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

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/26/2021 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. STARKS
Cite as 308 Neb. 527State 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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STATE v. STARKS
Cite as 308 Neb. 527background, (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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STATE v. STARKS
Cite as 308 Neb. 527Heavican, 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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STATE v. STARKS
Cite as 308 Neb. 527between 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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STATE v. STARKS
Cite as 308 Neb. 527of 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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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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STATE v. STARKS
Cite as 308 Neb. 527Starks 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. 527be 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. 527Plain 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
Cite as 308 Neb. 527August 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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STATE v. STARKS
Cite as 308 Neb. 527and 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).