State v. Brooks ( 2014 )

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598 22 NEBRASKA APPELLATE REPORTS
trial court did not err in refusing to invalidate the agreement
as unconscionable.
CONCLUSION
Upon our de novo review of the record, we find that Ficke
met his burden of proving both the existence of the oral con-
tract and its terms by clear, satisfactory, and unequivocal evi-
dence. We also conclude that he sufficiently proved that his
performance was solely referable to the oral contract. We deter-
mine that the contract was not unconscionable, and we affirm
the district court’s order.
Affirmed.
State of Nebraska, appellee, v.
Aaron P. Brooks, appellant.
___ N.W.2d ___
Filed December 9, 2014. No. A-14-246.
1. Sentences: Prior Convictions: Appeal and Error. A sentencing court’s deter-
mination concerning the constitutional validity of a prior plea-based conviction,
used for enhancement of a penalty for a subsequent conviction, will be upheld on
appeal unless the sentencing court’s determination is clearly erroneous.
2. 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 the sentencing court abused its discretion in considering and applying
the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed.
3. Sentences: Probation and Parole. It is within the discretion of the trial court
whether to impose probation or incarceration.
4. Prior Convictions: Proof. In a proceeding to enhance a punishment because of
prior convictions, the State has the burden of proving such prior convictions by a
preponderance of the evidence.
5. Sentences: Prior Convictions: Evidence: Proof. On an appeal of a sentence
enhancement hearing, an appellate court views and construes the evidence most
favorably to the State.
6. Statutes: Appeal and Error. Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and unambiguous.
7. Statutes. It is not within the province of a court to read a meaning into a statute
that is not warranted by the legislative language.
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8. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
9. Appeal and Error. An appellate court may, at its option, notice plain error.
10. ____. Plain error must be not only plainly evident from the record but also of
such a nature that to leave it uncorrected would cause a miscarriage of justice or
result in damage to the integrity, reputation, or fairness of the judicial process.
11. Sentences. A sentence is illegal when it is not authorized by the judgment of
conviction or when it is greater or less than the permissible statutory penalty for
the crime.
12. Sentences: Appeal and Error. An appellate court has the power on direct appeal
to remand a cause for the imposition of a lawful sentence where an erroneous one
is pronounced.
Appeal from the District Court for Buffalo County: William
T. Wright, Judge. Affirmed in part, and in part vacated and
remanded for resentencing.
Brandon J. Dugan, Deputy Buffalo County Public Defender,
for appellant.
Jon Bruning, Attorney General, George R. Love, and Mary
C. Byrd, Senior Certified Law Student, for appellee.
Inbody, Chief Judge, and Irwin and Bishop, Judges.
Inbody, Chief Judge.
INTRODUCTION
Aaron P. Brooks appeals his plea-based conviction for
refusal to submit to a chemical test enhanced by two prior con-
victions and the sentence imposed thereon. We reject Brooks’
argument that mitigating facts brought to the attention of
the district court by a defendant pursuant to Neb. Rev. Stat.
§ 60-6,197.02(3) (Cum. Supp. 2014) are used by the court in
determining whether an otherwise valid prior offense should
be used for the purpose of enhancement. However, because
the sentence imposed by the court failed to impose a manda-
tory fine, we vacate Brooks’ sentence and remand the matter
for resentencing.
STATEMENT OF FACTS
Pursuant to a plea agreement, Brooks, who was repre-
sented by counsel, pled no contest to an amended information
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charging him with refusal to submit to a chemical test with
two prior convictions, a Class IIIA felony. Brooks pled to the
underlying charge of refusal to submit, but reserved the right
to contest his prior convictions to be used for the purpose of
enhancement. Pursuant to the plea agreement, the State also
agreed to dismiss a county court case charging Brooks with
driving during revocation and no proof of insurance. The
State provided a factual basis setting forth that on May 31,
2013, at 1 a.m., a Kearney police officer conducted a traffic
stop of Brooks’ vehicle. Upon making contact with Brooks,
who was driving, the officer noticed a strong odor of an
alcoholic beverage coming from Brooks, who also showed
impairment on field sobriety tests. Brooks’ breath alcohol
content was determined to be .17 grams of alcohol per 210
liters of breath on a preliminary breath test. Following the
postarrest chemical test advisement, Brooks refused to sub-
mit to a chemical test. The court found that a factual basis
existed for Brooks’ plea, accepted Brooks’ plea, and found
him guilty of the underlying refusal to submit to a chemical
test charge.
At the enhancement hearing, the State introduced into evi-
dence certified copies of Brooks’ 2001 and 2003 convictions
for second-offense driving under the influence, which certified
copies also established that Brooks was represented by coun-
sel at the time of both his pleas and his sentencings. Brooks’
counsel then sought to submit mitigating circumstances as
part of the enhancement hearing, which he was allowed to
do, requesting that the court take judicial notice of the cur-
rent version of § 60-6,197.02, as well as the driving under the
influence statutes that were in effect at the time of Brooks’
two prior driving under the influence convictions. The court
agreed to take judicial notice of the requested statutes. The
district court found that there had been two prior convictions
that should be counted for the purposes of enhancement and
proceeded to the sentencing hearing. The court stated that it
was considering as mitigation of Brooks’ sentence the fact
that his previous convictions were approximately 12 and 14
years prior to the current offense. The court further stated that
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he would generally send someone with Brooks’ history and
background to prison for 2 to 6 years; however, the court was
going against its usual policy due to the probation officer’s
recommendation of probation and the State’s indication that it
was willing to accept a sentence of probation. The court then
sentenced Brooks to 4 years’ probation with various condi-
tions, including 90 days’ incarceration commencing immedi-
ately with work release allowed. Brooks was ordered to abstain
from alcohol and complete 120 days of continuous alcohol
monitoring. Brooks was also ordered to serve an additional 90
days’ incarceration incrementally, on the recommendation of
probation and the order of the court. Additionally, following
Brooks’ release from jail, he was to serve a 45-day no-driving
period, after which he could obtain an ignition interlock permit
and installation of an ignition interlock device. Brooks’ license
was revoked for a period of 5 years. The court did not order
Brooks to pay a fine.
ASSIGNMENTS OF ERROR
On appeal, Brooks’ assignments of error, consolidated and
restated, are that the trial court erred in failing to consider
mitigating facts before finding that an otherwise valid prior
conviction would be used for enhancement and failing to find
that his prior convictions should not have been used to enhance
his sentence. He also contends that the sentence imposed upon
him was excessive.
Brooks also assigns as error that the district court erred in
failing to articulate its general findings regarding the imposi-
tion of his sentence and the enhancement of his sentence with
specificity and consistency and in making factual findings
that were clearly erroneous. However, Brooks’ brief does not
argue these assignments of error; rather, he merely restates the
assignment of error and refers the court to previous sections in
his brief. An argument that does little more than to restate an
assignment of error does not support the assignment, and an
appellate court will not address it. State v. Filholm, 287 Neb.
763, 848 N.W.2d 571 (2014). Thus, we decline to address these
two assignments of error.
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STANDARD OF REVIEW
[1] A sentencing court’s determination concerning the con-
stitutional validity of a prior plea-based conviction, used for
enhancement of a penalty for a subsequent conviction, will
be upheld on appeal unless the sentencing court’s determina-
tion is clearly erroneous. State v. Mitchell, 285 Neb. 88, 825
N.W.2d 429 (2013); State v. Garcia, 281 Neb. 1, 792 N.W.2d
882 (2011).
[2,3] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion
in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence to
be imposed. State v. Rieger, 286 Neb. 788, 839 N.W.2d 282
(2013); State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
It is within the discretion of the trial court whether to impose
probation or incarceration. State v. Rieger, supra; State v. Wills,
285 Neb. 260, 826 N.W.2d 581 (2013).
ANALYSIS
Enhancement of Sentence.
Brooks contends that the district court erred in determin-
ing that there were valid prior convictions that enhanced his
sentence. We note that Brooks does not argue that his prior
convictions were invalid; instead, Brooks argued to the district
court, and argues on appeal, that under § 60-6,197.02(3), the
district court was allowed to consider mitigating facts before
finding that a particular prior conviction would be used for
enhancement, and that there were sufficient mitigating facts in
his case, e.g., the length of time between the prior convictions
and his current offense, such that his prior convictions should
not have been used to enhance his sentence.
[4,5] In a proceeding to enhance a punishment because of
prior convictions, the State has the burden of proving such
prior convictions by a preponderance of the evidence. State v.
Taylor, 286 Neb. 966, 840 N.W.2d 526 (2013). On an appeal
of a sentence enhancement hearing, we view and construe the
evidence most favorably to the State. Id.
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In the instant case, the State introduced into evidence certi-
fied copies of Brooks’ 2001 and 2003 convictions for second-
offense driving under the influence, which certified copies
also established that Brooks was represented by counsel at the
time of both his pleas and his sentencings. Brooks does not
dispute that these convictions were within the 15-year period
prior to the offense for which the sentence was being imposed
as required by § 60-6,197.02(1)(a) and (c). Further, although
the Nebraska Supreme Court has construed the language of
§ 60-6,197.02(3) as permitting within limits a challenge based
upon denial of the Sixth Amendment right to counsel, Brooks
has not challenged the validity of his previous convictions on
this basis and the records clearly show he was represented by
counsel at the time of previous convictions and the sentenc-
ings thereon. See, State v. Scheffert, 279 Neb. 479, 778 N.W.2d
733 (2010); State v. Louthan, 257 Neb. 174, 595 N.W.2d
917 (1999). Thus, the State made a prima facie showing that
Brooks’ 2001 and 2003 convictions were valid for the purposes
of enhancement.
Once the State makes a prima facie showing that a defend­
ant’s convictions are valid for purposes of enhancement, “[t]he
convicted person shall be given the opportunity to review the
record of his or her prior convictions, bring mitigating facts to
the attention of the court prior to sentencing, and make objec-
tions on the record regarding the validity of such prior convic-
tions.” § 60-6,197.02(3). Brooks claims that this statutory lan-
guage supports his position that a court can use mitigating facts
to determine that an otherwise valid prior conviction should
not be used for enhancement.
[6-8] Statutory language is to be given its plain and ordi-
nary meaning, and this court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are
plain, direct, and unambiguous. State v. Taylor, supra. It is
not within the province of this court to read a meaning into
a statute that is not warranted by the legislative language.
Id. Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the determination made by
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the court below. Id.; State v. Abdulkadir, 286 Neb. 417, 837
N.W.2d 510 (2013).
Pursuant to the statutory language contained in
§ 60-6,197.02(3), the defendant may “bring mitigating facts
to the attention of the court prior to sentencing.” However, the
statute does not provide that the mitigating facts presented by
the defendant would be considered by the court in determining
whether otherwise valid prior convictions would be used to
enhance a defendant’s sentence. Since the statute specifically
provides that the defendant may “bring mitigating facts to the
attention of the court prior to sentencing,” when this language
is given its plain and ordinary meaning, the language is prop-
erly interpreted that the mitigating facts offered by the defend­
ant may be considered by the court in determining the impo-
sition of a sentence appropriate for that particular defend­ant.
Because we reject Brooks’ argument that mitigating facts are
considered by the district court in determining whether an oth-
erwise valid prior conviction should be used for the purposes
of enhancement, we likewise reject his claim that the district
court erred in failing to find that there were sufficient mitigat-
ing facts such that his prior convictions should not have been
used to enhance his sentence.
Excessive Sentence.
Brooks contends that the length of his sentence of 4 years’
probation is excessive as applied to him because of miti-
gating factors including (1) the length of time between his
previous offenses and the current offense, (2) his age, and
(3) his long-term employment as a foreman/superintendent
with a construction company that requires extensive travel
throughout the United States, which employment he contends
he will be forced to change during the time he is on proba-
tion. We do not reach the merits of Brooks’ claims regarding
the excessiveness of his sentence, because we find plain error
with his sentence in that the court failed to impose a manda-
tory fine.
[9,10] An appellate court may, at its option, notice plain
error. Wayne G. v. Jacqueline W., 288 Neb. 262, 847 N.W.2d
85 (2014). Plain error must be not only plainly evident from
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the record but also of such a nature that to leave it uncor-
rected would cause a miscarriage of justice or result in dam-
age to the integrity, reputation, or fairness of the judicial
process. Id.
Brooks was convicted of refusal to submit to a chemical
test enhanced by two prior convictions, and the district court
sentenced him to 4 years’ probation. Brooks’ probation term
is within the statutory sentencing range. See Neb. Rev. Stat.
§ 28-105 (Cum. Supp. 2014) (Class IIIA felonies punishable
by up to 5 years’ imprisonment and/or $10,000 fine). However,
since the court sentenced Brooks to probation, the statutory
requirements of Neb. Rev. Stat. § 60-6,197.03(6) (Cum. Supp.
2012) are also applicable.
Section 60-6,197.03(6) provides that if a person has two
prior convictions and the court places the person on probation,
the court shall, as one of the conditions of probation or
sentence suspension, order that the operator’s license of
such person be revoked for a period of at least five years
but not more than fifteen years from the date ordered by
the court. The revocation order shall require that the per-
son not drive for a period of forty-five days, after which
the court may order that during the period of revocation
the person apply for an ignition interlock permit and
installation of an ignition interlock device . . . . Such
order of probation or sentence suspension shall also
include, as conditions, the payment of a one-thousand-
dollar fine, confinement in the city or county jail for
sixty days, and, upon release from such confinement,
the use of a continuous alcohol monitoring device and
abstention from alcohol use at all times for no less than
sixty days.
In the instant case, the court revoked Brooks’ license for
5 years; required that he not drive for a period of 45 days,
after which he could apply for an ignition interlock permit
and installation of an ignition interlock device; ordered con-
finement for 90 days with an additional 90 days’ confinement
ordered to be served incrementally, on the recommendation of
probation and the order of the court; and ordered him to abstain
from alcohol and complete 120 days of continuous alcohol
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606 22 NEBRASKA APPELLATE REPORTS
monitoring. However, when the court sentenced Brooks to
probation, it was also required by § 60-6,197.03(6) to impose a
$1,000 fine, and it failed to do so.
[11] A sentence is illegal when it is not authorized by the
judgment of conviction or when it is greater or less than the
permissible statutory penalty for the crime. State v. Alba, 13
Neb. Ct. App. 519, 697 N.W.2d 295 (2005).
[12] Inasmuch as this court has the power on direct appeal
to remand a cause for the imposition of a lawful sentence
where an erroneous one is pronounced, see State v. Conover,
270 Neb. 446, 703 N.W.2d 898 (2005), we vacate the sentence
imposed for third-offense refusal to submit to a chemical test
and remand the matter for imposition of the sentence required
by law.
CONCLUSION
We reject Brooks’ claim that mitigating facts brought
to the attention of the court by a defendant pursuant to
§ 60-6,197.02(3) are used by the district court in determining
whether an otherwise valid prior offense should be used for
the purpose of enhancement. Therefore, we affirm his con-
viction. However, because we find that the court imposed an
illegal sentence by failing to impose a statutorily required fine,
we vacate Brooks’ sentence and remand the matter for imposi-
tion of the sentence required by law.
Affirmed in part, and in part vacated
and remanded for resentencing.