State v. Earnest ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/01/2023 09:08 AM CST
- 527 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. EARNEST
Cite as 315 Neb. 527State of Nebraska, appellee, v.
Anthony W. Earnest, appellant.
___ N.W.2d ___
Filed December 1, 2023. No. S-23-243.
1. Administrative Law: Statutes: Appeal and Error. The meaning and
interpretation of statutes and regulations are questions of law which an
appellate court resolves independently of the lower court’s conclusion.
2. Sentences: Appeal and Error. A sentence imposed within statutory
limits will not be disturbed on appeal absent an abuse of discretion by
the trial court.
3. ____: ____. 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.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed.
Matthew K. Kosmicki for appellant.
Michael T. Hilgers, Attorney General, and P. Christian
Adamski for appellee.
Heavican, C.J., Miller‑Lerman, Cassel, Funke, Papik,
and Freudenberg, JJ.
Papik, J.
Anthony W. Earnest pled no contest to charges of driving
under the influence (DUI) causing serious bodily injury and
third degree assault. In this appeal, Earnest challenges his sen-
tences in various respects. He first argues that the district court
erred by failing to consider his ability to pay a $10,000 fine.
- 528 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. EARNEST
Cite as 315 Neb. 527In addition, he claims that the district court sentenced him
under misunderstandings of the relevant law and otherwise
imposed excessive sentences. We find no prejudicial error by
the district court and therefore affirm.
BACKGROUND
Charges and Pleas.
The State initially charged Earnest with two counts of
DUI causing serious bodily injury. The charges arose out
of a two‑vehicle accident on December 24, 2021. After the
charges were filed, Earnest was released on bond under
the conditions that he neither operate a vehicle nor possess or
consume alcohol.
The State later moved to revoke Earnest’s bond. In its
motion, the State alleged that in December 2022, police had
attempted to stop Earnest for a traffic violation, but he accel-
erated his vehicle in the opposite direction and then aban-
doned his vehicle and fled on foot. When he was eventually
apprehended and arrested, the State alleged, he submitted to a
blood test that revealed a blood alcohol concentration above
the legal limit. Earnest did not dispute the State’s allegations,
and the district court revoked his bond.
Earnest and the State eventually reached a plea agreement.
Pursuant to the plea agreement, Earnest pled no contest to
an amended information that charged him with one count
of DUI causing serious bodily injury and one count of third
degree assault.
At Earnest’s plea hearing, the district court asked the State
to provide a factual basis for the charges. The prosecutor
stated that on December 24, 2021, while Earnest was under
the influence of alcohol, he drove his vehicle across a raised
median and crashed head on with another vehicle traveling in
the opposite direction and carrying four passengers. Two of
those passengers suffered serious injuries requiring surgery.
Following the accident, law enforcement located numerous
open containers of alcoholic liquor inside Earnest’s vehicle,
- 529 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. EARNEST
Cite as 315 Neb. 527and Earnest submitted to a blood test that revealed a blood
alcohol concentration of .292 grams of alcohol per 100 mil-
liliters of blood. Earnest did not object to the factual basis pro-
vided by the State. The district court accepted Earnest’s pleas
and set the matter for a sentencing hearing.
Sentencing.
At the sentencing hearing, the district court said the follow-
ing prior to pronouncing the sentence:
In this particular case there was a plea agreement. You
did receive the benefit of that plea agreement. But what I
believe the law allows for the Court when I took a look at
the statutes that you were charged under, the DUI causing
serious bodily injury provides for a 15‑year revocation
of your license, with no opportunity for interlock, and
no opportunity for impounding. It’s just simply revoking
your license for 15 years. There will be no way for you to
be able to drive a vehicle legally for 15 years.
Also, with a DUI serious bodily injury conviction,
it has to be separate and apart from any other count or
conviction within that same information. So, necessar-
ily any sentence you receive on Count I, which was the
DUI serious bodily injury, Count II will run consecutive
to that.
I am really at a loss for words as to what I could say
to you to encourage you to avail yourself of the resources
to help you live a sober life. Or at the very least, if you
don’t, don’t get behind the wheel of a car and endanger
the rest of us. Other than to say I don’t have enough trust
in you, so I will keep you away from the community for
as long as I can.
For Earnest’s conviction of DUI causing serious bodily
injury, the district court sentenced Earnest to 3 years’ impris-
onment, 18 months’ post‑release supervision, a $10,000 fine,
and a 15‑year license revocation. For the conviction of third
degree assault, the district court sentenced Earnest to 1 year’s
- 530 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. EARNEST
Cite as 315 Neb. 527imprisonment and a $1,000 fine. The district court ordered
the sentences of imprisonment to be served consecutively to
one another.
Earnest filed a timely appeal.
ASSIGNMENTS OF ERROR
Earnest assigns that the district court erred (1) by imposing
a $10,000 fine without first considering his ability to pay and
(2) by imposing excessive sentences.
STANDARD OF REVIEW
[1] The meaning and interpretation of statutes and regulations
are questions of law which an appellate court resolves indepen-
dently of the lower court’s conclusion. State v. Alkazahy, 314
Neb. 406, 990 N.W.2d 740 (2023).
[2,3] A sentence imposed within statutory limits will not be
disturbed on appeal in the absence of an abuse of discretion
by the trial court. Id. 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. Id.ANALYSIS
Ability to Pay Fine.
Earnest first argues that the district court erred by imposing
a $10,000 fine for his DUI causing serious bodily injury con-
viction without first considering whether he was able to pay
such a fine. He argues that under Neb. Rev. Stat. § 29‑2206
(Cum. Supp. 2022), the district court could only impose a fine
if it first determined that he had the ability to pay it.
Section 29‑2206(1)(a) provides in part:
In all cases in which courts or magistrates have now or
may hereafter have the power to punish offenses, either in
whole or in part, by requiring the offender to pay fines or
costs, or both, such courts or magistrates may make it a
part of the sentence that the party stand committed and be
imprisoned in the jail of the proper county until the fines
- 531 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. EARNEST
Cite as 315 Neb. 527or costs are paid or secured to be paid or the offender
is otherwise discharged according to law if the court or
magistrate determines that the offender has the financial
ability to pay such fines or costs.
Earnest apparently reads the above‑quoted portion of
§ 29‑2206 to require sentencing courts to inquire into a
criminal defendant’s finances prior to imposing any fine. This
reading, however, overlooks that the obligation to consider a
defendant’s ability to pay discussed in § 29‑2206 applies to
instances in which courts “make it a part of the sentence that
the party stand committed and be imprisoned in the jail of
the proper county until the fines or costs are paid or secured
to be paid or the offender is otherwise discharged accord-
ing to law.” The district court did not do that here. We thus
conclude that § 29‑2206 did not require the district court to
consider Earnest’s ability to pay before it imposed fines in
this case.
Although Earnest has not shown that the district court was
obligated to consider his ability to pay a fine before imposing
its sentences in this case, we observe that other Nebraska stat-
utes provide avenues for criminal defendants to obtain relief
from fines they are unable to pay after fines are imposed.
One statute, Neb. Rev. Stat. § 29‑2412 (Cum. Supp. 2022),
provides that persons who have been arrested or brought into
custody for failure to pay fines are entitled to a prompt hear-
ing, the purpose of which is to determine their ability to pay
such fines. See § 29‑2412(1)(a). If, after that hearing, the court
determines the person is unable to pay the fines or costs, the
court is generally required to enter an order discharging the
person of the fines. See § 29‑2412(1)(c). Another statute, Neb.
Rev. Stat. § 29‑2208 (Cum. Supp. 2022), permits individuals
who have been ordered to pay fines, but have not yet been
arrested or brought into custody for failure to pay, to also
obtain a prompt hearing to determine their financial ability
to pay criminal fines. Like § 29‑2412, § 29‑2208 generally
requires the court to discharge individuals of fines if the court
- 532 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. EARNEST
Cite as 315 Neb. 527determines after the hearing that they are unable to pay. See
§ 29‑2208(4)(a). Whether Earnest might be entitled to relief
under these statutes is not before us in this appeal.
Excessive Sentences.
In addition to the $10,000 fine, Earnest also challenges
other aspects of his sentences. Although he concedes that his
sentences were within statutory limits, he argues that the dis-
trict court nonetheless abused its discretion in sentencing him.
He contends that in sentencing him, the district court mis-
understood the relevant law in some respects and also failed
to consider certain factors that weighed in favor of a more
lenient sentence.
In support of his argument that the district court misun-
derstood the relevant law, Earnest points to statements made
by the district court prior to pronouncing his sentences. He
contends that the district court erroneously stated that it was
required to revoke his driver’s license for 15 years with no
possibility of the issuance of an ignition interlock permit. He
also draws our attention to the district court’s statement that
it was required to impose consecutive sentences for his DUI
causing serious bodily injury and third degree assault convic-
tions. Earnest argues that no law required those sentences to
be served consecutively. As we will explain, we discern no
prejudicial error in the district court’s statements.
First, we do not understand the district court to have stated
that it was legally precluded from issuing an ignition inter-
lock permit. As set forth above, the district court prefaced its
remarks regarding license revocation and ignition interlock
permits as “what I believe the law allows” (emphasis sup-
plied). We thus understand the district court to have been stat-
ing that it was permitted to revoke Earnest’s driver’s license
for 15 years without issuing an ignition interlock permit.
Earnest does not dispute that the district court had the authority
to revoke his license for 15 years without issuing an ignition
interlock permit.
- 533 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. EARNEST
Cite as 315 Neb. 527As for the district court’s statements regarding consecutive
sentences, we are not aware of any authority that would have
required the district court to order that Earnest’s sentences run
consecutively. And, on this point, the State agrees with Earnest
that the district court was mistaken in its belief that it was
required to impose consecutive sentences. Earnest thus appears
to be correct that the district court misunderstood the law to
require consecutive sentences.
Generally, when the law gives a trial court discretion to
determine if sentences will be served concurrently or con-
secutively but the trial court erroneously concludes that it
is required to impose consecutive sentences, we remand
for resentencing. See, e.g., State v. Berney, 288 Neb. 377,
847 N.W.2d 732 (2014). But a remand is generally required
because, without it, we have no way to know whether the dis-
trict court would impose concurrent or consecutive sentences
if it correctly understood its discretion. See id. at 384, 847
N.W.2d at 737 (remanding for resentencing in case where dis-
trict court erroneously believed consecutive sentences were
required because appellate court could not “determine from
the record” whether district court would have imposed con-
current sentences if it correctly understood law). In this case,
however, the trial court’s sentencing remarks leave no doubt
that it would have imposed consecutive sentences even if it
had understood that concurrent sentences were permissible.
As noted above, the district court explained that it fashioned
its sentences to keep Earnest “away from the community as
long as I can.” Because Earnest was not prejudiced by the
district court’s erroneous belief that it was required to impose
consecutive sentences, there is no reason to remand for resen-
tencing in this case.
This leaves only Earnest’s argument that the district court
abused its discretion by failing to consider factors that weighed
in favor of a more lenient sentence. Here, Earnest argues that
the district court failed to consider his age, his criminal his-
tory, and his willingness to enter into a plea agreement. Prior
- 534 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. EARNEST
Cite as 315 Neb. 527to sentencing, however, the district court specifically referred
to Earnest’s age, his relatively minor criminal history, and the
plea agreement. The district court may not have specifically
referred to other factors that Earnest contends were relevant
in his case, but we have rejected the notion that a sentencing
court is required to articulate on the record that it has consid-
ered each sentencing factor and to make specific findings as
to the facts that bear on each of those factors. See, e.g., State
v. Thomas, 311 Neb. 989, 977 N.W.2d 258 (2022).
To the extent Earnest is arguing that the district court
abused its discretion in its weighing of various sentencing
factors, we disagree. While some of the factors Earnest identi-
fies may have weighed in favor of a more lenient sentence,
others did not. For example, Earnest’s charged conduct caused
serious injuries to multiple people, and he drove under the
influence again while out on bond in this case. In light of
these considerations and mindful that it is not our function to
conduct a de novo review of the record to determine what sen-
tence we would impose, see State v. Pauly, 311 Neb. 418, 972
N.W.2d 907 (2022), we cannot say the district court abused its
discretion in sentencing Earnest.
CONCLUSION
Because we find no prejudicial error on the part of the dis-
trict court, we affirm.
Affirmed.
Stacy, J., participating on briefs.