock device is also required.”
Reading § 60-6,197.01(1)(b) and (2) together, the statute
provides that in order for a person convicted of his or her
second or subsequent offense of driving under the influence
to operate a motor vehicle during revocation, the court shall
require an ignition interlock device and may order the use of a
CAM device. But if a CAM device is ordered, the court shall
also order the use of an ignition interlock device.
[3] With respect to the conditions associated with the
use of a CAM device, Sikes contends that even though the
use of a CAM device has been ordered, a convicted person
need not abstain from alcohol use. We reject this asser­
tion. Section 60-6,211.05 provides for the statutorily required
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Cite as 286 Neb. 38conditions associated with the use of a CAM device. Section
60-6,211.05(2) provides that where the court has ordered the
use of a CAM device, the terms of the use of the CAM device
shall be the “use of a [CAM] device and abstention from alco­
hol use at all times.” We have stated that statutory language is
to be given its plain and ordinary meaning, and an appellate
court will not resort to interpretation to ascertain the meaning
of statutory words which are plain, direct, and unambiguous.
Blaser v. County of Madison, 285 Neb. 290, 826 N.W.2d 554(2013). Under the plain language of § 60-6,211.05(2), if the
court orders the use of a CAM device, the convicted per­
son using the CAM device must abstain from alcohol use at
all times.
In connection with his assignment of error, Sikes urges us to
strike the additional matter in the written order, such that the
order to abstain from alcohol use while using a CAM device
would be eliminated. Sikes refers us to State v. Schnabel, 260
Neb. 618, 618 N.W.2d 699 (2000), and argues that an oral
sentencing pronouncement controls over a subsequent written
order. Given the facts in this case, the principles in Schnabel
do not control.
We acknowledge that there is some difference between the
oral pronouncement and the language of the written order
regarding the utilization of the CAM device. At the hearing,
the district court orally stated that Sikes “must, during any
period of time that [he is] driving following [his] release from
confinement, use a [CAM] device for the entire 15 year period
of [his] revocation.” In its written order, the district court
included the additional phrase, which states that in connection
with the use of the CAM device, Sikes must “abstain from
alcohol use” for the period of interlock revocation.
Although the oral pronouncement is not precisely the same
as the written order, the oral pronouncement was sufficient. It
was not a mispronouncement in need of correction. Compare
State v. Clark, 278 Neb. 557, 772 N.W.2d 559 (2009) (stat­
ing erroneous oral pronouncement of sentence gave defendant
more credit for time served than reflected by record, and thus
district court had authority to correct this error in its writ­
ten sentencing order). As explained above, the ordering of
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the use of a CAM device is by operation of law ordering the
convicted person to utilize the CAM device at all times and
abstain from alcohol use at all times. See § 60-6,211.05(2).
Thus, when the district court orally stated that Sikes must
use a CAM device, pursuant to the statutes, it was effectively
ordering Sikes to use the CAM device and abstain from alco­
hol use at all times.
As a general matter, it would be preferable for a sentencing
court to orally state that the convicted person was to use the
CAM device at all times during the period of revocation and
that the convicted person must, as a consequence of using the
CAM device, also abstain from alcohol use at all times; how­
ever, failure to do so does not invalidate the oral pronounce­
ment or result in any meaningful discrepancy with the written
order. The statutes control and amplify the sanctions; and the
statutes require that where utilization of the CAM device has
been ordered, the convicted person must abstain from the use
of alcohol at all times. In sum, we determine that the oral
pronouncement was sufficient and not meaningfully different
from the written order and that the written order to abstain
from alcohol use was not erroneous. We find no merit to Sikes’
second assignment of error.
The Sentence and Sanctions Were
Not an Abuse of Discretion.
For his third assignment of error, Sikes claims that the dis­
trict court abused its discretion because it imposed an exces­
sive sentence. We find no merit to this assignment of error.
[4-6] In imposing a sentence, the sentencing court is not
limited to any mathematically applied set of factors. State v.
Ramirez, 284 Neb. 697, 823 N.W.2d 193 (2012). The appro­
priateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge’s observation of the defend­
ant’s demeanor and attitude and all the facts surrounding
the defend­ nt’s life. Id. An appellate court will not disturb a
a
sentence imposed within the statutory limits absent an abuse
of discretion by the trial court. State v. Watt, 285 Neb. 647,
___ N.W.2d ___ (2013). A sentence at the maximum limit is
still within that limit—it is only if the sentence exceeds the
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Cite as 286 Neb. 38statutory limit that it becomes “excessive” as a matter of law.
State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
At the time Sikes was convicted, Neb. Rev. Stat. § 28-106(Reissue 2008) provided that driving under the influence, third
offense, was a Class W misdemeanor punishable as follows:
“[m]aximum — one year imprisonment and six hundred dol­
lars fine[;] [m]andatory minimum — ninety days imprisonment
and six hundred dollars fine.” In addition, § 60-6,197.03(4)
requires that a person convicted of driving under the influence,
third offense, shall have his or her license revoked for 15 years.
As discussed above, in order for the convicted person to drive
during revocation, § 60-6,197.01(1)(b) provides that the court
order the convicted person to obtain an ignition interlock per­
mit and install an ignition interlock device on all the vehicles
the person owns or operates. For a defendant convicted of
driving under the influence second or subsequent offense, who
chooses to drive, § 60-6,197.01(2) provides that the court may
order the convicted person to utilize a CAM device and abstain
from the use of alcohol. If the court orders a CAM device, it
must also order the ignition interlock device.
Sikes was sentenced to 365 days’ imprisonment with 1 day’s
credit for time served, fined $600, and had his license revoked
for a period of 15 years. After a 45-day period of no driving
following his release from jail, Sikes was given the option to
drive during revocation by obtaining and installing an ignition
interlock device. Should he choose to drive, Sikes was also
ordered to utilize a CAM device and abstain from alcohol use
for the 15-year period. The sentence and sanctions imposed
were within the statutory limits.
The record shows that a presentence investigation was
ordered. It reflects that Sikes has a criminal record, including a
history of driving under the influence. The district court prop­
erly considered Sikes’ prior driving convictions in imposing
the sentence and sanctions. See State v. Ramirez, supra.
The presentence investigation report indicates that Sikes is
53 years old, has completed high school, and was unemployed.
Sikes’ criminal history includes convictions for numerous traf­
fic violations, contributing to the delinquency of a minor,
flight to avoid arrest, resisting arrest, third-degree assault,
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driving during suspension (four times), disturbing the peace
(two times), attempted obstruction of a peace officer, third-
degree domestic assault, violation of a protection order, theft
by unlawful taking (two times), and first degree criminal tres­
pass. The presentence investigation report also indicates that
prior to the conviction at issue in this case, Sikes had been
convicted of driving while intoxicated twice and driving under
the influence four times. Because of his convictions, Sikes has
been on probation eight times, which probation was revoked on
one occasion.
The presentence investigation report further shows that,
overall, Sikes falls into the “High Risk” range using the
“Level of Service/Case Management Inventory,” which is a
risk/need assessment tool specifically designed to determine
the degree of risk that the defendant presents to the commu­
nity. Sikes scored in the “High Risk” range for the “Alcohol/
Drug Problem” category on the inventory, and the report
states that Sikes “admits he has had a problem with his use of
alcohol including several arrests for [driving under the influ­
ence].” The presentence investigation report also shows that
the “Simple Screening Instrument,” which is an assessment
tool used to determine the presence of a current substance
abuse problem and identify the need for further assessment,
was administered by a probation officer. The results indi­
cate that Sikes has a moderate to high risk for alcohol or
drug abuse.
We further note that at the hearing, the district court empha­
sized the fact that in the last 5 years, “[f]rom 2006 to present
date, [Sikes] chose to drive five times while under the influ­
ence of either alcohol or some other substance.” In view of
the facts of the case and Sikes’ record, we determine that the
sentence and sanctions imposed are appropriate and that the
district court did not abuse its discretion.
CONCLUSION
We determine that the district court did not err when it
ordered that, should Sikes choose to drive, he utilize a CAM
device and abstain from alcohol use for the period of the
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HOLDSWORTH v. GREENWOOD FARMERS CO-OP 49
Cite as 286 Neb. 49interlock revocation. The sentence and sanctions imposed were
not an abuse of discretion. Therefore, we affirm.
Affirmed.
Bruce Holdsworth, appellee, v. Greenwood Farmers
Cooperative and Cooperative Mutual Insurance
Company, Inc., appellants.
___ N.W.2d ___
Filed June 14, 2013. No. S-12-403.
1. Workers’ Compensation: Appeal and Error. An appellate court is obligated
in workers’ compensation cases to make its own determinations as to questions
of law.
2. Jurisdiction. A jurisdictional question which does not involve a factual dispute is
determined by an appellate court as a matter of law.
3. Appeal and Error. The meaning of a statute is a question of law.
4. Jurisdiction. Jurisdiction does not relate to the right of the parties as between
each other, but to the power of the court.
5. ____. Parties cannot confer subject matter jurisdiction upon a judicial tribunal by
either acquiescence or consent, nor may subject matter jurisdiction be created by
waiver, estoppel, consent, or conduct of the parties.
6. ____. The jurisdiction of courts is a public matter that cannot be affected by a
private agreement, and the jurisdiction of a court can neither be acquired nor lost
as a result of an agreement of the parties.
7. Statutes: Appeal and Error. An appellate court will not resort to interpreta­
tion to ascertain the meaning of statutory words which are plain, direct, and
unambiguous.
8. Workers’ Compensation: Penalties and Forfeitures: Attorney Fees. The
w
­ aiting-time penalty and attorney fees for waiting-time proceedings provided
under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2012) are rights under the Nebraska
Workers’ Compensation Act.
9. Workers’ Compensation: Penalties and Forfeitures: Waiver. The settlement
procedures in Neb. Rev. Stat. § 48-139(3) (Reissue 2010) require a worker to
waive all rights under the Nebraska Workers’ Compensation Act, including both
the right to penalties under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2012) and
the right to ask a judge of the compensation court to decide the parties’ rights
and obligations.
10. Statutes: Appeal and Error. An appellate court will not read into a statute a
meaning that is not there.
11. Statutes. A court must attempt to give effect to all parts of a statute, and if it
can be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.