State v. Artis ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    06/16/2017 09:13 AM CDT
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    296 Nebraska R eports
    STATE v. ARTIS
    Cite as 
    296 Neb. 172
    State of Nebraska, appellee, v.
    Tareik Q. A rtis, appellant.
    ___ N.W.2d ___
    Filed March 24, 2017.    No. S-16-464.
    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.	 Statutes: Appeal and Error. The interpretation of a statute is a question
    of law.
    3.	 Judgments: Appeal and Error. When reviewing a question of law,
    an appellate court reaches a conclusion independent of the lower
    court’s ruling.
    4.	 Sentences. When imposing a sentence, the sentencing judge should
    consider 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 violence involved in the
    commission of the offense. The sentencing court is not limited to any
    mathematically applied set of factors.
    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.	 ____. It is within the discretion of the trial court to impose consecutive
    rather than concurrent sentences for separate crimes. This is true even
    when the crimes arise out of the same incident.
    7.	 Sentences: Appeal and Error. While an appellate court typically
    reviews criminal sentences that are within statutory limits for abuse of
    discretion, the appellate court always reserves the right to note plain
    error which was not complained of at trial or on appeal.
    8.	 Appeal and Error: Words and Phrases. Plain error is error of such a
    nature that to leave it uncorrected would result in damage to the integ-
    rity, reputation, or fairness of the judicial process.
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    9.	 Sentences. A determinate sentence is imposed when the defendant is
    sentenced to a single term of years.
    10.	 ____. With a determinate sentence, the court does not provide a mini-
    mum term; the minimum term is considered to be the minimum term
    provided by law.
    11.	 ____. 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.
    12.	 ____. 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.
    Appeal from the District Court for Lancaster County: Lori
    A. M aret, Judge. Affirmed.
    Robert Wm. Chapin, Jr., for appellant.
    Douglas J. Peterson, Attorney General, and Sarah E. Marfisi
    for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    K elch, J.
    I. NATURE OF CASE
    Tareik Q. Artis was sentenced to not less than 2 years nor
    more than 2 years of imprisonment for possession of a con-
    trolled substance, a Class IV felony, and to 15 to 20 years’
    imprisonment for possession of a stolen firearm, a Class IIA
    felony. These sentences were ordered to be served consecu-
    tively. From these sentences, Artis appeals, alleging that they
    are excessive and that they should have been imposed to
    run concurrently.
    While Artis’ appeal was pending, a legislative bill1 was
    enacted, which, among other things, amended Neb. Rev.
    Stat. § 29-2204.02 (Reissue 2016) to provide that “the court
    shall impose an indeterminate sentence” for Class IV felonies
    1
    2016 Neb. Laws, L.B. 1094 (effective Apr. 20, 2016).
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    imposed consecutively or concurrently with a sentence for a
    Class IIA felony “in accordance with the process set forth in
    section 29-2204.”
    In light of the amendment to § 29-2204.02, this court must
    determine whether Artis’ sentence of not less than 2 years nor
    more than 2 years of imprisonment constitutes plain error.
    II. FACTS
    1. Background
    On September 22, 2015, Artis was wanted for fleeing to
    avoid a traffic citation. In pursuit of Artis, a Lincoln police
    officer was patrolling by a residence that Artis was known to
    frequent. While the officer checked the residence, he observed
    a person driving away in a vehicle. As the vehicle passed the
    officer, the officer smelled marijuana and initiated a traffic
    stop. Artis was a passenger in the back seat of the vehicle.
    The occupants were removed from the vehicle one at a time,
    with Artis being the last person to exit. Artis fled on foot, and a
    chase ensued. According to Artis’ statement in the presentenc-
    ing report, Artis had a gun and knew the officer had seen it.
    Artis then ran for a few blocks before he was surrounded by
    law enforcement. Artis kept running after officers told him to
    stop. At the time, Artis had the gun in his hand. Officers shot
    at Artis four times, hitting him three times.
    Prior to being transported to the hospital, articles of Artis’
    clothing were removed by medical personnel and left at the
    scene. Found near his clothing was a white plastic cylinder
    containing 4.9 grams of cocaine. Also recovered at the scene
    was a .45-caliber semiautomatic pistol with a fully loaded
    magazine containing seven rounds, as well as two additional
    magazines, each fully loaded with seven rounds. A firearm
    “trace” revealed that the firearm had been stolen.
    2. Charges and Plea Agreement
    Artis was originally charged with three counts of posses-
    sion of controlled substances. Count I was for cocaine, and
    counts II and III were for oxycodone and alprazolam. Artis
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    was also charged with possession of a stolen firearm. Pursuant
    to a plea agreement, Artis pled no contest to one count of pos-
    session of a controlled substance (cocaine) and to possession
    of a stolen firearm. This was done in exchange for the State’s
    dismissing the other two charges.
    On April 11, 2016, Artis was sentenced to consecutive sen-
    tences of not less than 2 years nor more than 2 years of impris-
    onment for possession of a controlled substance and 15 to 20
    years’ imprisonment for possession of a stolen firearm. From
    these sentences, Artis timely appealed.
    On August 4, 2016, the State filed a motion for summary
    affirmance, which the Nebraska Court of Appeals sustained
    on September 6. On that same date, the State filed a motion to
    withdraw its motion for summary affirmance and subsequently
    filed a motion for rehearing. The basis for these motions was
    the State’s belief that there may have been plain error in Artis’
    sentence for possession of a controlled substance. In response,
    the Court of Appeals vacated its prior order and sustained the
    State’s motion for rehearing. Because the claim raised by the
    State was thought to be an issue of first impression, we moved
    the case to this court’s docket.2
    III. ASSIGNMENTS OF ERROR
    Artis assigns that the district court erred (1) by impos-
    ing excessive sentences and (2) by not making his sentences
    concurrent.
    IV. STANDARD OF REVIEW
    [1] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court.3
    2
    See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
    3
    State v. Custer, 
    292 Neb. 88
    , 
    871 N.W.2d 243
    (2015); State v. Cullen,
    
    292 Neb. 30
    , 
    870 N.W.2d 784
    (2015); State v. Ortega, 
    290 Neb. 172
    , 
    859 N.W.2d 305
    (2015); State v. McGuire, 
    286 Neb. 494
    , 
    837 N.W.2d 767
          (2013); State v. Dixon, 
    286 Neb. 334
    , 
    837 N.W.2d 496
    (2013).
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    [2,3] The interpretation of a statute is a question of law.4
    When reviewing a question of law, an appellate court reaches a
    conclusion independent of the lower court’s ruling.5
    V. ANALYSIS
    We first review Artis’ assigned errors before considering
    the State’s contention that Artis’ sentence for his conviction of
    possession of a controlled substance, a Class IV felony, consti-
    tutes plain error.
    1. A rtis’ Assigned Errors
    Artis assigns that the trial court erred in imposing exces-
    sive sentences and erred in failing to make his sentences con-
    current. We note that Artis does not argue that his sentences
    exceed the statutory limits, but instead claims that the sen-
    tences are excessive in light of his age and “minimal criminal
    history.”6 He suggests that one concession the trial judge could
    have made was to make Artis’ sentences run concurrently
    rather than consecutively.
    [4-6] When imposing a sentence, the 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) motivation for the offense, as well as (7) the nature of the
    offense and (8) the violence involved in the commission of
    the offense. However, the sentencing court is not limited to
    any mathematically applied set of factors.7 The appropriate-
    ness of a sentence is necessarily a subjective judgment and
    includes the sentencing judge’s observation of the defendant’s
    4
    In re Interest of D.I., 
    281 Neb. 917
    , 
    799 N.W.2d 664
    (2011); D & S Realty
    v. Markel Ins. Co., 
    280 Neb. 567
    , 
    789 N.W.2d 1
    (2010).
    5
    State v. Sims, 
    277 Neb. 192
    , 
    761 N.W.2d 527
    (2009); State v. Davis, 
    276 Neb. 755
    , 
    757 N.W.2d 367
    (2008).
    6
    Brief for appellant at 8.
    7
    State v. Oldson, 
    293 Neb. 718
    , 
    884 N.W.2d 10
    (2016).
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    demeanor and attitude and all the facts and circumstances sur-
    rounding the defendant’s life.8 Additionally, it is within the
    discretion of the trial court to impose consecutive rather than
    concurrent sentences for separate crimes.9 This is true even
    when the crimes arise out of the same incident.10
    When the sentencing court imposed Artis’ sentences and
    made them consecutive, it was cognizant of Artis’ young
    age, but was concerned about Artis’ criminal history, which
    included two prior convictions for possession of a controlled
    substance and narcotics investigations dating back to 2010.
    The sentencing court also afforded significant weight to the
    potential danger caused by Artis’ fleeing from police in a
    public location while carrying a loaded firearm and two
    loaded magazines. After reviewing the record, we conclude
    that the district court did not abuse its discretion in imposing
    Artis’ sentences.
    2. Plain Error
    [7,8] While an appellate court typically reviews crimi-
    nal sentences that are within statutory limits for abuse of
    discretion, the appellate court always reserves the right to
    note plain error which was not complained of at trial or on
    appeal.11 Plain error is error of such a nature that to leave it
    uncorrected would result in damage to the integrity, reputa-
    tion, or fairness of the judicial process.12 For the purpose of
    determining plain error, where the law at the time of trial was
    settled and clearly contrary to the law at the time of appeal,
    8
    Id.
    9
    State v. Dixon, supra note 3.
    10
    See 
    id. 11 State
    v. Bartholomew, 
    258 Neb. 174
    , 
    602 N.W.2d 510
    (1999).
    12
    State v. Scott, 
    284 Neb. 703
    , 
    824 N.W.2d 668
    (2012); State v. Huff, 
    282 Neb. 78
    , 
    802 N.W.2d 77
    (2011); State v. Sellers, 
    279 Neb. 220
    , 
    777 N.W.2d 779
    (2010); State v. Mowell, 
    267 Neb. 83
    , 
    267 N.W.2d 389
          (2003); State v. Greer, 
    257 Neb. 208
    , 
    596 N.W.2d 296
    (1999).
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    it is enough that an error be “plain” at the time of appellate
    consideration.13
    The State submits that Artis’ sentence for his Class IV fel-
    ony was proper at the time it was imposed. However, the State
    asserts that due to the enactment of L.B. 1094, which went into
    effect on April 20, 2016, during the pendency of Artis’ appeal,
    Artis’ sentence may now constitute “plain error.”14 After the
    enactment of L.B. 1094, § 29-2204.02(4) now provides, in
    relevant part:
    For any sentence of imprisonment for a Class III, IIIA,
    or IV felony for an offense committed on or after August
    30, 2015, imposed consecutively or concurrently with
    . . . (b) 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.
    Although not enacted at the time Artis was sentenced, the
    State asserts that this version of § 29-2204.02 should apply to
    Artis’ sentence pursuant to the doctrine in State v. Randolph.15
    However, even if § 29-2204.02 applied to Artis’ sentence, his
    sentence would not constitute plain error, because the sentence
    for his Class IV felony complies with the relevant statutes
    under both L.B. 1094 and its predecessor, 2015 Neb. Laws,
    L.B. 605.
    The State claims that there are three ways in which Artis’
    sentence for his Class IV felony does not comply with the
    L.B. 1094 version of § 29-2204.02. First, the State claims that
    Artis’ sentence for his Class IV felony is a determinate sen-
    tence, while the L.B. 1094 version of § 29-2204.02 requires
    13
    State v. Mata, 
    266 Neb. 668
    , 
    668 N.W.2d 448
    (2003), abrogated on other
    grounds, State v. Rogers, 
    277 Neb. 37
    , 
    760 N.W.2d 35
    (2009).
    14
    Brief for appellee at 8.
    15
    State v. Randolph, 
    186 Neb. 297
    , 
    183 N.W.2d 225
    (1971).
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    that Artis receive an indeterminate sentence. Second, the State
    suggests the amended version of § 29-2204.02(4) requires
    that the minimum term of Artis’ sentence for his Class IV
    felony be less than the maximum term and that therefore,
    Artis’ sentence does not comply. And, third, the State asserts
    that postrelease supervision could be imputed to Artis under
    the L.B. 605 version of the statutory scheme, which would be
    noncompliant with the L.B. 1094 version. We address each of
    these arguments in turn.
    (a) Artis’ Sentence
    Is Indeterminate
    [9-12] The State has mischaracterized Artis’ sentence of
    “not less than 2 years, nor more than 2 years” as a determinate
    sentence. A determinate sentence is imposed when the defend­
    ant is sentenced to a single term of years, such as a sentence
    of 2 years’ imprisonment.16 With a determinate sentence, the
    court does not provide a minimum term; the minimum term is
    considered to be the minimum term provided by law.17 Thus,
    for a Class IV felony, which has a minimum punishment of no
    imprisonment, the minimum term of a determinate sentence
    would be 0 year’s imprisonment.18 In contrast, when impos-
    ing 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.19
    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.20 Thus, we conclude that
    Artis’ sentence for his Class IV felony is an indeterminate
    16
    See State v. White, 
    256 Neb. 536
    , 
    590 N.W.2d 863
    (1999).
    17
    
    Id. 18 Neb.
    Rev. Stat. § 28-105 (Reissue 2016); State v. White, supra note 16.
    19
    
    Id. 20 See,
    State v. Marrs, 
    272 Neb. 573
    , 
    723 N.W.2d 499
    (2006); State v.
    Urbano, 
    256 Neb. 194
    , 
    589 N.W.2d 144
    (1999).
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    sentence in which the minimum and maximum terms are
    the same. Such sentence complies with L.B. 1094’s require-
    ment that the court impose an indeterminate sentence for a
    Class IV felony when that sentence is imposed consecutively
    with a Class IIA felony, and we therefore find no plain error
    in this regard.
    (b) Term “Process” in
    § 29-2204.02(4)
    The State also claims that the current versions of Neb. Rev.
    Stat. § 29-2204(1) (Reissue 2016) and § 29-2204.02(4) require
    that the minimum term be less than the maximum term for
    Artis’ sentence for his Class IV felony. We disagree. Section
    29-2204(1) states:
    Except when the defendant is found guilty of a Class IA
    felony, in imposing a sentence upon an offender for any
    class of felony other than a Class III, IIIA, or IV felony,
    the court shall fix the minimum and the maximum terms
    of the sentence to be served within the limits provided
    by law. The maximum term shall not be greater than the
    maximum limit provided by law, and:
    (a) The minimum term fixed by the court shall be any
    term of years less than the maximum term imposed by the
    court; or
    (b) The minimum term shall be the minimum limit
    provided by law.
    (Emphasis supplied.)
    Although § 29-2204(1) expressly states that it does not
    apply to sentences for Class IV felonies, the State argues
    that § 29-2204.02(4) supersedes that exclusion, because
    § 29-2204.02(4) is more specific than § 29-2204(1). As
    noted above, § 29-2204.02(4) provides that “the court shall
    impose an indeterminate sentence” for Class IV felonies
    imposed consecutively or concurrently with a sentence for a
    Class IIA felony “in accordance with the process set forth in
    section 29-2204.”
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    The State suggests that the phrase “process set forth in sec-
    tion 29-2204” refers to the requirement in § 29-2204(1)(a) that
    the minimum term of an indeterminate sentence be less than
    the maximum term. However, § 29-2204.02(4) does not limit
    the process to only § 29-2204(1)(a), but references § 29-2204
    in general. Accordingly, in following the “process set forth in
    section 29-2204,” a sentencing court should review all subsec-
    tions of § 29-2204, not just specific phrases or subsections. In
    reviewing § 29-2204, we note that subsection (1) specifically
    excludes Class IV felonies, and we are required to give effect
    to all parts of a statute and to avoid rejecting a word, clause,
    or sentence as superfluous or meaningless.21 Accordingly, we
    cannot accept the State’s interpretation, which would require
    the court to disregard part of the first sentence in § 29-2204(1).
    Because § 29-2204(1) excludes Class IV felonies, we conclude
    that §§ 29-2204 and 29-2204.02(4) do not require that Artis’
    sentence for his Class IV felony have a minimum term less
    than the maximum term.
    Our interpretation is supported by the legislative history
    of L.B. 1094, which is the bill that added § 24-2204.02(4).
    During at least one floor debate and at the judicial hearing,
    the bill’s introducers repeatedly indicated that L.B. 1094 was
    not meant to make any substantive changes to the sentenc-
    ing scheme established by L.B. 605.22 Instead, L.B. 1094 is
    a “‘clean-up bill’” and was intended to eliminate some unin-
    tended effects of L.B. 605.23 One of those unintended effects
    was the possibility that a defendant who was sentenced con-
    secutively or concurrently to multiple crimes would be subject
    21
    See Fisher v. PayFlex Systems USA, 
    285 Neb. 808
    , 
    829 N.W.2d 703
          (2013).
    22
    Judiciary Committee Hearing, L.B. 1094, 104th Leg., 1st Sess. 47 (Feb.
    4, 2016) (remarks of legal counsel to Judiciary Committee); Floor Debate,
    L.B. 1094, 104th Leg., 1st Sess. 25 (Mar. 23, 2016) (remarks of Senator
    Les Seiler).
    23
    Introducer’s Statement of Intent, L.B. 1094, 104th Leg., 1st Sess. (Feb. 4,
    2016).
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    to both parole and postrelease supervision.24 According to the
    Judiciary Committee Statement, § 29.2204.02 was amended
    to prevent that situation and also to clarify that good time
    should not apply to postrelease supervision.25 Nothing within
    the legislative history suggests that § 29-2204.02 was meant
    to change the duration of punishment for offenders being sen-
    tenced to multiple crimes simultaneously.
    Moreover, § 29-2204.02(4) applies only to certain offenders
    who are sentenced for multiple crimes. It would not limit the
    minimum term of sentences for offenders who have committed
    only one Class III, IIIA, or IV felony. Therefore, if the term
    “process” referred to only § 29-2204(1)(a), then the statutory
    scheme would allow, for example, an offender who committed
    multiple crimes to receive a more beneficial sentence for his
    or her Class IV felony than an offender who committed only
    a Class IV felony. We cannot say that is what the Legislature
    intended. Thus, § 29-2204.02(4) clearly refers to the entire
    statute § 29-2204.
    As we read the statutes under L.B. 1094, there is nothing that
    requires the minimum term of Artis’ sentence for his Class IV
    felony to be less than the maximum term. Accordingly, Artis’
    sentence appears to comply with L.B. 1094 in this respect.
    (c) Postrelease Supervision
    The State also suggests that Artis’ sentence may constitute
    plain error pursuant to the Randolph doctrine, because the ver-
    sion of § 29-2204.02 as amended by L.B. 1094 requires that
    Artis receive no period of postrelease supervision.26 Although
    the district court did not order postrelease supervision, the
    State is concerned that under the statutory scheme in effect at
    the time of Artis’ sentencing, a period of 9 months’ postrelease
    supervision could be imputed to him.
    24
    Committee Statement, L.B. 1094, 104th Leg., 1st Sess. 2, 5 (Feb. 4, 2016).
    25
    
    Id. 26 See
    State v. Randolph, supra note 15.
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    However, even under L.B. 605, Artis is not subject to
    postrelease supervision. The L.B. 605 version of § 28-105(6)
    states, in relevant part, “Any person who is sentenced to
    imprisonment for a Class . . . IIA felony and sentenced con-
    currently or consecutively to imprisonment for a Class . . . IV
    felony shall not be subject to post-release supervision pursu-
    ant to subsection (1) of this section.” Here, Artis was sen-
    tenced to imprisonment for a Class IIA felony and sentenced
    consecutively to a Class IV felony, and the district court did
    not impose a period of postrelease supervision. Accordingly,
    the sentencing order was compliant with both L.B. 605 and
    L.B. 1094. Therefore, we find no plain error and affirm
    his sentences.
    VI. CONCLUSION
    For the foregoing reasons, the district court did not abuse
    its discretion in imposing Artis’ sentences and the sentence
    for his Class IV felony is not plainly erroneous. We there-
    fore affirm.
    A ffirmed.