State v. Becker , 304 Neb. 693 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/17/2020 01:05 AM CST
- 693 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
State of Nebraska, appellee, v.
Timothy L. Becker, appellant.
___ N.W.2d ___
Filed December 20, 2019. No. S-19-008.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion.
2. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
4. Constitutional Law: Sentences. Whether a sentence constitutes cruel
and unusual punishment in violation of the Eighth Amendment presents
a question of law.
5. Judgments: Appeal and Error. When reviewing a question of law,
an appellate court reaches a conclusion independent of the lower
court’s ruling.
6. 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.
7. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
8. Appeal and Error. Plain error may be found on appeal when an error
unasserted or uncomplained of at trial is plainly evident from the record,
affects a litigant’s substantial right, and, if uncorrected, would result in
damage to the integrity, reputation, and fairness of the judicial process.
- 694 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
9. Constitutional Law: Sentences. The Eighth Amendment prohibits
not only barbaric punishments, but also sentences that are dispropor-
tionate to the crime committed. The U.S. Supreme Court has charac-
terized this as a “narrow proportionality principle” which does not
require strict proportionality between crime and sentence, but, rather,
forbids only extreme sentences that are grossly disproportionate to
the crime.
10. ____: ____. Under ordinary Eighth Amendment analysis, each sentence
is considered separately, not cumulatively, for purposes of determining
whether it is cruel and unusual.
11. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
12. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (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.
13. ____. 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.
14. ____. Generally, it is within a trial court’s discretion to direct that
sentences imposed for separate crimes be served either concurrently or
consecutively.
Appeal from the District Court for Scotts Bluff County,
Andrea D. Miller, Judge, on appeal thereto from the County
Court for Scotts Bluff County, James M. Worden, Judge.
Judgment of District Court affirmed.
Bernard J. Straetker, Scotts Bluff County Public Defender,
for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
- 695 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
Miller-Lerman, J.
NATURE OF CASE
Timothy L. Becker, appellant, was convicted in the county
court for Scotts Bluff County of 21 misdemeanor counts of
violating a protection order and sentenced to county jail for
180 days on each count, to be served consecutively. On appeal
to the district court, Becker claimed that the sentences imposed
were (1) excessive, (2) disproportionate in violation of the
Eighth Amendment, and (3) invalid because when the county
court orally pronounced his sentences in open court, it failed to
state where the sentences were to be served. The district court
rejected each of these claims and affirmed Becker’s convic-
tions and sentences. On appeal to this court, Becker claims
the district court erred when it rejected each of his contentions
regarding his sentences. Because we find no merit to Becker’s
claims of error, we affirm the order of the district court, which
affirmed Becker’s convictions and sentences.
STATEMENT OF FACTS
On May 29, 2018, the State charged Becker in the Scotts
Bluff County Court with 21 counts of violating a protection
order under Neb. Rev. Stat. § 42-924(4) (Cum. Supp. 2018).
Each count involved a violation of the same protection order
and the same victim, but each count was alleged to have
occurred on a different date from May 3 through May 23,
2018. Each count was charged as a second offense based on a
prior conviction for violation of a protection order involving
the same victim. The complaint alleged that the prior offense
had occurred on January 3, 2018, and that Becker had been
convicted of the prior offense on May 3.
Pursuant to a plea agreement, the State reduced each of the
charges to a first offense and Becker pled no contest to all 21
counts on June 5, 2018. Under § 42-924(4), a first offense of
violating a protection order is a Class I misdemeanor, whereas
a second or subsequent offense is a Class IV felony.
In its factual basis for the pleas, the State asserted that a
protection order had been entered against Becker on October
- 696 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
19, 2017, and had remained in effect since issued and that the
protection order prohibited Becker from, inter alia, telephoning
or otherwise communicating with the victim. The State further
asserted that on the dates alleged, Becker was incarcerated in
the Scotts Bluff County jail and that jail records showed that
Becker had telephoned the victim’s number on each of the
charged dates, “often multiple times a day.” The State asserted
that in the timeframe alleged, Becker had made over 300 calls
to the victim’s number and that “over 150 of those were com-
pleted phone calls.”
At the July 31, 2018, sentencing hearing, the county court
received evidence, including the victim’s impact statement.
After hearing arguments from the State and from Becker, the
county court sentenced Becker to imprisonment for 180 days
for each of the 21 convictions and ordered that the sentences
be served consecutively to one another. In connection with
the imposition of sentences, the county court stated that it
had considered the victim impact statement, Becker’s criminal
history, the nature of the offenses, public safety, and the need
for punishment. The county court further stated that it con-
sidered Becker’s comments at the sentencing hearing, which
“very much went to blame other people rather than to take
personal responsibility and make any promises not to do that
in the future.”
Before pronouncing the sentence, the county court had a dis-
cussion with counsel regarding where Becker would serve his
sentences “if he is given over a year sentence.” In that discus-
sion, the court made reference to Neb. Rev. Stat. § 28-106(2)
(Reissue 2016), which provides in part:
Sentences of imprisonment in misdemeanor cases shall
be served in the county jail, except that such sentences
may be served in institutions under the jurisdiction of the
Department of Correctional Services if the sentence is to
be served concurrently or consecutively with a term for
conviction of a felony and the combined sentences total a
term of one year or more.
- 697 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
At the end of the discussion, the court stated that it was “going
to issue the sentence, and then I am going to look at that [loca-
tion issue] before I issue the commitment order showing where
the commitment will take place. . . . [H]opefully I can still get
that figured out yet today, but, if not, first thing in the morn-
ing.” See Neb. Rev. Stat. § 29-2403 (Reissue 2016) (providing
for warrant of commitment). While counsel and Becker were
present in the courtroom, the court pronounced a sentence of
180 days for each count. The written sentencing order, signed
and dated by the county court on July 31, 2018, stated that
Becker was “sentenced to the Scotts Bluff County Jail” for
consecutive sentences of 180 days for each of the 21 misde-
meanor convictions, for a total of 3,780 days. The sentencing
order was filed on August 1.
Becker appealed his convictions and sentences to the district
court. After briefing and argument, the district court filed an
order which affirmed the county court’s judgment. The district
court stated that Becker argued that (1) the sentences imposed
by the county court were excessive, (2) the sentences violated
the Eighth Amendment because they were disproportionate
to the crimes committed, and (3) the sentences were invalid
because the county court did not announce in open court where
Becker would serve his sentences. Regarding excessive sen-
tences, the district court determined that the sentences were
within statutory limits, were supported by competent evidence,
and did not constitute an abuse of discretion. Regarding dis-
proportionate sentencing, the district court again noted that the
sentences were within statutory limits and that Becker’s crimi-
nal history included a violation of the same protection order.
The district court also rejected Becker’s argument that the sen-
tences were disproportionate because they would be served in
county jail “with little services offered and with little opportu-
nity to be outside.” The district court noted that the Legislature
provided in § 28-106 that sentences for misdemeanors were to
be served in county jails unless served concurrently with or
consecutively to a sentence for a felony. Based on § 28-106,
- 698 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
the district court determined that because the sentences in this
case were for misdemeanors and there was no felony involved,
the statutorily required location for the sentences was the
county jail. Finally, regarding the failure to announce in open
court the location where the sentences would be served, the
district court noted that the county court had engaged in a
discussion of the issue with counsel and that Becker did not
object to the county court’s statement that it would research
the location issue and issue a commitment order identifying the
location following the hearing. The district court noted that the
county court sentencing order filed the day after the sentenc-
ing hearing provided that the sentences would be served in the
county jail. The district court concluded that there was no error
regarding sentencing and affirmed.
Becker appeals the district court’s order which affirmed his
convictions and sentences.
ASSIGNMENTS OF ERROR
Becker generally claims that the district court erred when it
affirmed his convictions and sentences. Becker claims, restated
and reordered, that (1) there was plain error and the sentences
were not valid, because he was not present in court “when the
commitment portion of his sentences [was] imposed”; (2) the
sentences imposed violated the Eighth Amendment because
they were disproportionate to his criminal history and the
severity of the crimes; and (3) the sentences imposed were
excessive and an abuse of discretion.
STANDARDS OF REVIEW
[1-3] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals,
and its review is limited to an examination of the record for
error or abuse of discretion. State v. Hatfield, ante p. 66, 933
N.W.2d 78 (2019). Both the district court and a higher appel-
late court generally review appeals from the county court for
error appearing on the record. Id. When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
- 699 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Id.
[4,5] Whether a sentence constitutes cruel and unusual pun-
ishment in violation of the Eighth Amendment presents a
question of law. State v. Jones, 297 Neb. 557, 900 N.W.2d
757 (2017). When reviewing a question of law, an appellate
court reaches a conclusion independent of the lower court’s
ruling. Id.
[6,7] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Montoya, ante p. 96, 933 N.W.2d 558
(2019). An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. Id.
ANALYSIS
Each of Becker’s three assignments of error relates to the
propriety of his sentences. Thus, we make some initial com-
ments which relate to our analysis of each assignment of error.
We initially note that Becker pled no contest to and was con-
victed of 21 counts of first offense violation of a protection
order. Under § 42-924(4), a first offense of violating a protec-
tion order is a Class I misdemeanor. The sentencing range for a
Class I misdemeanor is found in § 28-106, which provides no
minimum and a maximum of 1 year’s imprisonment, a $1,000
fine, or both. As noted in the facts above, § 28-106(2) provides
in part:
Sentences of imprisonment in misdemeanor cases shall
be served in the county jail, except that such sentences
may be served in institutions under the jurisdiction of the
Department of Correctional Services if the sentence is to
be served concurrently or consecutively with a term for
conviction of a felony and the combined sentences total a
term of one year or more.
- 700 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
The county court sentenced Becker “to the Scotts Bluff
County Jail” for consecutive sentences of 180 days for each
of the 21 misdemeanor convictions, for a total of 3,780 days.
The individual sentences were within the range allowed under
§ 28-106, and because the sentences were not ordered to be
served concurrently with or consecutively to a sentence for a
felony conviction, the sentences were required under the cur-
rent version of § 28-106(2) to be served “in the county jail.”
Court’s Failure to Announce in Court
Where Sentences Would Be Served
Was Not Plain Error.
We first address Becker’s claim that his sentences were
invalid because the county court did not announce in open
court the location where his sentences would be served. We
find no plain error in this respect.
[8] Becker frames this claim as an instance of plain error.
As noted in the fact section above, at the July 31, 2018,
sentencing hearing, the court had a discussion regarding the
location where the sentences would be required to be served
and stated that it was first “going to issue the sentence, and
then I am going to look at that [location issue] before I issue
the commitment order showing where the commitment will
take place. . . . [H]opefully I can still get that figured out yet
today, but, if not, first thing in the morning.” Becker did not
object to the sentencing procedure expressed by the court, and
therefore he has presented this claim on appeal as a claim of
plain error. Plain error may be found on appeal when an error
unasserted or uncomplained of at trial is plainly evident from
the record, affects a litigant’s substantial right, and, if uncor-
rected, would result in damage to the integrity, reputation, and
fairness of the judicial process. State v. Briggs, 303 Neb. 352,
929 N.W.2d 65 (2019).
Becker relies on State v. Temple, 230 Neb. 624, 628, 432
N.W.2d 818, 821 (1988), in which we stated: “The pronounce-
ment of the sentence in open court in the presence of the
defend­ant is an important part of the sentencing procedure in
- 701 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
most criminal cases. In imposing sentence, the court should
state with care the precise terms of the sentence which is
imposed.” We have cited Temple for the proposition that
“where there is a conflict between the record of a judgment and
a verbatim record of the proceedings in open court, the latter
prevails.” State v. Salyers, 239 Neb. 1002, 1005, 480 N.W.2d
173, 176 (1992). Becker also relies on State v. Ernest, 200 Neb.
615, 617, 264 N.W.2d 677, 679 (1978), in which we stated
that Neb. Rev. Stat. §§ 29-2201 and 29-2202 (Reissue 2016)
“relating to allocution indicate clearly that sentencing should
take place in the presence of the defendant” and that “[t]here
is much authority to the effect that a sentence imposed in the
absence of the defendant is generally void.”
The present case is not a case like State v. Ernest, supra,
in which a sentencing hearing was held in the defendant’s
absence, or like State v. Temple, supra, where a subsequent
written order was alleged to differ from that which was pro-
nounced in court. Becker was present at the sentencing hear-
ing, and the court pronounced the length of the sentences and
ordered them to be served consecutively. These critical aspects
of the sentence did not differ in the written order that was filed
the next day.
As noted, at the sentencing hearing at which Becker was
present, the court discussed with the parties the statutory
requirement regarding where the sentences would be served.
The court referred to § 28-106(2), quoted above, and allowed
the parties to comment on the application of the statute. On the
undisputed facts of this case, § 28-106(2) clearly required that
the sentences be served “in the county jail,” which we observe
is not under the jurisdiction of the Department of Correctional
Services (DCS). In the case of misdemeanors, § 28-106(2)
allows for the misdemeanor sentences to be served “in insti-
tutions under the jurisdiction of [DCS]” only when they are
ordered to be served concurrently with or consecutively to a
sentence for a felony conviction. There was no felony con-
viction at issue in this case, and so, the only statutory option
- 702 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
available to the sentencing court was for the sentences to be
served in the county jail as the written order provided.
As stated in State v. Ernest, supra, the requirement for the
defendant’s presence at sentencing stems from §§ 29-2201
and 29-2202. Those statutes focus on the requirement of
allocution, i.e., that “the defendant must be informed by the
court of the verdict of the jury, and asked whether he has
anything to say why judgment should not be passed against
him.” § 29-2201. It also appears to stem from what we have
recognized as a defendant’s “constitutionally protected right
to be present at all critical stages of his or her trial.” State v.
Bjorklund, 258 Neb. 432, 468, 604 N.W.2d 169, 205 (2000),
abrogated on other grounds, State v. Mata, 275 Neb. 1, 745
N.W.2d 229 (2008).
We think those concerns were addressed in this case, because
Becker was at the sentencing hearing and had the opportunity
to argue issues related to the length of sentence, which was
pronounced, as well as the location issue, which was a subject
of discussion.
The record of the July 31, 2018, sentencing hearing shows
that there was a discussion between the court and counsel with
Becker present which included reference to § 28-106(2), a
statute which required the sentences in this case to be served
in the county jail, as the subsequent written order provided.
Unlike previous versions of § 28-106(2), which we discuss
later in our analysis, under the current version of § 28-106(2),
in the absence of a felony, the court had no statutory discretion
to order the sentences to be served in a DCS facility rather than
the county jail. Therefore, there was nothing that Becker could
have argued to convince the county court to order the sentences
to be served anywhere other than the county jail; the commit-
ment order would not have been any different even if the court
had explicitly stated at the hearing that the sentences were to
be served in the county jail. Thus, even if we were to con-
clude that Becker’s presence was required when the sentencing
court announced the location where the sentences were to be
- 703 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
served, no plain error occurred. The absence of an announce-
ment indicating where the sentences were to be served did not
affect Becker’s substantial right. Furthermore, if uncorrected,
it would not result in damage to the integrity, reputation, and
fairness of the judicial process. See State v. Briggs, 303 Neb.
352, 929 N.W.2d 65 (2019). We conclude that the district court
did not err when it concluded that the county court’s failure to
state at the sentencing hearing where the sentences would be
served was not plain error.
Eighth Amendment Proportionality Analysis
Requires That Consecutive Sentences Be
Considered Individually Rather Than
Cumulatively; Individual Sentences
Imposed on Becker Were Not
Disproportionate.
Becker next argues that his sentences violated the Eighth
Amendment because they were disproportionate. We determine
that this inquiry must focus on each individual sentence rather
than the aggregate of all 21 sentences and that, viewed as such,
the sentences were not disproportionate.
[9] The Eighth Amendment prohibits not only barbaric pun-
ishments, but also sentences that are disproportionate to the
crime committed. State v. Jones, 297 Neb. 557, 900 N.W.2d
757 (2017). The U.S. Supreme Court has characterized this as
a “narrow proportionality principle” which does not require
strict proportionality between crime and sentence, but, rather,
forbids only extreme sentences that are grossly disproportion-
ate to the crime. Id. See Ewing v. California, 538 U.S. 11,
123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003) (citing Harmelin v.
Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836
(1991) (Kennedy, J., concurring in part and concurring in judg-
ment; O’Connor and Souter, JJ., join)). See, also, Lockyer v.
Andrade, 538 U.S. 63, 77, 123 S. Ct. 1166, 155 L. Ed. 2d 144
(2003) (“[t]he gross disproportionality principle reserves a con-
stitutional violation for only the extraordinary case”).
- 704 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
Becker’s argument focuses on the fact that he was sen-
tenced to consecutive sentences totaling imprisonment for
more than 10 years in the county jail. He contends it is grossly
disproportionate to be sentenced to more than 10 years’
imprisonment for telephone calls that the victim “didn’t have
to answer.” However, we determine that Eighth Amendment
analysis focuses on individual sentences rather than the
aggregate of sentences ordered to be served consecutively to
one another.
Federal courts have said that the focus of the dispro-
portionality inquiry should be on the individual sentence
rather than the aggregate of sentences. “Eighth amendment
analysis focuses on the sentence imposed for each specific
crime, not on the cumulative sentence.” U.S. v. Aiello, 864
F.2d 257, 265 (2d Cir. 1988). See, also, Pearson v. Ramos,
237 F.3d 881, 886 (7th Cir. 2001) (stating that “it is wrong
to treat stacked sanctions as a single sanction [because]
[t]o do so produces the ridiculous consequence of enabling
a prisoner, simply by recidivating, to generate a colorable
Eighth Amendment claim”); Hawkins v. Hargett, 200 F.3d
1279 (10th Cir. 1999) (stating Eighth Amendment analysis
focuses on sentence imposed for each specific crime, not on
cumulative sentence for multiple crimes); United States v.
Schell, 692 F.2d 672, 675 (10th Cir. 1982) (rejecting Eighth
Amendment challenge and stating, in part, that considering
consecutive sentences would require court to find that “virtu-
ally any sentence, however short, becomes cruel and unusual
punishment” when considered in connection with “sentences
for prior convictions”).
The Court of Appeals for the Second Circuit in U.S. v. Aiello,
supra, and some of the other federal courts cited above relied
on dicta from the U.S. Supreme Court’s decision in O’Neil v.
Vermont, 144 U.S. 323, 12 S. Ct. 693, 36 L. Ed. 450 (1892). In
O’Neil, the defendant was given consecutive sentences total-
ing over 54 years for 307 liquor law infractions. The circuit
court ultimately concluded that it lacked jurisdiction to decide
- 705 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
the question, but in doing so, it noted that the state court had
determined that the significant length of the aggregated sen-
tences did not constitute cruel and unusual punishment. The
circuit court quoted the state court’s reasoning that “‘[i]f [the
defendant] has subjected himself to a severe penalty, it is sim-
ply because he has committed a great many such offen[s]es.’”
Id., 144 U.S. at 331 (quoting State v. O’Neil, 58 Vt. 140, 2 A.
586 (1886)).
State courts have likewise held that the focus should be on
individual sentences rather than the aggregate of sentences.
In State v. Berger, 212 Ariz. 473, 134 P.3d 378 (2006), the
court found no Eighth Amendment violation in a cumulative
sentence of imprisonment for 200 years based on consecutive
10-year sentences imposed for 20 counts of possessing child
pornography. The Arizona court stated that “‘[a] defendant has
no constitutional right to concurrent sentences for two separate
crimes involving separate acts.’” Id. at 479, 134 P.3d at 384,
quoting State v. Jonas, 164 Ariz. 242, 792 P.2d 705 (1990)).
The Berger court also stated that “if the sentence for a particu-
lar offense is not disproportionately long, it does not become
so merely because it is consecutive to another sentence for
a separate offense or because the consecutive sentences are
lengthy in aggregate.” 212 Ariz. at 479, 134 P.3d at 384.
See, also, State v. Hairston, 118 Ohio St. 3d 289, 888 N.E.2d
1073 (2008) (stating proportionality review should focus on
individual sentences rather than on cumulative impact of mul-
tiple sentences imposed consecutively); State v. Buchhold, 727
N.W.2d 816 (S.D. 2007) (reviewing cases holding that Eighth
Amendment review focuses on individual sentences and con-
cluding that imposition of consecutive sentencing is discre-
tionary matter for sentencing court); Wahleithner v. Thompson,
134 Wash. App. 931, 143 P.3d 321 (2006) (stating that except
in extremely rare cases, proportionality review for consti-
tutional purposes is review of each individual sentence, not
their cumulative effect); Close v. People, 48 P.3d 528 (Colo.
2002), abrogated on other grounds, Wells-Yates v. People,
- 706 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
No. 16SC592, 2019 WL 5688119 (Colo. Nov. 4, 2019) (stating
if proportionality review were to consider cumulative effect
of all sentences imposed, result would be possibility that
defendant could generate Eighth Amendment disproportional-
ity claim simply because defendant had engaged in repeated
criminal activity); State v. August, 589 N.W.2d 740 (Iowa
1999) (determining nothing cruel and unusual about punishing
person committing two crimes more severely than person com-
mitting only one crime, which is effect of consecutive sentenc-
ing). But see State v. Ali, 895 N.W.2d 237, 246 (Minn. 2017)
(stating that under U.S. Supreme Court precedent, “issue of
whether consecutive sentences should be viewed separately
when conducting a proportionality analysis under the Eighth
Amendment remains an open question,” particularly with
regard to juvenile offenders, in light of Miller v. Alabama,
567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), and
Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193
L. Ed. 2d 599 (2016)).
[10] We agree with the reasoning of these federal and state
courts, and we therefore conclude that under ordinary Eighth
Amendment analysis, each sentence is considered separately,
not cumulatively, for purposes of determining whether it is
cruel and unusual. Applying the principle to the instant case,
we note that the sentence for each of Becker’s 21 convictions
was for 180 days in county jail, which was within the statu-
tory limits for a Class I misdemeanor. See § 28-106 (maximum
of 1 year’s imprisonment for Class I misdemeanor). Eighth
Amendment analysis generally respects legislative determina-
tions of statutory sentencing limits. See State v. Loschen, 221
Neb. 315, 376 N.W.2d 792 (1985) (stating sentence of impris-
onment within limits of valid statute ordinarily not cruel and
unusual punishment in constitutional sense). We view each
sentence individually and conclude that each individual sen-
tence imposed on Becker was well within the statutory limits
and was not grossly disproportionate in violation of the Eighth
Amendment. We therefore conclude the district court did not
- 707 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
err when it rejected Becker’s Eighth Amendment challenge to
his sentences.
District Court Did Not Err When It
Determined That County Court Did
Not Impose Excessive Sentences.
Becker finally claims that the district court erred when it
failed to rule that the county court imposed excessive sen-
tences. Sitting as an appellate court, the district court’s stan-
dard of review was limited to an examination of the record for
error or abuse of discretion. See State v. Hatfield, ante p. 66,
933 N.W.2d 78 (2019). As explained below, because the county
court did not abuse its discretion when it sentenced Becker, the
district court did not err when it affirmed the county court’s
sentencing order.
[11-13] Becker pled no contest to 21 counts of first offense
violating a protection order. As noted above, Becker’s sen-
tences of imprisonment for 180 days on each count were within
statutory limits. Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discre-
tion in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence to
be imposed. State v. Garcia, 302 Neb. 406, 923 N.W.2d 725
(2019). In determining a sentence to be imposed, relevant fac-
tors customarily considered and applied are 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 amount of violence
involved in the commission of the crime. Id. The appropriate-
ness 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 sur-
rounding the defendant’s life. Id.
Viewing each sentence individually, we find a sentence of
180 days’ imprisonment is well under the maximum potential
- 708 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
sentence of 1 year’s imprisonment for a Class I misdemeanor.
As such, it is difficult to claim that any individual sentence
is excessive. Instead, Becker’s excessive sentence argument
focuses on the fact that the court ordered the 21 sentences
to be served consecutively to one another, resulting in an
aggregate sentence in excess of 10 years. He generally argues
that 10 years’ imprisonment is excessive, because his crimes
were basically telephone calls that the victim “didn’t have to
answer” and his prior criminal history does not show him to be
violent or dangerous. Becker appears to place some blame for
the offenses on the victim, noting that all the calls were placed
from the jail and that the jail calling system notifies the recipi-
ent of the caller’s identity and gives the recipient the option to
refuse the call. He argues that because the victim did not have
to take the calls, she evidently wanted to talk to him.
[14] We note first that generally, it is within a trial court’s
discretion to direct that sentences imposed for separate crimes
be served either concurrently or consecutively. State v. Tucker,
301 Neb. 856, 920 N.W.2d 680 (2018). The cumulative length
of the sentences is due largely to the fact that Becker was
convicted of 21 separate violations. Becker pled no contest
to the 21 charged violations, and he did not challenge the
number of charges on double jeopardy grounds or argue that
the charges constituted a single offense. See State v. Mather,
264 Neb. 182, 646 N.W.2d 605 (2002). We note in this regard
that the record indicates that Becker made hundreds of calls
in violation of the protection order over the course of 21 days
and that the State chose to charge him with just one offense
for each day.
The county court appeared to consider appropriate factors
in making its sentencing decision. At the sentencing hearing
in this case, the county court set forth various factors it had
considered. These factors included Becker’s criminal history,
the nature of the offenses, public safety, the need for punish-
ment, and, in particular, the victim’s impact statement. The
county court also noted Becker’s comments at the sentencing
- 709 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
hearing, which seemed to indicate an unwillingness to accept
responsibility for the offenses; the court noted that his com-
ments “very much went to blame other people rather than to
take personal responsibility and make any promises not to do
that in the future.” Becker stated at the hearing that the victim
“didn’t have to answer my phone calls. She could have blocked
me. . . . But every time I called she answered.” Our review
of the record in this case indicates that the court considered
relevant factors, and the record does not indicate that the court
considered any improper factors.
In connection with his Eighth Amendment argument consid-
ered above, Becker in part argued that consecutive sentences
were disproportionate because they would result in his spend-
ing several years in county jail, a facility which he asserts is
not amenable to incarceration for that period of time. As we
determined above, for purposes of Eighth Amendment analy-
sis, in the absence of specific law to the contrary, sentences
are considered individually, and therefore Becker’s argument
regarding the cumulative time he will spend in county jail was
not relevant to our Eighth Amendment analysis. We therefore
consider Becker’s cumulative argument as part of Becker’s
contention that consecutive sentences were excessive and an
abuse of discretion.
As we have noted, unless prescribed by statute, sentencing
courts are afforded discretion as to whether to impose consecu-
tive sentences. See State v. Tucker, supra. The underlying ratio-
nale behind Becker’s argument against consecutive sentences
is that imposition of consecutive terms is improper, because all
sentences will be served in county jail rather than in institu-
tions under the jurisdiction of DCS which are better suited than
the county jail for incarceration for a longer period of time.
However, as we noted above, the only option under the facts
and the current provisions of § 28-106 was for the sentences
to be served in county jail; the county court had no discre-
tion to order otherwise. Given the sheer volume of Becker’s
convictions for violation of the protection order, and with due
- 710 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. BECKER
Cite as 304 Neb. 693
regard for additional uncharged violations, we do not believe
the sentencing court abused its discretion when it imposed
consecutive terms.
For completeness, we note that prior to amendments in 2015,
Neb. Rev. Stat. § 28-106 (Cum. Supp. 2014) allowed sentences
for misdemeanor sentences to be served in DCS facilities
under certain circumstances even when not made concurrently
with or consecutively to a sentence for a felony conviction.
We also note that Neb. Rev. Stat. § 28-105(2) (Reissue 2016)
requires that felony sentences for maximum terms of impris-
onment for 1 year or more must be served in DCS facilities.
This appears to indicate that there has been a legislative policy
determination that DCS facilities are better suited than county
jails for longer sentences. However, if there are policy reasons
that long periods of incarceration for multiple misdemeanor
convictions could be better served in DCS facilities rather than
in county jails as is now required, that is a determination that
would need to be articulated by the Legislature.
We conclude that the district court did not err when it con-
cluded that the county court did not abuse its discretion in sen-
tencing Becker. We reject this assignment of error.
CONCLUSION
We determine that there was no plain error when the
county court did not announce at the sentencing hearing where
Becker’s sentences would be served. We further determine that
Eighth Amendment analysis ordinarily focuses on individual
sentences rather than the cumulative length of consecutive
sentences and that Becker’s individual sentences were not
grossly disproportionate. We finally determine that because the
county court did not impose excessive sentences, the district
court did not err when it affirmed Becker’s county court con-
victions and sentences. Finding no errors by the district court,
we affirm.
Affirmed.