State v. Greer , 309 Neb. 667 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    09/24/2021 12:10 AM CDT
    - 667 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. GREER
    Cite as 
    309 Neb. 667
    State of Nebraska, appellee, v.
    Kenneth Greer, appellant.
    ___ N.W.2d ___
    Filed July 2, 2021.     No. S-20-639.
    1. Jurisdiction: Appeal and Error. A jurisdictional question which does
    not involve a factual dispute is determined by an appellate court as a
    matter of law.
    2. Sentences: Judges: Appeal and Error: Words and Phrases. A sen-
    tence imposed within the statutory limits will not be disturbed on appeal
    in the absence of an abuse of discretion by the trial court. A judicial
    abuse of discretion exists only when the reasons or rulings of a trial
    judge are clearly untenable, unfairly depriving a litigant of a substantial
    right and denying a just result in matters submitted for disposition.
    3. Jurisdiction: Appeal and Error. It is the power and duty of an appel-
    late court to determine whether it has jurisdiction over the matter before
    it, irrespective of whether the issue is raised by the parties.
    4. ____: ____. An appeal is deemed perfected and the appellate court shall
    have jurisdiction of the cause when such notice of appeal has been filed
    and the required docket fee has been deposited in the office of the clerk
    of the district court.
    5. Jurisdiction: Affidavits: Fees: Appeal and Error. In lieu of deposit-
    ing the required docket fee, Neb. Rev. Stat. § 29-2306 (Reissue 2016)
    allows a criminal defendant to request to proceed in forma pauperis on
    appeal, and, in this situation, a poverty affidavit serves as a substitute
    for the docket fee otherwise required upon appeal.
    6. Jurisdiction: Affidavits: Appeal and Error. An in forma pauperis
    appeal is perfected when the appellant timely files a notice of appeal and
    a proper affidavit of poverty.
    7. Sentences: Appeal and Error. When sentences imposed within statu-
    tory limits are alleged on appeal to be excessive, the appellate court must
    determine whether the sentencing court abused its discretion in consid-
    ering well-established factors and any applicable legal principles.
    - 668 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. GREER
    Cite as 
    309 Neb. 667
    8. 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.
    9. ____. The sentencing court is not limited to any mathematically applied
    set of factors, but the appropriateness of the sentence is necessarily a
    subjective judgment that includes the sentencing judge’s observations
    of the defendant’s demeanor and attitude and all the facts and circum-
    stances surrounding the defendant’s life.
    Appeal from the District Court for Douglas County:
    Kimberly Miller Pankonin, Judge. Affirmed.
    Thomas C. Riley, Douglas County Public Defender, and
    April M. Lucas for appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    NATURE OF CASE
    In an appeal from a second degree assault conviction, a
    question of appellate court jurisdiction arose with regard to
    the defendant’s second attempt to appeal after he dismissed
    his first attempt due to his failure to properly perfect it. In his
    appeal, the defendant challenges the district court’s sentence
    of 19 to 20 years’ imprisonment as excessive, asserting that
    the district court abused its discretion by failing to adequately
    consider all mitigating factors.
    BACKGROUND
    Plea and Conviction
    Pursuant to a plea agreement, Kenneth Greer pled no con-
    test to second degree assault, a Class IIA felony, and the State
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. GREER
    Cite as 
    309 Neb. 667
    dismissed the charge of driving under the influence (DUI)
    causing serious bodily injury, a Class IIIA felony. The State’s
    factual basis alleged that on November 6, 2019, Greer caused
    a collision and fled the scene at a high rate of speed. Greer
    struck another vehicle approximately two blocks away and then
    continued through a stop sign at a controlled intersection where
    he struck the rear of a van.
    One of the passengers of the van was a 6-year-old girl who
    sustained traumatic head and spinal injuries. She was hospi-
    talized and remained unresponsive for a period of time. In
    January 2020, the girl was admitted to a rehabilitation center,
    and at the time of the sentencing hearing on August 6, she
    remained partially paralyzed.
    Based on the data from the airbag control module in Greer’s
    vehicle, he was traveling 67 miles per hour at the time of
    impact, which occurred in a 25-mile-per-hour speed zone.
    When officers arrived, Greer smelled of alcohol, had slurred
    speech, and failed a preliminary breath test. Pursuant to a
    search warrant, a blood draw was performed, and Greer’s
    blood alcohol content was .311 of a gram of alcohol per 100
    milliliters of his blood. After accepting Greer’s no contest plea,
    the court ordered that a presentence report (PSR) be prepared
    and continued the matter for sentencing.
    Sentence
    At the sentencing hearing, Greer’s counsel asked the court
    to fashion a sentence that took into consideration Greer’s age
    of 51 years; his medical condition of cirrhosis of the liver; his
    expression of remorse; his 11th grade education; and, while he
    denies it, his mental learning deficit.
    Counsel acknowledged that this was Greer’s third DUI,
    but pointed out his prior convictions were not recent and
    the death of Greer’s brother played a role in his alcohol use.
    Defense counsel further stated that Greer took the plea without
    hesitation, taking responsibility for what he did. When Greer
    was asked if he wanted to say anything, he stated, “Yes. I’m
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. GREER
    Cite as 
    309 Neb. 667
    very, very, sorry for the accident and for everything that I
    caused. But I apologize for that.”
    The PSR sets forth the serious injuries suffered by the vic-
    tim and indicates that the family continues to experience post-­
    traumatic stress disorder. The mother of the injured child had to
    quit her job to care for her child, who is now a paraplegic and
    has already incurred $850,000 in ongoing medical expenses.
    Greer’s criminal history included two prior DUI convictions,
    a felony possession of cocaine conviction, and multiple traffic
    infractions. Greer’s criminal history also indicated that he did
    not satisfactorily complete probation two of the three times it
    had been granted to him. It was also noted that Greer’s driv-
    ing privileges had been listed as revoked by the Department of
    Motor Vehicles since 2004, as a result of his second DUI.
    Greer denied ever being diagnosed with a learning disabil-
    ity, but admitted that he was required to participate in special
    education programming at times and continues to experience
    educational difficulties. Greer reported that during his senior
    year of high school, he chose to drop out so he could work to
    financially help his mother because she was on her own rais-
    ing him and his siblings. Greer reported that he had not held
    a regular job since 2005, when he ended his 16-year janitorial
    career at a university, and that he has survived on money he
    has earned by performing “odd jobs” for cash.
    Greer reported having his first drink of alcohol at the age
    of 16 and described himself as a social level drinker with no
    “lifetime alcohol induced blackouts.” Despite his history of
    DUI arrests, Greer denied ever feeling he had problems with
    alcohol and stated he had decreased his drinking levels to
    two to three beers once per month. The PSR noted Greer’s
    reported blood alcohol content was .311 and that he told the
    accident investigator that he “blacked out” after consuming
    just two beers.
    The PSR concluded that rehabilitative services of probation
    appear to be inappropriate due to Greer’s past performance
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. GREER
    Cite as 
    309 Neb. 667
    on probation and to the fact that he is at a very high risk to
    reoffend. Greer showed a great deal of denial and minimiza-
    tion regarding the actual negative effect that alcohol has placed
    in his life and exhibited very little remorse for the injuries
    and financial stress he has caused. Ultimately, the PSR recom-
    mended that Greer’s case “be handled with a straight sentence
    of incarceration.”
    At the sentencing hearing on August 6, 2020, the district
    court noted Greer’s prior criminal history and the probation
    officer’s perception that Greer showed no remorse. The court
    then set forth the long-term, life-altering effects on the minor
    victim and her family resulting from the choice Greer made to
    drink and drive. The court sentenced Greer to 19 to 20 years’
    imprisonment, which sentence was memorialized in its order
    file stamped on August 7, 2020.
    Multiple Appeals
    Greer first filed a notice of appeal on August 24, 2020,
    along with an application to proceed in forma pauperis and an
    affidavit in support of the application. This appeal was dock-
    eted as case No. A-20-606. The notary stamp on the affidavit
    indicated that the notary’s commission had expired. On August
    28, the Nebraska Court of Appeals filed an order to show
    cause, ordering Greer to “provide . . . an affidavit attesting
    that the purported notary was a duly qualified notary public in
    the State of Nebraska at the time of the signing of [his] pov-
    erty affidavit.”
    On September 2, 2020, Greer, along with the State, filed
    a stipulation to dismiss the appeal. Accordingly, the Court of
    Appeals issued a mandate dated September 3, 2020, ordering
    the appeal be dismissed. The order on the mandate was filed
    September 11.
    Meanwhile, Greer filed a second notice of appeal with the
    application to proceed in forma pauperis and a valid affida-
    vit in support of the application on September 3, 2020. This
    appeal was docketed as case No. A-20-639.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. GREER
    Cite as 
    309 Neb. 667
    ASSIGNMENT OF ERROR
    Greer assigns that the district court abused its discretion by
    imposing an excessive sentence because the district court failed
    to adequately consider mitigating factors.
    STANDARD OF REVIEW
    [1] A jurisdictional question which does not involve a fac-
    tual dispute is determined by an appellate court as a matter
    of law. 1
    [2] 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. 2 A judicial abuse of discretion exists only
    when the reasons or rulings of a trial judge are clearly unten-
    able, unfairly depriving a litigant of a substantial right and
    denying a just result in matters submitted for disposition. 3
    ANALYSIS
    Jurisdiction
    [3] It is the power and duty of an appellate court to deter-
    mine whether it has jurisdiction over the matter before it, irre-
    spective of whether the issue is raised by the parties. 4 Citing
    L. J. Vontz Constr. Co. v. City of Alliance 5 and In re Estate of
    Marsh, 6 the Court of Appeals requested that the parties brief
    the issue of whether the prior dismissal of case No. A-20-606—
    without addressing its merits—acted as an affirmance of the
    judgment, which operated as res judicata in relation to the
    appeal in case No. A-20-639. Both parties believe this court
    has jurisdiction over this refiled appeal. We agree.
    1
    Porter v. Porter, ante p. 167, 
    959 N.W.2d 235
     (2021).
    2
    State v. Gray, 
    307 Neb. 418
    , 
    949 N.W.2d 320
     (2020).
    3
    
    Id. 4
    Porter, supra note 1.
    5
    L. J. Vontz Constr. Co. v. City of Alliance, 
    243 Neb. 334
    , 
    500 N.W.2d 173
    (1993).
    6
    In re Estate of Marsh, 
    145 Neb. 559
    , 
    17 N.W.2d 471
     (1945).
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. GREER
    Cite as 
    309 Neb. 667
    [4-6] Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2020) gov-
    erns appellate jurisdiction and sets out the requirements for an
    appeal to be perfected in the appellate court. Section 25-1912
    requires that a notice of appeal must be filed and the required
    docket fee deposited in the office of the clerk of the district in
    which a judgment and sentence upon conviction was rendered
    within 30 days after the entry of such judgment. An appeal is
    deemed perfected and the appellate court shall have jurisdic-
    tion of the cause when such notice of appeal has been filed and
    the required docket fee has been deposited in the office of the
    clerk of the district court. 7 In lieu of depositing the required
    docket fee, Neb. Rev. Stat. § 29-2306 (Reissue 2016) allows
    a criminal defendant to request to proceed in forma pauperis
    on appeal, and, in this situation, a poverty affidavit serves
    as a substitute for the docket fee otherwise required upon
    appeal. 8 An in forma pauperis appeal is perfected when the
    appellant timely files a notice of appeal and a proper affidavit
    of poverty. 9
    L. J. Vontz Constr. Co. and In re Estate of Marsh both
    state the general rule that the dismissal of an appeal from an
    appellate court without an examination of the case upon its
    merits operates as an affirmance of the judgment appealed
    or attempted to be appealed from. 10 But both of these cases
    are factually distinguishable from this matter. In both cases,
    the dismissed appeals were properly perfected prior to their
    dismissals. Here, Greer failed to perfect his first attempt to
    appeal due to an expired notary stamp on the affidavit accom-
    panying Greer’s application to proceed in forma pauperis.
    Therefore, in this case, appellate court jurisdiction had never
    been established.
    7
    State v. Melton, 
    308 Neb. 159
    , 
    953 N.W.2d 246
     (2021). See § 25-1912(4).
    8
    Melton, 
    supra note 7
    .
    9
    
    Id. 10
    L. J. Vontz Constr. Co., supra note 5; In re Estate of Marsh, supra note 6.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. GREER
    Cite as 
    309 Neb. 667
    Despite the absence of a properly perfected appeal, the par-
    ties stipulated that the appeal would be dismissed. Greer then
    properly perfected his second attempt to appeal within the
    30-day filing limitation established by § 25-1912.
    Since Greer did not perfect his first appeal attempt, appellate
    jurisdiction was never established to allow the determination
    of any question relative to Greer’s appeal and nothing was
    presented for review. 11 For that reason, Greer’s first appeal
    was a procedural and legal nullity. As we have often stated in
    other contexts, “‘[n]othing comes from nothing.’” 12 Therefore,
    appellate jurisdiction was established when Greer properly per-
    fected his second attempt to appeal.
    Excessive Sentence
    Greer alleges that the sentence of 19 to 20 years’ imprison­
    ment imposed for his second degree assault conviction was
    excessive because the district court did not seriously or ade-
    quately consider all of the mitigating sentencing factors, spe-
    cifically Greer’s age, education and experience, mentality,
    criminal history, and the circumstances of the offense. Greer
    argues that the district court did not tailor his sentences to fit
    him as the offender, but instead imposed the sentence to fit
    the crime.
    [7] Greer’s conviction for second degree assault, a Class IIA
    felony, is punishable by no minimum and a maximum of 20
    years’ imprisonment. 13 When sentences imposed within statu-
    tory limits are alleged on appeal to be excessive, the appellate
    court must determine whether the sentencing court abused
    its discretion in considering well-established factors and any
    applicable legal principles. 14
    11
    See State v. Miller, 
    240 Neb. 297
    , 
    481 N.W.2d 580
     (1992).
    12
    
    Id. at 299,
     
    481 N.W.2d at 581
    .
    13
    See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020).
    14
    Gray, 
    supra note 2
    .
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. GREER
    Cite as 
    309 Neb. 667
    [8,9] 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. 15 The sentencing court is not limited to any math-
    ematically applied set of factors, but the appropriateness of the
    sentence is necessarily a subjective judgment that includes the
    sentencing judge’s observations of the defendant’s demeanor
    and attitude and all the facts and circumstances surrounding the
    defendant’s life. 16
    We review the sentence imposed for an abuse of discretion. 17
    A judicial abuse of discretion exists only when the reasons or
    rulings of a trial judge are clearly untenable, unfairly depriving
    a litigant of a substantial right and denying a just result in mat-
    ters submitted for disposition. 18
    Greer was 51 years old at the time of sentencing and had
    two prior DUI convictions. He had a poor history of perform­
    ance while on probation and was operating his motor vehicle
    in violation of a court’s license revocation order at the time of
    the offense. Greer was driving with a blood alcohol content of
    .311 of a gram of alcohol per 100 milliliters of his blood and
    acknowledged to the probation officer that he was aware that
    he should not have been driving. Finally, while Greer perhaps
    showed some remorse for his actions, such remorse does not
    counteract the lifelong effects of Greer’s choice to drink and
    drive on his victim and her family.
    The district court recognized the appropriate factors when
    imposing Greer’s sentence. The district court stated on the
    15
    
    Id. 16
    Id.
    17
    Id.
    18
    Id.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    STATE v. GREER
    Cite as 
    309 Neb. 667
    record that it considered the PSR, which included information
    for all of the factors to be considered by a sentencing court.
    Though it may be good practice for district courts to provide
    a record of their reasoning, we do not require the sentencing
    court to articulate on the record that it has considered each
    sentencing factor nor to make specific findings as to the facts
    pertaining to the factors or the weight given them. 19
    Greer also argues that the sentence imposed fits only
    the crime and not the offender. We disagree. The sentence
    imposed properly reflected the seriousness of the crime com-
    mitted, the long-lasting effect on the victim and her family, and
    Greer’s prior criminal record and performance on probation.
    Considering the totality of the circumstances, we cannot say
    that the district court’s sentence was untenable. We find the
    district court did not abuse its discretion in imposing a sen-
    tence of 19 to 20 years’ imprisonment in this matter.
    CONCLUSION
    For the foregoing reasons, the district court’s judgment is
    affirmed.
    Affirmed.
    19
    See State v. McCulley, 
    305 Neb. 139
    , 
    939 N.W.2d 373
     (2020).