State v. Janis , 32 Neb. Ct. App. 49 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE V. JANIS
Cite as 32 Neb. App. 49State of Nebraska, appellee, v.
Clarence Janis, appellant.
___ N.W.2d ___
Filed June 13, 2023. No. A-22-842.
1. 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.
2. Appeal and Error. Plain error may be found on appeal when an error,
plainly evident from the record, prejudicially affects a litigant’s substan-
tial right and, if uncorrected, would result in damage to the integrity,
reputation, and fairness of the judicial process.
3. Sentences: Appeal and Error. A sentence that is contrary to the court’s
statutory authority is an appropriate matter for plain error review.
4. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (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.
5. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
6. ____. The court may fulfill the requirement of Neb. Rev. Stat.
§ 29-2204.02(3) (Reissue 2016) to state its reasoning on the record by a
combination of the sentencing hearing and sentencing order.
7. Sentences: Motor Vehicles: Licenses and Permits: Revocation:
Appeal and Error. When revocation of an operator’s license for a
specified period of time is mandated by statute and is not discretionary
to the sentencing court, an appellate court may modify a sentencing
order to include the statutory revocation period when there are no other
errors in sentencing which require remand.
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STATE V. JANIS
Cite as 32 Neb. App. 49Appeal from the District Court for Sheridan County: Travis
P. O’Gorman, Judge. Affirmed as modified.
Andrew M. Pope, of Crites, Shaffer, Connealy, Watson,
Patras & Watson, P.C., L.L.O., for appellant.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Moore, Bishop, and Welch, Judges.
Bishop, Judge.
INTRODUCTION
Clarence Janis pled no contest to one count of operating a
motor vehicle to avoid arrest in a willful reckless manner. The
Sheridan County District Court sentenced him to 18 months’
imprisonment. Janis claims the district court erred in imposing
an excessive sentence; the State claims that the court’s failure
to revoke Janis’ driver’s license was plain error. We agree there
was plain error in sentencing and affirm as modified.
BACKGROUND
The record on appeal does not include a bill of exceptions
for the plea hearing. We therefore look to the transcript and
presentence investigation report for the factual background
underlying Janis’ charges.
On August 5, 2022, a law enforcement officer observed an
individual operating a motor vehicle “at a high rate of speed.”
Multiple police cruisers pursued the vehicle with their lights
and sirens activated. The vehicle was operating at speeds of
over 100 miles per hour, weaving in and out of its lane of
travel, and failing to yield to law enforcement. As the pursuit
continued, the vehicle passed two other motorists on the high-
way who were traveling in the opposite direction. The motor-
ists had to abruptly pull into a ditch to avoid being struck
by the vehicle. Law enforcement continued the pursuit for
roughly 15 miles, until the driver of the vehicle turned onto
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STATE V. JANIS
Cite as 32 Neb. App. 49a dead-end road. The driver was identified as Janis; he submit-
ted to a preliminary breath test, the results of which showed he
had a blood alcohol content of .165. Two young children were
found in the vehicle, as well as their mother.
On August 8, 2022, the State filed a criminal complaint
in the county court for Sheridan County charging Janis with
three counts: count I, operating a motor vehicle to avoid
arrest in a willful reckless manner, a Class IV felony, pursu-
ant to Neb. Rev. Stat. § 28-905(1) (Reissue 2016); count II,
willful reckless driving, a Class III misdemeanor, pursuant
to Neb. Rev. Stat. § 60-6,214 (Reissue 2021); and count III,
child abuse, a Class IIIA felony, pursuant to Neb. Rev. Stat.
§ 28-707(1) (Cum. Supp. 2022). According to the county
court’s September 1 order, the State dismissed the willful
reckless driving charge, but the other two counts were bound
over to the district court, where an information was filed on
September 9. The information contained only the charge that
had been set forth in count I. According to the district court’s
September 16 journal entry, Janis entered a plea of no contest
to that charge as a result of a plea agreement. The court found
beyond a reasonable doubt that the factual basis supported
Janis’ plea of no contest, and Janis was found guilty of operat-
ing a motor vehicle to avoid arrest in a willful reckless man-
ner. The court ordered a presentence investigation report and
scheduled sentencing.
After a hearing held on November 8, 2022, the district court
sentenced Janis to 18 months’ imprisonment, with credit for 95
days already served.
Janis appeals.
ASSIGNMENT OF ERROR
Janis assigns as error that the district court abused its discre-
tion by imposing an excessive sentence.
STANDARD OF REVIEW
[1] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion
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STATE V. JANIS
Cite as 32 Neb. App. 49by the trial court. State v. Lierman, 305 Neb. 289, 940 N.W.2d
529 (2020).
[2] An appellate court always reserves the right to note
plain error that was not complained of at trial or on appeal.
Plain error may be found on appeal when an error, plainly
evident from the record, prejudicially affects a litigant’s sub-
stantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process. State
v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).
[3] A sentence that is contrary to the court’s statutory author-
ity is an appropriate matter for plain error review. Id.ANALYSIS
Excessive Sentence
Janis claims that the district court abused its discretion when
it imposed an excessive sentence. Janis was convicted of oper-
ating a motor vehicle to avoid arrest in a willful reckless man-
ner, a Class IV felony, which is punishable by up to 2 years’
imprisonment and 12 months of post-release supervision, a
$10,000 fine, or both. See Neb. Rev. Stat. § 28-105 (Cum.
Supp. 2022). There is no minimum sentence or post-release
supervision requirement. See id. The court sentenced Janis
to 18 months’ imprisonment, which was within the statutory
range. As such, we review the court’s sentencing determination
for an abuse of discretion.
[4,5] When imposing a sentence, a sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) moti-
vation 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. State v. Lierman, supra. 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 and circumstances surrounding
the defendant’s life. Id.- 53 -
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STATE V. JANIS
Cite as 32 Neb. App. 49Janis was 40 years old at the time of sentencing. According
to the presentence investigation report, Janis was single and
had three children. He completed 8th grade and was unem-
ployed at the time of his arrest. Janis had limited employment
history due to his struggle with substance abuse.
Janis’ criminal history includes convictions for the follow-
ing: “Minor Possess/Sell/Dispense/Consume Alcohol” in 2002
($200 fine); “Driving While Under The Influence Of Alcohol”
in 2004 (bench warrant issued); “Interference With A Police
Officer” in 2004 (bench warrant issued); “No Valid Driver’s
License” in 2005 (notice of suspension sent “to the DMV”);
“DUI - 1st Offense,” “Speeding 11-15 MPH Municipal,” “No
Operator’s License,” and “No Proof Of Insurance” in 2007
($500 fine, license revoked for 6 months, 7 days’ jail, and $75
fine); “Simple Assault” in 2012 (7 months’ jail and 12 months’
supervised release); “Drive During Revocation/Impound” in
2016 (7 days’ jail, license revoked for 1 year); and “Drive
Under Suspension/Before Reinstated - State” in 2021 (7
days’ jail).
The probation officer conducted a “Level of Service Case
Management Inventory” as part of the presentence investiga-
tion. Janis was assessed as a “Very High” risk to reoffend. He
scored in the “Medium” risk range in the criminogenic risk
factor domains for criminal history, procriminal attitude, and
antisocial pattern. He scored in the “High” risk range in the
domains for family/marital and leisure/recreation. He scored
in the “Very High” risk range in the domains for education/
employment, companions, and alcohol/drug problems. The
probation officer also conducted a “Nebraska Driver’s Risk
Inventory-II.” Janis was assessed to be a low risk in the truth-
fulness category and maximum risk in the categories for alco-
hol, driver risk, drugs, and stress coping.
Janis has an extensive history of drug and alcohol use.
He also admitted to previously using various drugs, such as
marijuana, cocaine, and methamphetamine. Janis claimed that
he was not consuming alcohol at the time of the presentence
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Cite as 32 Neb. App. 49investigation interview and that he intended to abstain from
consuming alcohol for the rest of his life.
At the sentencing hearing, Janis’ counsel stressed that
although Janis had a criminal history, it did not include any
felony convictions. Counsel requested that the district court
sentence Janis to “time-served as well as a fine.” Counsel
alternatively requested that the court sentence Janis to a term
of probation. Janis personally informed the court that he was
“sorry for what [he] did, and, hopefully, [he could] move on
with [his] life and put this behind [him].”
The district court stated that it “did consider the remarks
of counsel” and “all the statutory factors.” The court noted
that Janis had a “long criminal record” and that his conduct in
this case was “very concerning.” It pointed out that Janis was
driving at “[s]peeds in excess of 100” while “two times over
the legal limit [of] blood alcohol” with “two kids in the car.”
The court further observed that “two other motorists . . . had to
take evasive action to prevent an accident.” The court said that
Janis was “lucky . . . all this is is a Class IV felony” because
the circumstances “could be a lot worse with some fatalities.”
Given this conduct, the court concluded that “anything less
than a period of incarceration would depreciate the serious-
ness of the offense.” It then sentenced Janis as previously set
forth. That same day, the court entered a written sentencing
order consistent with its earlier oral pronouncement that spe-
cifically stated there were “substantial and compelling reasons
why [Janis] cannot effectively and safely be supervised in
the community.”
In his brief on appeal, Janis refers to Neb. Rev. Stat.
§ 29-2204.02 (Reissue 2016), which requires the imposition
of probation for a Class IV felony unless certain exceptions
apply. As applicable here, under § 29-2204.02(2)(c) proba-
tion does not have to be imposed if “[t]here are substantial
and compelling reasons why the defendant cannot effectively
and safely be supervised in the community, including, but
not limited to, the criteria in subsections (2) [factors which
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STATE V. JANIS
Cite as 32 Neb. App. 49weigh against probation] and (3) [factors which favor proba-
tion] of section 29-2260.” Further, under § 29-2204.02(3), if
“a sentence of probation is not imposed, the court shall state
its reasoning on the record.” Janis claims the district court
failed to adequately consider all relevant factors “as there were
not substantial and compelling reasons provided at sentencing
as to why Janis could not be effectively and safely supervised
in the community.” Brief for appellant at 11.
[6] Although § 29-2204.02 does not specifically define the
phrase “substantial and compelling,” “both terms have com-
monly understood meanings and it is within the court’s discre-
tion to determine that its reasons are weighty enough to be sub-
stantial and compelling.” State v. Baxter, 295 Neb. 496, 508,
888 N.W.2d 726, 735 (2017). Further, § 29-2204.02(3) requires
the court “to state its ‘reasoning’ rather than its ‘reasons’ on
the record.” State v. Baxter, 295 Neb. at 506, 888 N.W.2d at
734. The court may fulfill this statutory requirement to state its
reasoning on the record “by a combination of the sentencing
hearing and sentencing order.” Id. at 507, 888 N.W.2d at 735.
The district court sufficiently set forth its reasons and reason-
ing at the sentencing hearing and in its sentencing order, as
set forth above. We find no abuse of discretion by the court in
its determination that substantial and compelling reasons exist
for why Janis cannot effectively and safely be supervised in
the community.
Janis further contends that the district court abused its dis-
cretion when it “applied too much emphasis on the nature of
the offense . . . and not enough emphasis on the other factors,
including whether Janis could appropriately be supervised in
the community through an adequate probationary term.” Brief
for appellant at 9. He notes that he had “long periods of law-
abiding behavior” and that his prior convictions were for mis-
demeanor offenses. Id. at 10. He argues that he would benefit
from a term of probation because he has various mental health
and substance abuse struggles.
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STATE V. JANIS
Cite as 32 Neb. App. 49The district court had before it all the information that
Janis suggests weighs in favor of a lesser sentence. However,
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 and
circumstances surrounding the defendant’s life, and a sen-
tencing court is accorded very wide discretion in imposing a
sentence. See State v. Rogers, 297 Neb. 265, 899 N.W.2d 626(2017). We cannot say the court abused its discretion in deter-
mining the sentence imposed.
Plain Error
In its brief on appeal, the State argues that the district court
committed plain error in failing to order the revocation of
Janis’ license for a period of 2 years. We agree. Plain error may
be found on appeal when an error, plainly evident from the
record, prejudicially affects a litigant’s substantial right and,
if uncorrected, would result in damage to the integrity, reputa-
tion, and fairness of the judicial process. State v. Kantaras, 294
Neb. 960, 885 N.W.2d 558 (2016). A sentence that is contrary
to the court’s statutory authority is an appropriate matter for
plain error review. Id.Janis was convicted of operating a motor vehicle in a will-
ful reckless manner to avoid arrest under § 28-905(1) and
(3)(a)(iii). Section 28-905 provides in relevant part:
(1) Any person who operates any motor vehicle to flee
in such vehicle in an effort to avoid arrest or citation
commits the offense of operation of a motor vehicle to
avoid arrest.
(2)(a) Except as otherwise provided in subsection (3)
of this section, any person who violates subsection (1) of
this section shall be guilty of a Class I misdemeanor.
(b) The court may . . . order that the operator’s license
of such person be revoked or impounded for a period of
not more than one year . . . .
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STATE V. JANIS
Cite as 32 Neb. App. 49(3)(a) Any person who violates subsection (1) of this
section shall be guilty of a Class IV felony if, in addition
to the violation of subsection (1) of this section, one or
more of the following also applies:
....
(iii) The flight to avoid arrest includes the willful reck-
less operation of the motor vehicle.
(b) The court shall, as part of the judgment of con-
viction under subdivision (a) of this subsection, order
that the operator’s license of such person be revoked or
impounded for a period of two years and order the per-
son not to drive any motor vehicle for any purpose in
the State of Nebraska for a like period. The revocation
or impoundment shall be administered upon sentencing,
upon final judgment of any appeal or review, or upon the
date that any probation is revoked.
Notably, when the offense is a misdemeanor under § 28-905(2),
the revocation of the offender’s driver’s license for up to 1
year is discretionary to the sentencing court. However, when
the offense qualifies as a Class IV felony, as in Janis’ case, the
revocation of the offender’s driver’s license is mandatory. See
§ 28-905(3)(b). See, also, State v. Collins, 307 Neb. 581, 590,
950 N.W.2d 89, 97 (2020) (use of “‘may’ indicates that license
revocation is discretionary when the offense is a misdemeanor”
but when the “offense is [a] felony, court ‘shall’ revoke defend­
ant’s license for 2 years”).
Janis’ offense qualified as a Class IV felony because his
flight to avoid arrest included the “willful reckless operation”
of a motor vehicle under § 28-905(3)(a)(iii). Because this was
a felony, the revocation of Janis’ driver’s license for 2 years
was mandated under the statute. Therefore, the district court’s
failure to order the revocation or impoundment of Janis’
driver’s license for a period of 2 years was plain error. See,
State v. Weller, No. A-20-040, 2020 WL 4778383 (Neb. App.
Aug. 18, 2020) (selected for posting to court website) (dis-
trict court’s failure to order 2-year license revocation was
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Cite as 32 Neb. App. 49plain error; sentence modified accordingly); State v. Taylor,
No. A-19-965, 2020 WL 4459417 (Neb. App. Aug. 4, 2020)
(selected for posting to court website) (district court’s failure
to order 2-year license revocation was plain error; sentence
modified accordingly). See, also, State v. Vanness, 300 Neb.
159, 912 N.W.2d 736 (2018) (trial court’s plain error in order-
ing indeterminate sentences with same minimum and maxi-
mum term of years instead of determinate sentences required
modification on appeal when trial court’s intended sentences
were apparent from record and there was no other error
in sentencing).
[7] Accordingly, when revocation of an operator’s license
for a specified period of time is mandated by statute and is not
discretionary to the sentencing court, an appellate court may
modify a sentencing order to include the statutory revocation
period when there are no other errors in sentencing which
require remand. See, State v. Vanness, supra; State v. Weller,
supra; State v. Taylor, supra. We therefore modify Janis’ sen-
tence to correct the plain error and impose a 2-year license
revocation in accordance with § 28-905(3)(b).
CONCLUSION
We affirm Janis’ sentence as modified to correct the plain
error discussed above. The sentencing order shall be modified
to include the requirement that Janis’ driver’s license shall be
revoked for 2 years as required under § 28-905(3)(b).
Affirmed as modified.