State v. Lewis ( 2018 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. LEWIS
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
ROBERT S. LEWIS, APPELLANT.
Filed March 27, 2018. Nos. A-17-583, A-17-584.
Appeals from the District Court for Platte County: ROBERT R. STEINKE, Judge. Affirmed.
Timothy P. Matas, Platte County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Joe Meyer for appellee.
RIEDMANN and BISHOP, Judges, and INBODY, Judge, Retired.
BISHOP, Judge.
INTRODUCTION
Robert S. Lewis was convicted by a jury in two separate cases of operating a motor vehicle
during license revocation in the district court for Platte County. Lewis was sentenced to 2 years’
imprisonment and 9 months’ postrelease supervision in each case, with the two sentences to be
served concurrently. Lewis appeals, claiming that the court erred by not giving a jury instruction
on entrapment by estoppel and by imposing excessive sentences. We affirm.
BACKGROUND
Lewis was pulled over in Columbus, Nebraska, on August 25, 2016, because he was
driving a pickup with a trailer that did not have any license plates or in-transit details. Lewis had
only an expired paper copy of a Nebraska operator’s license at the time of the stop, and claimed
he had not yet received the hard copy from the Nebraska Department of Motor Vehicles (DMV).
The officer conducting the stop believed Lewis’ license had previously been revoked as the result
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of a conviction for driving under the influence (DUI). However, Lewis was allowed to leave,
despite the paper copy being expired, after police dispatch confirmed the license number was still
valid. After the stop, the officer investigated further based on his suspicion that Lewis’ license had
been revoked. He discovered the DMV had already initiated its own investigation into Lewis’
license, and learned that Lewis had been issued a second license using a different social security
number and date of birth than was associated with his first license, which had been revoked as a
result of a conviction for DUI, fifth offense. On December 2, after driving away from his residence,
Lewis was arrested pursuant to a warrant issued as a result of Lewis driving with a revoked license
on August 25.
Lewis was charged in two separate cases, CR 16-197 (now appellate case No. A-17-583)
for the driving incident on December 2, 2016, and CR 16-198 (now appellate case No. A-17-584)
for the driving incident on August 25. Both cases were joined for trial. In each case, Lewis was
charged with a single count of operating a motor vehicle during a 15-year revocation. The
information in CR 16-198 also contained a charge for obtaining an operator’s license by fraud, but
as noted below, it appears that charge was no longer at issue at the time of trial.
A jury trial commenced on April 3, 2017. At the outset of the trial, the jury was only
informed of the two charges against Lewis for operating a motor vehicle during revocation, and
the jury only returned a verdict on those two charges. Our record contains the original information
for CR 16-198, and nothing in the record explains the disposition of the charge against Lewis for
obtaining an operator’s license by fraud in that case. Nevertheless, only the two charges for
operating a motor vehicle during revocation were at issue at trial, and they are the only convictions
and sentences relevant to this appeal. We now summarize the evidence relevant to the errors
assigned by Lewis.
Marlene Vetick, the clerk of the district court for Platte County, testified as follows. Exhibit
2 is the transcript from Platte County District Court case No. CR 10-140, in which Lewis was
convicted of “DWI-Fifth Offense” and sentenced on January 12, 2011. Part of that sentence was a
15-year driver’s license revocation, beginning on January 12. Vetick testified that the records
regarding the revocation were provided via an electronic information system to several agencies
across Nebraska, including the DMV. Officer Troy Urkoski, a police officer for the City of
Columbus, testified he worked on that case (CR 10-140), and he identified Lewis as the individual
convicted in that case.
Officer Dale Ciboron, a police officer for the City of Columbus, testified he was on duty
on August 25, 2016. During his shift that day, he observed a pickup pulling a trailer that did not
have any license plates or in-transit details. He conducted a traffic stop of that vehicle. Lewis, the
driver of the pickup, gave Ciboron a vehicle registration and an expired paper copy of a Nebraska
driver’s license; the name on the license was “Robert Scott Lewis” and the birth date was in
October 1962. The paper copy was the type drivers are given for a 30-day period until a hard copy
of the license is sent by the DMV. The paper copy was issued on February 19, 2016, and expired
on March 20. The license number began with the letter “H” (H license). Ciboron asked Lewis
where the hard copy of his license was, and Lewis informed him that he had not yet received it
from the DMV.
Ciboron testified he relayed the information from the paper license to the police dispatcher,
who ran it through the “state files” and found the license was valid. Ciboron issued Lewis a
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“correction card for [a] registration violation” and allowed Lewis to leave. Ciboron testified he did
not issue Lewis a citation for not having a current license because dispatch had informed him the
license was valid.
Ciboron stated that after the traffic stop, he conducted an investigation into the validity of
the license Lewis had shown him. Ciboron was “trying to find a reason for why [the license] was
valid,” because he was aware of Lewis’ past DUI conviction “which would have revoked his
license for 15 years.” Ciboron used the Nebraska Criminal Justice Information System (NCJIS)
and found there were two entries for “Robert Lewis”; “[b]oth were black males, both living here
in Columbus.” The first license was for “Robert S. Lewis,” also listed as “Bobby Lewis,” with a
birth date in October 1959, and an address on 25th Avenue in Columbus; that license number
began with a “V” (V license) and was revoked for 15 years because of a DUI, 5th offense. The
second license was for “Robert Scott Lewis,” with a birth date in October 1962, and an address on
5th Street in Columbus; that was the H license that was listed as valid. Ciboron was also able to
view the signatures and photographs from both licenses. He stated the signatures “looked similar,
if not the same,” and the pictures “could be the same person, just at different points in time in their
[sic] life.”
Ciboron testified that after conducting his investigation, he contacted Lisa Banks, a crime
analyst supervisor on the DMV’s “Fraud Unit.” Banks informed him she was aware of the two
licenses because the DMV’s facial recognition system had “red-flagged” the picture on the second
license as the same person in the first license. Banks informed him that the social security numbers
(which do not appear directly on the license, but are part of the DMV’s record for each license)
and birth dates for the licenses did not match, and she was investigating to see if there was a fraud
issue. Ciboron testified that when he did not hear back again from Banks regarding the conclusion
of her investigation, he proceeded to seek an arrest warrant based on Lewis driving with a revoked
license on August 25, 2016, when Ciboron conducted the traffic stop.
Santiago Velasquez, a police officer for the City of Columbus, testified he was on duty on
December 2, 2016. He was conducting surveillance at Lewis’ residence in Columbus because
Lewis “had an active Platte County warrant for his arrest.” Velasquez stated he surveilled Lewis’
house for multiple hours and did not attempt to serve the warrant at the house because he was not
sure if Lewis was home. Eventually Velasquez observed Lewis get into a vehicle and drive away
from the residence. Velasquez began to follow him in order to conduct a traffic stop. However,
before Velasquez could conduct a traffic stop, Lewis stopped his vehicle, got out, and approached
Velasquez’ vehicle “with his hands up in the air as if asking why [Velasquez] was following him.”
Lewis admitted he was driving, and gave Velasquez a paper copy of a “temporary Nebraska
operator’s license.” Velasquez contacted police dispatch, verified Lewis had an active warrant for
his arrest, and then placed Lewis under arrest. After being transported to the police station, Lewis
told Velasquez about his prior contacts with law enforcement, including a DUI conviction, and
that his prior convictions should not apply to him because “technically” he was convicted under a
different date of birth.
Banks testified that her investigation into the two licenses began when the DMV’s facial
recognition system revealed that a photograph on a driver’s license with the name of “Robert
Lewis” was a possible match to four photographs for a different license. Based on the facial
recognition system results, and her own comparison of the photographs from the two different
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licenses, Banks concluded the two licenses were issued to the same person. Banks said that Lewis
used a different birth date and a different social security number when he applied for the H license
than he had used to obtain the V license. He did not provide any of the information connected to
the V license (social security number and birth date) at the time he applied for the H license, nor
did he inform the DMV that the V license had been revoked. The bottom of the application for a
driver’s license contains a statement instructing applicants to provide truthful and accurate
information throughout the application, and to not withhold “material” information. She stated this
would include a 15-year license revocation because the examiner would not be allowed to issue a
valid license for someone whose license has a “court-ordered suspension.”
Banks further testified that having two social security numbers and two birth dates would
also be “important . . . to disclose.” However, the application does not specifically ask if the
applicant is subject to a license revocation, or has a different social security number or different
birth date. The H license was issued to Lewis on February 19, 2016. Banks stated the H license
would never have been issued had the DMV been aware it was for the same person on the
V license, because the V license was revoked and people in Nebraska are only allowed to have
one license. Banks testified the examiner who issued the H license was unaware of the revoked
V license because driving records are assigned by name, date of birth, and social security number,
and the H license had a different date of birth and social security number and would have appeared
to be for a separate person. Further, the revocation follows the person, not the license.
Banks testified the DMV investigation took “a few months” and involved the “Social
Security Administration.” The H license was cancelled by the DMV after it determined it was
issued to the same person on the V license. The V license was also cancelled. A letter was mailed
to Lewis on November 16, 2016, informing him of the cancellations. That letter was not sent by
certified mail, but it had not been returned back to the DMV prior to the date of Banks’ testimony.
Banks also testified that Lewis contacted her by telephone the Friday preceding trial, and stated
that he knew his V license had been revoked for 15 years. But Lewis told her “it was revoked for
the date of birth of 1959” (which is the birth date on the V license), and therefore Lewis did not
believe “it should be revoked for the date of birth of 1962” (which is the birth date on the
H license). He told her “there was a technicality through the state that his date of birth was not
1959. His date of birth was 1962. And so the revocation should not count towards his 1962 date
of birth.” Banks did not recall whether Lewis told her during that phone call whether he knew back
in February 2016 that his license was revoked.
The jury found Lewis guilty of one count of operating a motor vehicle during 15-year
revocation in each case. A sentencing hearing was held on May 23, 2017, and a “Sentence and
Judgment” order was entered the same day. In each case, Lewis was sentenced to a determinate
sentence of 2 years’ imprisonment and 9 months’ postrelease supervision following his release;
the sentences were to be served concurrently. The court also ordered Lewis’ operator’s license
revoked for a period of 15 years from the date of the sentencing hearing.
Lewis appeals from the judgments entered in both cases; the cases have been consolidated
on appeal.
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ASSIGNMENTS OF ERROR
Lewis assigns, in each case, that the district court erred by (1) not giving his requested jury
instruction on entrapment by estoppel, and (2) imposing an excessive sentence.
STANDARD OF REVIEW
Whether jury instructions are correct is a question of law, which an appellate court resolves
independently of the lower court’s decision. State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318
(2017).
An appellate court reviews the denial of the defense of entrapment by estoppel de novo,
because it is a question of law. State v. Planck, 289 Neb. 510, 856 N.W.2d 112 (2014).
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Dyer, 298 Neb. 82, 902 N.W.2d 687 (2017). A judicial
abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in matters submitted for
disposition. Id.
A determination of whether there are substantial and compelling reasons under
§ 29-2204.02(2)(c) why a defendant cannot effectively and safely be supervised in the community
is within the trial court’s discretion, and a decision to withhold probation on such basis will not be
reversed on appeal absent an abuse of discretion. State v. Dyer, supra.
ANALYSIS
Jury Instruction on Entrapment by Estoppel.
Lewis assigns the district court erred by denying his “request for a jury instruction
regarding entrapment by estoppel.” However, his argument cites to State v. Heitman, 262 Neb.
185, 629 N.W.2d 542 (2001), a case which addresses the affirmative defense of entrapment rather
than entrapment by estoppel. We also note that during the jury instruction conference, Lewis
initially requested the Nebraska pattern jury instruction for entrapment. The court rejected the
requested instruction on the basis that the evidence submitted during the trial did not warrant it.
However, after a short recess was taken, the court stated, “I want to better explain the Court’s
ruling with respect to the defendant’s request for an entrapment instruction and I’m sure that would
be a request for an instruction of an entrapment by estoppel?” Lewis’ counsel responded, “Yeah.”
Accordingly, given that confirmation by defense counsel with the district court, and given the error
as assigned in Lewis’ brief, we consider whether the district court erred by refusing to give a jury
instruction on entrapment by estoppel.
We note that Lewis’ requested jury instruction on entrapment by estoppel was not included
in our appellate record. However, given Lewis’ reference to the “Nebraska pattern jury
instructions,” we consider the Nebraska pattern jury instruction for entrapment by estoppel, NJI2d
Crim. 7.8, which states:
The state must prove beyond a reasonable doubt that the defendant was not
entrapped by estoppel into committing the (here insert crime). Entrapment by estoppel
means that:
(1) the defendant acted in good faith before taking any action; and
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(2) an authorized government official, acting with actual or apparent authority and
who had been made aware of all relevant historical facts, affirmatively told the defendant
that (here describe the conduct of defendant that is criminal) was legal; and
(3) the defendant actually relied on the statements of the government official; and
(4) the defendant’s reliance was reasonable.
See, also, State v. Planck, supra (noting recent recognition of entrapment by estoppel as available
affirmative defense and listing its four elements). The nature of an affirmative defense is such that
the defendant has the initial burden of going forward with evidence of the defense. State v.
Edwards, 286 Neb. 404, 837 N.W.2d 81 (2013). When the defendant has produced sufficient
evidence to raise the defense, the issue is then one which the State must disprove. Id. This is the
appropriate burden of proof for the entrapment by estoppel defense. Id.
In the present matter, the district court described the elements of the defense of entrapment
by estoppel as set forth above, and then stated:
Here, the evidence shows, and it is without dispute, that when [Lewis] applied for
the second license on February 19, 2016, using a different social security number and date
of birth, the DMV was not made aware of all the relevant historical facts, namely, that
[Lewis’] operator’s license and driving privileges had been revoked for a period of 15 years
when he was sentenced for DUI, fifth offense, in this court on January 12, 2011.
Because the DMV was not made aware of all relevant historical facts and because
[Lewis], based on this record, could not have reasonably relied or acted in good faith, the
Court is of the view that an entrapment by estoppel instruction is not warranted.
We agree with the district court. To establish reversible error from a court’s refusal to give
a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a
correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the
appellant was prejudiced by the court’s refusal to give the tendered instruction. State v. McCurry,
296 Neb. 40, 891 N.W.2d 663 (2017). A trial court need not instruct the jury on an issue where the
facts do not justify such an instruction. State v. Planck, supra.
As the district court correctly decided, an instruction on entrapment by estoppel is not
warranted by the evidence in this case. Lewis’ V license was revoked in 2011, and Lewis knew it
was revoked for a period of 15 years. Lewis nevertheless applied for and received a second
operator’s license (H license) in error because a government official was not aware his V license
was revoked due to Lewis’ use of a different social security number and birth date than what was
associated with the V license. Lewis never disclosed in his application for the H license that his
V license had been revoked. Nor did he disclose that he had a prior license issued under a different
social security number and birth date. The issuance of the H license was not an affirmative
statement by a government official that Lewis could now legally drive; rather, it was an error
predicated upon Lewis’ use of a new birth date and social security number without full disclosure
of his other license, birth date, and social security number. Indeed, Banks testified the revocation
of Lewis’ V license would have prevented the issuance of the H license had the DMV been aware
the V license was his, or if DMV had been aware of the change in Lewis’ social security number
and birth date.
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Lewis does not argue on appeal that there was any other evidence of an affirmative
statement by a government official that he could legally drive aside from being “given a license
by the government.” Brief for appellant at 7. However, the mere erroneous issuance of the
H license as a result of the government official’s lack of relevant historical facts does not equate
with an affirmative statement by a government official for purposes of entrapment by estoppel.
For example, in State v. Planck, 289 Neb. 510, 856 N.W.2d 112 (2014), the defendant’s conviction
for reckless driving resulted in a 60-day impoundment of her driver’s license, after which her
license was returned to her in the mail. However, the reckless driving conviction also resulted in
the defendant accumulating 12 or more points in a 2-year period thereby warranting summary
revocation of her license. The DMV sent a letter notifying the defendant that her license was
revoked for 6 months, however, the defendant claimed she did not receive that letter and she
thought her driving privileges had been reinstated when her license was returned to her. She
subsequently was arrested and convicted for driving under revocation. At trial, the defendant was
denied her request for an entrapment by estoppel jury instruction. The Nebraska Supreme Court
held that the defendant was not entitled to the instruction because there was no evidence of an
affirmative statement or affirmative conduct by a government official that the defendant could
legally drive. The defendant’s “assumption that she could legally drive based on the processing of
paperwork and return of her license, in the absence of being specifically told, was not sufficient to
warrant the giving of the instruction.” State v. Planck, 289 Neb. at 522-23, 856 N.W.2d at 121.
Similarly here, we find Lewis failed to adduce any evidence of any affirmative statement
by a government official telling him that he could legally drive upon the issuance of the H license.
The mere issuance of the H license does not constitute such a statement. Lewis was issued the
H license only because he failed to inform the DMV of his V license, and he supplied the DMV
with a new social security number and birth date which was not associated with his V license.
Without having that information, the DMV erroneously issued the H license. Furthermore, Lewis
can hardly argue that he applied for the H license in good faith. After being transported to the
police station in December 2016, Lewis told an officer about his prior contacts with law
enforcement, including a DUI conviction, and asserted that his prior convictions should not apply
to him because “technically” he was convicted under a different date of birth. Lewis was operating
under the mistaken assumption that because he had obtained the H license with a new birth date,
then apparently any convictions tied to his V license should not apply to his H license. And, like
the erroneous assumption made by the defendant in Planck that she could drive simply because
her license had been returned to her, Lewis’ erroneous assumption that he could drive with the
H license simply because it was issued by the DMV in association with a different birth date also
fails to support an instruction for entrapment by estoppel. There is no evidence a government
official affirmatively told Lewis he could obtain the H license and drive with it despite the 15-year
revocation associated with the V license. The district court did not err in denying Lewis’ request
for a jury instruction on entrapment by estoppel.
Excessive Sentences.
Lewis assigns the district court abused its discretion by sentencing him to 2 years’
imprisonment and 9 months’ postrelease supervision in each case, instead of probation or a lesser
term of incarceration. Lewis was convicted of two counts of operating a motor vehicle during
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revocation period, which is a Class IV felony under Neb. Rev. Stat. § 60-6,197.06 (Cum. Supp.
2016). A Class IV felony is punishable by up to 2 years’ imprisonment and 12 months’ postrelease
supervision, a $10,000 fine, or both; imprisonment is not required, but there is a minimum of 9
months’ postrelease supervision if imprisonment is imposed. See Neb. Rev. Stat. § 28-105
(Reissue 2016). An appellate court will not disturb a sentence imposed within the statutory limits
absent an abuse of discretion by the trial court. State v. Wofford, 298 Neb. 412, 904 N.W.2d 649
(2017). Lewis’ sentences are within the statutory limits.
However, Neb. Rev. Stat. § 29-2204.02 (Reissue 2016) requires a sentence of probation
for a Class IV felony conviction, unless certain exceptions apply, and “generally tips the balance
in sentencing for a Class IV felony toward probation.” State v. Baxter, 295 Neb. 496, 506, 888
N.W.2d 726, 734 (2017). Section 29-2204.02 states in relevant part:
(2) If the criminal offense is a Class IV felony, the court shall impose a sentence of
probation unless:
(a) The defendant is concurrently or consecutively sentenced to imprisonment for
any felony other than another Class IV felony;
(b) The defendant has been deemed a habitual criminal pursuant to section 29-2221;
or
(c) There are substantial and compelling reasons why the defendant cannot
effectively and safely be supervised in the community, including, but not limited to, the
criteria in subsections (2) and (3) of section 29-2260. Unless other reasons are found to be
present, that the offender has not previously succeeded on probation is not, standing alone,
a substantial and compelling reason.
(3) If a sentence of probation is not imposed, the court shall state its reasoning on
the record, advise the defendant of his or her right to appeal the sentence, and impose a
sentence as provided in subsection (1) of this section.
Although probation is favored under the statute, the Legislature also provided for
exceptions to this general rule. As relevant here, one of those exceptions is a finding by the court
that substantial and compelling reasons exist as to why Lewis cannot effectively and safely be
supervised in the community. As stated in § 29-2204.02(3) above, and as clarified by State v.
Baxter, supra, when a court decides against probation for a Class IV felony conviction, it is
required to state, on the record, its reasoning rather than just its reasons for its decision. “The court
may fulfill the requirement of § 29-2204.02(3) to state its reasoning on the record by a combination
of the sentencing hearing and sentencing order[.]” State v. Baxter, 295 Neb. at 507, 888 N.W.2d
at 735. And the “court’s determination of substantial and compelling reasons should be based on
a review of the record, including the presentence investigation report and the record of the trial,
and its determination must be supported by such record.” Id. at 508, 888 N.W.2d at 735. Further,
although the phrase in § 29-2204.02(2)(c) which specifies the court must find “‘substantial and
compelling reasons why the defendant cannot effectively and safely be supervised in the
community,’” such phrase “focuses on the characteristics of the defendant.” State v. Dyer, 298
Neb. 82, 89, 902 N.W.2d 687, 693 (2017). The statute also includes consideration of the criteria
in subsections (2) and (3) of § 29-2260, which “includes traditional sentencing criteria[.]” State v.
Dyer, 298 Neb. at 90, 902 N.W.2d at 693.
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Neb. Rev. Stat. § 29-2260 (Reissue 2016) states in relevant part:
(2) Whenever a court considers sentence for an offender convicted of either a
misdemeanor or a felony for which mandatory or mandatory minimum imprisonment is
not specifically required, the court may withhold sentence of imprisonment unless, having
regard to the nature and circumstances of the crime and the history, character, and condition
of the offender, the court finds that imprisonment of the offender is necessary for protection
of the public because:
(a) The risk is substantial that during the period of probation the offender will
engage in additional criminal conduct;
(b) The offender is in need of correctional treatment that can be provided most
effectively by commitment to a correctional facility; or
(c) A lesser sentence will depreciate the seriousness of the offender’s crime or
promote disrespect for law.
(3) The following grounds, while not controlling the discretion of the court, shall
be accorded weight in favor of withholding sentence of imprisonment:
(a) The crime neither caused nor threatened serious harm;
(b) The offender did not contemplate that his or her crime would cause or threaten
serious harm;
(c) The offender acted under strong provocation;
(d) Substantial grounds were present tending to excuse or justify the crime, though
failing to establish a defense;
(e) The victim of the crime induced or facilitated commission of the crime;
(f) The offender has compensated or will compensate the victim of his or her crime
for the damage or injury the victim sustained;
(g) The offender has no history of prior delinquency or criminal activity and has
led a law-abiding life for a substantial period of time before the commission of the crime;
(h) The crime was the result of circumstances unlikely to recur;
(i) The character and attitudes of the offender indicate that he or she is unlikely to
commit another crime;
(j) The offender is likely to respond affirmatively to probationary treatment; and
(k) Imprisonment of the offender would entail excessive hardship to his or her
dependents.
Accordingly, “the appropriate considerations under § 29-2204.02(2)(c), when deciding whether
the defendant can effectively and safely be supervised in the community, include the traditional
reasons that a court is to consider when deciding whether to impose a sentence of imprisonment
or a sentence of probation.” State v. Dyer, 298 Neb. at 90, 902 N.W.2d at 693.
In Lewis’ May 2017 sentencing orders, the district court found that Lewis “is not a fit and
proper person to be sentenced to a term of probation,” and “there are substantial and compelling
reasons why [Lewis] cannot effectively and safely be supervised in the community, and the Court
states its reasoning on the record.” At the sentencing hearing, the court initially noted it had
reviewed Lewis’ presentence investigation report, and observed that Lewis is a divorced father of
two children and that he has a “GED education.” The court further pointed out Lewis’ “extensive
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previous criminal history” which “consumes seven pages of the presentence investigation report.”
The court described Lewis being “in trouble and appearing before the criminal courts of this state
and in Colorado for a span of some 36 years.” (Using Lewis’ birth date of October 1962, Lewis
would have been 54 years old at the time of sentencing.) The court observed a prior conviction
and sentence to prison for kidnapping and first degree sexual assault, as well as Lewis’ conviction
and sentence to a prison term in 2011 for driving under the influence of alcohol, fifth offense.
Further, despite having his operator’s license revoked, Lewis chose to continue to drive, including
continuing to drive after he was initially stopped in August 2016. The court stated:
I was the sentencing Judge in 2011 when your operator’s license was revoked for
15 years. I looked you in the eye then, much as I am looking you in the eye right now today
in these cases, but you continued to drive regardless of your revocation. And you take no
responsibility for your behavior and instead try to blame others. You just told me that there
are quite a few people at fault, but, again, Mr. Lewis, in 2011, I told you you can’t drive
and I revoked your license for 15 years and you drove.
. . . You show no remorse for your behavior in these two cases. Instead you blame
others. And, given this record, the Court is of the opinion that you are not a fit and proper
person to be sentenced to probation in these cases. The Court finds there are substantial
and compelling reasons why [Lewis] cannot effectively and safely be supervised in the
community and those reasons are as follows. First, a sentence of probation would, given
this record, depreciate the seriousness of the offenses for which [Lewis] stands convicted
and would promote disrespect for the law.
Given [Lewis’] extensive previous criminal history and complete lack of remorse
and failure to take any responsibility for his behavior, the risk is substantial, if not
inevitable, that during a period of probation the defendant would engage in additional
criminal conduct. [Lewis] is in need of correctional treatment that can be provided most
effectively by commitment to a correctional facility. [Lewis’] lengthy criminal history
spanning three decades demonstrates a lack of commitment and motivation to abide by
societ[y’s] laws.
Given [Lewis’] character and attitude, lack of remorse and failure to take any
responsibility for his crimes, it is the Court’s view it would be extremely likely that [Lewis]
would engage or commit additional crimes if sentenced to probation.
. . . [I]t is extremely unlikely, in the Court’s view, that [Lewis] would respond
affirmatively to probationary treatment.
As the State notes, the court’s stated reasons are explicitly set forth in § 29-2260(2) as criteria for
a sentence of imprisonment instead of probation. Also, the court’s statements at the sentencing
hearing went beyond simply providing a list of reasons; rather, as set forth in detail above, the
court discussed its reasoning on the record in satisfaction of § 29-2204.02(3).
A district court’s determination of whether there are substantial and compelling reasons
under § 29-2204.02(2)(c) why a defendant cannot effectively and safely be supervised in the
community is within the trial court’s discretion, and a decision to withhold probation on such basis
will not be reversed on appeal absent an abuse of discretion. State v. Dyer, supra. And as the
Nebraska Supreme Court has stated, “the statute does not specifically define the phrase ‘substantial
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and compelling,’” but “both terms have commonly understood meanings and it is within the
court’s discretion to determine that its reasons are weighty enough to be substantial and
compelling.” State v. Baxter, 295 Neb. 496, 508, 888 N.W.2d 726, 735 (2017). The record supports
the district court’s determination, and we conclude the district court did not abuse its discretion
when it determined there were substantial and compelling reasons that probation would not be an
effective and safe sentence.
We next address Lewis’ argument that his sentence is excessive and that a lesser term of
incarceration should have been imposed. When imposing a sentence, the sentencing court is to
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 amount of violence involved in the
commission of the crime. State v. Wofford, 298 Neb. 412, 904 N.W.2d 649 (2017). The
appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing
judge’s observations of the defendant’s demeanor and attitude and all of the facts and
circumstances surrounding the defendant’s life. Id.
Lewis argues that when considering these factors, and in reviewing the presentence
investigation report, “and all of the relevant circumstances of the case, there can be no defensible
reason for a sentence that provided for the maximum punishment for both cases.” Brief for
appellant at 11. Lewis also argues that “the length of his sentence can only be seen as an obstacle
to discourage any rehabilitative needs he may have.” Id. at 12.
However, nothing in the record indicates that the district court failed to consider the
mitigating factors advanced by Lewis or that it did not give adequate weight to such factors when
considered in light of the factors cited by the court to justify the sentences, as detailed earlier. We
find no abuse of discretion by the district court in its sentencing in both cases.
CONCLUSION
For the reasons set forth above, we affirm the judgment of the district court in both cases.
AFFIRMED.
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