State v. Starks , 308 Neb. 527 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/26/2021 08:08 AM CDT
    - 527 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. STARKS
    Cite as 
    308 Neb. 527
    State of Nebraska, appellee. v.
    Gary L. Starks, appellant.
    ___ N.W.2d ___
    Filed February 26, 2021.   Nos. S-20-585 through S-20-587.
    1. Sentences: Appeal and Error. An appellate court will not disturb a sen-
    tence 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 prejudi-
    cially 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 ques-
    tion 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 dis-
    cretion occurred during sentencing may include the defendant’s (1)
    age, (2) mentality, (3) education and experience, (4) social and cultural
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. STARKS
    Cite as 
    308 Neb. 527
    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 dis-
    cretion 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 judg-
    ment that includes the sentencing judge’s observation of the defendant’s
    demeanor and attitude and of all the facts and circumstances surround-
    ing 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 indetermi-
    nate 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. Affirmed in part, and in part vacated and
    remanded for resentencing.
    Thomas C. Riley, Douglas County Public Defender, and Ann
    O. Petersen for appellant.
    Douglas J. Peterson, Attorney General, and Siobhan E.
    Duffy for appellee.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. STARKS
    Cite as 
    308 Neb. 527
    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 sen-
    tenced 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 felony. 1 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 proba-
    tion 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
    1
    See 
    Neb. Rev. Stat. § 28-416
    (3) (Supp. 2017).
    2
    See 
    Neb. Rev. Stat. § 29-2268
     (Cum. Supp. 2020).
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    308 Nebraska Reports
    STATE v. STARKS
    Cite as 
    308 Neb. 527
    between December 2019 and March 2020, Starks had misap-
    propriated 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 violat-
    ing 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 hear-
    ing, 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 peti-
    tioned the court for “another opportunity out there in society”
    to become rehabilitated and to take care of his family, includ-
    ing his girlfriend and six children.
    The State responded by observing that the PSI report indi-
    cated Starks was a “very high” risk to reoffend, that the value
    3
    See 
    Neb. Rev. Stat. § 28-518
     (Reissue 2016).
    4
    See 
    Neb. Rev. Stat. § 29-2261
     (Cum. Supp. 2020).
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    308 Nebraska Reports
    STATE v. STARKS
    Cite as 
    308 Neb. 527
    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
    [1,2] 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 unten-
    able and unfairly deprive a litigant of a substantial right and a
    just result. 7
    5
    See 
    Neb. Rev. Stat. §§ 24-1106
    (3) and 25-1912 (Cum. Supp. 2020).
    6
    See State v. Clausen, 
    307 Neb. 968
    , 
    951 N.W.2d 764
     (2020). See, also,
    
    Neb. Rev. Stat. § 29-2308
    (1) (Reissue 2016).
    7
    State v. McCulley, 
    305 Neb. 139
    , 
    939 N.W.2d 373
     (2020).
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. STARKS
    Cite as 
    308 Neb. 527
    [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 consid-
    ers the State’s suggestion of error to the extent that the court
    chooses, at its option, to notice plain error. 8
    [4-6] Plain error exists where there is an error, plainly evi-
    dent from the record but not complained of at trial, which prej-
    udicially 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. 9 A sentence that is contrary to
    the court’s statutory authority is an appropriate matter for plain
    error review. 10 Whether a sentence is authorized by statute
    presents a question of law, which we review de novo. 11
    ANALYSIS
    Excessive Sentences Claim
    We begin by considering Starks’ claim that his sentences
    are excessive.
    The first step in analyzing whether sentences are exces-
    sive is to examine the statutory limits on penalties for such
    ­offenses. 12 
    Neb. Rev. Stat. § 28-105
     (Cum. Supp. 2020) sets
    maximum penalties for the felony offenses at issue here. Under
    that statute, a Class IIA felony is punishable by a maximum
    term of 20 years’ imprisonment and a Class IV felony is pun-
    ishable by a maximum term of 2 years’ imprisonment. 13
    8
    See State v. Guzman, 
    305 Neb. 376
    , 
    940 N.W.2d 552
     (2020).
    9
    See Clausen, 
    supra note 6
    .
    10
    State v. Galvan, 
    305 Neb. 513
    , 
    941 N.W.2d 183
     (2020), modified on denial
    of rehearing 
    306 Neb. 498
    , 
    945 N.W.2d 888
    .
    11
    See State v. Kantaras, 
    294 Neb. 960
    , 
    885 N.W.2d 558
     (2016).
    12
    See Clausen, 
    supra note 6
    .
    13
    § 28-105(1).
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    308 Nebraska Reports
    STATE v. STARKS
    Cite as 
    308 Neb. 527
    Starks was sentenced to 8 to 16 years’ imprisonment for
    his Class IIA felony and 2 years’ imprisonment for each of
    his Class IV felonies. Those sentences did not exceed the
    limits of § 28-105(1). Consequently, our analysis of whether
    Starks’ sentences are excessive is limited to a review for abuse
    of discretion. 14
    Before imposing Starks’ sentences, the district court stated
    that it “ha[d] considered everything in the [PSI report]” and
    everything stated at the sentencing hearing. Starks character-
    izes this analysis as inadequate. He contends that it demon-
    strates the district court’s failure to adequately weigh various
    factors that mitigated the severity of his offenses. According to
    Starks, “the district court abused its discretion by tailoring the
    sentence to the crime, not the individual offender.” 15
    [7,8] 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. 16 Relevant factors in that analysis may include
    the defendant’s (1) age, (2) mentality, (3) education and expe-
    rience, (4) social and cultural 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. 17
    [9-11] While these factors should instruct a sentencing
    court, they do not comprise a mathematical formula that
    must be rigidly implemented. 18 Rather, they are among the
    relevant factors that may be considered. 19 A sentence should
    14
    See Clausen, 
    supra note 6
    .
    15
    Brief for appellant at 5.
    16
    See State v. Stack, 
    307 Neb. 773
    , 
    950 N.W.2d 611
     (2020).
    17
    See Clausen, 
    supra note 6
    .
    18
    See State v. Gray, 
    307 Neb. 418
    , 
    949 N.W.2d 320
     (2020).
    19
    See 
    id.
     See, also, Clausen, 
    supra note 6
    .
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    STATE v. STARKS
    Cite as 
    308 Neb. 527
    be tailored and based on factors that “fit the offender and
    not merely the crime.” 20 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 defend­
    ant’s life. 21
    Here, the sources cited in the district court’s order amply
    support the sentences that were imposed. Both the parties’
    testimony and the PSI report provide highly personalized,
    relevant evidence about Starks’ life, character, and previous
    conduct. 22
    And while some of that evidence mitigated the severity of
    Starks’ offenses, other evidence did not. The evidence revealed,
    for example, Starks’ lengthy criminal history, including previ-
    ous convictions for drug use and theft; his troubling signs of
    drug and alcohol abuse and of antisocial behavior; and his
    resistance to rehabilitative efforts in the past, as demonstrated
    by his noncooperation with the terms of probation following
    his possession of a controlled substance conviction. These
    individualized factors led to a sentencing recommendation in
    the PSI report of a term of incarceration based on Starks’ “very
    high risk to re-offend.”
    [12] It is not this court’s function to conduct a de novo
    review and a reweighing of the sentencing factors in the
    record. 23 Instead, it is enough for us to conclude that the district
    court’s reasons for Starks’ sentences are not clearly untenable
    and do not unfairly deprive him of a substantial right and just
    result. 24 We thus cannot say that Starks’ sentences are an abuse
    of discretion. Starks’ lone assigned error is without merit.
    20
    See State v. Gibson, 
    302 Neb. 833
    , 844, 
    925 N.W.2d 678
    , 686 (2019)
    (citing State v. Harrison, 
    255 Neb. 990
    , 
    588 N.W.2d 556
     (1999)).
    21
    Clausen, 
    supra note 6
    .
    22
    See State v. Hurd, 
    307 Neb. 393
    , 
    949 N.W.2d 339
     (2020).
    23
    See State v. Montoya, 
    305 Neb. 581
    , 
    941 N.W.2d 474
     (2020).
    24
    See 
    id.
     See, also, Clausen, 
    supra note 6
    .
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    STATE v. STARKS
    Cite as 
    308 Neb. 527
    Plain Error Analysis
    The State notes in its brief that even though Starks’ sen-
    tences are not excessive, the district court’s formulation of
    those sentences was, in part, erroneous. According to the State,
    the district court erred in rendering determinate sentences for
    each of Starks’ Class IV felonies.
    [13-15] We recently explained the distinction between a
    determinate and indeterminate sentence:
    “A determinate sentence is imposed when the defendant
    is sentenced to a single term of years, such as a sentence
    of 2 years’ imprisonment. . . . In contrast, 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 incarcer-
    ated. In Nebraska, 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.” 25
    Starks’ sentences for the Class IV felonies were determi-
    nate because they each consisted of a single term of 2 years’
    imprisonment. The district court did not list a range of terms or
    minimum and maximum terms. For each Class IV felony, only
    a single period of incarceration—2 years—was ordered.
    Accordingly, the State contends that the district court’s
    formulation of Starks’ sentences was plain error under 
    Neb. Rev. Stat. § 29-2204
     (Reissue 2016) and § 29-2204.02. Under
    § 29-2204, the general rule is that the sentence for most
    felonies—except Class III, Class IIIA, and Class IV felonies—
    should be indeterminate. In complement, § 29-2204.02(4) then
    provides an indeterminacy requirement for some Class III,
    Class IIIA, and Class IV felony sentences:
    For any sentence of imprisonment for a Class III, IIIA,
    or IV felony for an offense committed on or after
    25
    State v. Thompson, 
    301 Neb. 472
    , 483, 
    919 N.W.2d 122
    , 130 (2018)
    (quoting State v. Artis, 
    296 Neb. 172
    , 
    893 N.W.2d 421
     (2017), modified on
    denial of rehearing 
    296 Neb. 606
    , 
    894 N.W.2d 349
    ).
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    STATE v. STARKS
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    308 Neb. 527
    August 30, 2015, imposed consecutively or concurrently
    with . . . a sentence of imprisonment for a Class I, IA,
    IB, IC, ID, II, or IIA felony, the court shall impose an
    indeterminate sentence within the applicable range in sec-
    tion 28-105 that does not include a period of post-release
    supervision, in accordance with the process set forth in
    section 29-2204.
    (Emphasis supplied.)
    For purposes of this indeterminacy requirement, it matters
    not when the underlying offenses occurred in relation to each
    other or that some of the relevant charges were brought via
    different charging documents. Section 29-2204.02(4) is broad
    enough that it theoretically could be read to impose an indeter-
    minacy requirement upon a Class III, Class IIIA, or Class IV
    felony sentence imposed consecutively or concurrently with a
    Class I, IA, IB, IC, ID, II, or IIA felony sentence that is already
    in progress. What matters under § 29-2204.02(4) is that the
    sentences for those offenses are “imposed consecutively or
    concurrently” to each other.
    On our de novo review, we agree with the State. Because
    Starks’ Class IIA and Class IV felony sentences were imposed
    consecutively, § 29-2204.02(4) required that the Class IV
    felony sentences be formulated as “indeterminate sentence[s].”
    Yet, Starks was sentenced to determinate terms of 2 years’
    imprisonment. These sentences violated § 29-2204.02(4).
    [16,17] The failure to impose an indeterminate sentence
    when required to do so by statute constitutes plain error. 26
    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. 27 We therefore find that
    Starks’ three sentences for Class IV felonies were plain error,
    26
    See, Galvan, 
    supra note 10
    ; Guzman, 
    supra note 8
    .
    27
    Guzman, 
    supra note 8
    . See State v. Valdez, 
    305 Neb. 441
    , 
    940 N.W.2d 840
    (2020).
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    and we vacate those sentences and remand the cause to the
    district court for resentencing.
    CONCLUSION
    We vacate in their entirety the sentences imposed by the
    district court for Starks’ three Class IV felonies. We other-
    wise affirm the judgment of the district court and remand the
    cause to the district court for resentencing for Starks’ three
    Class IV felonies.
    Affirmed in part, and in part vacated
    and remanded for resentencing.
    Freudenberg, J., not participating.
    Cassel, J., concurring.
    Because (1) the court today correctly holds that 
    Neb. Rev. Stat. § 29
    ‑2204.02(4) (Reissue 2016) applies to charges
    “brought via different charging documents,” i.e., in separately
    docketed cases; (2) this court has characterized the failure to
    impose an indeterminate sentence when required to do so by
    statute as plain error 1; and (3) it is not unusual for the sentenc-
    ing judgment in a particular case to record only the sentence(s)
    imposed in that case, I make two suggestions. An appellate
    court should be careful to find plain error only where it is
    reasonably certain it has the “whole picture.” A sentencing
    court should craft its judgment in each case with some thought
    regarding how that judgment, viewed in isolation, might appear
    to an appellate court.
    1
    See State v. Guzman, 
    305 Neb. 376
    , 
    940 N.W.2d 552
     (2020). See, also,
    State v. Dill, 
    300 Neb. 344
    , 
    913 N.W.2d 470
     (2018).