State v. Felix ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/03/2018 08:10 AM CDT
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STATE v. FELIX
Cite as 26 Neb. App. 53State of Nebraska, appellant, v.
Olajuwon A. Felix, appellee.
___ N.W.2d ___
Filed June 26, 2018. No. A-17-1062.
1. Sentences: Appeal and Error. When reviewing a sentence within the
statutory limits, whether for leniency or excessiveness, an appellate
court reviews for an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
3. Sentences. A sentencing court is not limited in its discretion to any
mathematically applied set of factors.
4. ____. 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.
5. ____. A sentencing court must have some reasonable factual basis for
imposing a particular sentence.
6. Sentences: Appeal and Error. In determining whether a sentence is
excessively lenient, an appellate court considers the following factors:
(1) the nature and circumstances of the offense; (2) the history and
characteristics of the defendant; (3) the need for the sentence imposed
to afford deterrence; (4) the need for the sentence to protect the public
from further crimes of the defendant; (5) the need for the sentence to
reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense; (6) the need for the sentence
to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective man-
ner; and (7) any other matters appearing in the record that the appellate
court deems pertinent.
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STATE v. FELIX
Cite as 26 Neb. App. 537. ____: ____. When reviewing sentences for excessive leniency, an appel-
late court does not review the sentence de novo and the standard is not
what sentence it would have imposed.
Appeal from the District Court for Douglas County: M arlon
A. Polk, Judge. Affirmed.
Donald W. Kleine, Douglas County Attorney, and James M.
Masteller for appellant.
Thomas C. Riley, Douglas County Public Defender, and
Cindy A. Tate for appellee.
R iedmann, Bishop, and Welch, Judges.
R iedmann, Judge.
INTRODUCTION
The State, through the Douglas County Attorney, appeals
from a district court sentencing order after Olajuwon A. Felix
entered pleas to five felony charges. The State argues that the
sentences were excessively lenient. Finding no abuse of dis-
cretion, we affirm.
BACKGROUND
Felix was originally charged with count 1, manufacturing,
distributing, or possession with intent to distribute marijuana;
count 2, manufacturing, distributing, or possession with intent
to distribute cocaine; count 3, manufacturing, distributing, or
possession with intent to distribute methamphetamine; count
4, possession with intent to distribute a Schedule IV or V con-
trolled substance; count 5, possession with intent to distribute a
Schedule IV or V controlled substance; count 6, possession of
a deadly weapon by a prohibited person; count 7, possession of
a deadly weapon by a prohibited person; and count 8, posses-
sion of a deadly weapon by a prohibited person. Pursuant to a
plea agreement with the State, Felix agreed to plead no contest
to an amended count 2, which changed the class of crime to a
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STATE v. FELIX
Cite as 26 Neb. App. 53Class II felony, as well as to counts 3 and 6 through 8 as origi-
nally charged. Counts 1, 4, and 5 were dismissed.
According to the factual basis provided by the State at the
plea hearing, a task force officer working for the Bureau of
Alcohol, Tobacco, Firearms and Explosives utilized a confi-
dential informant who made contact with Felix. On August
2, 2016, the informant met Felix in the parking lot of a gas
station and purchased 27.3 grams of cocaine and 1.7 grams of
methamphetamine from Felix. On August 8, the informant met
Felix in a parking lot and purchased a “Charter Arms .38 spe-
cial revolver” from Felix. On August 10, the informant again
met with Felix in a parking lot and purchased a “Kel-Tec 9 mil-
limeter semiautomatic handgun” from him. On August 18, the
informant again met with Felix in a parking lot and Felix sold
him a “Sig Sauer .45 caliber handgun.” At all relevant times,
Felix was a prohibited person by virtue of a previous felony
conviction in April 2015. The district court accepted Felix’s
pleas and found him guilty.
At sentencing, Felix argued that the court should impose
the mandatory minimum sentence of 3 years’ imprisonment
for the weapons convictions and asked that they run concur-
rently. He acknowledged that the convictions resulted from
three separate offenses, but argued that the offenses occurred
before his last prison sentence—he had been released from
prison for just 6 days before he was arrested on the cur-
rent charges.
The State noted that Felix accepted the opportunity to plead
to five felony charges after he was originally charged with
eight felonies. The State argued that not only did Felix sell
cocaine and methamphetamine, but he also sold 59 Xanax pills
to the informant, and that Felix contacted the informant on
three separate occasions to sell him three separate guns. The
State emphasized that Felix knew he was a convicted felon
but chose to deal drugs and guns and argued that the sentences
should not run concurrently because the offenses occurred on
separate dates and involved separate guns.
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STATE v. FELIX
Cite as 26 Neb. App. 53The court reviewed the presentence investigation report and
then sentenced Felix to 1 to 1 year’s imprisonment on count 2,
1 to 1 year’s imprisonment on count 3, 3 to 3 years’ imprison-
ment on count 6, 3 to 3 years’ imprisonment on count 7, and 3
to 3 years’ imprisonment on count 8. The sentences on counts
2 and 3 were to run concurrently, and the sentences on counts
6 through 8 were to run concurrently, but the terms were to run
consecutive to each other. In other words, Felix was sentenced
to 1 to 1 year’s imprisonment and a consecutive term of 3 to 3
years’ imprisonment, for a total of 4 to 4 years’ imprisonment,
which includes the mandatory minimum of 3 years. He also
received credit for 206 days served.
The State requested and received the Attorney General’s
approval to appeal the sentences as excessively lenient pursu-
ant to Neb. Rev. Stat. §§ 29-2320 and 29-2321 (Reissue 2016).
ASSIGNMENT OF ERROR
The State assigns that the district court abused its discretion
by imposing excessively lenient sentences.
STANDARD OF REVIEW
[1,2] When reviewing a sentence within the statutory lim-
its, whether for leniency or excessiveness, an appellate court
reviews for an abuse of discretion. State v. Parminter, 283
Neb. 754, 811 N.W.2d 694 (2012). A judicial abuse of discre-
tion exists only when the reasons or rulings of a trial judge are
clearly untenable, unfairly depriving a litigant of a substantial
right and denying a just result in matters submitted for dispo-
sition. Id.ANALYSIS
Pursuant to a plea agreement, Felix was convicted of two
counts of manufacturing, distributing, or possession with intent
to distribute a controlled substance, which is a Class II felony.
See Neb. Rev. Stat. § 28-416 (Reissue 2016). Class II felonies
are punishable by 1 to 50 years’ imprisonment. Neb. Rev. Stat.
§ 28-105 (Reissue 2016). Felix was also convicted of three
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STATE v. FELIX
Cite as 26 Neb. App. 53counts of possession of a weapon by a prohibited person,
which is a Class ID felony. See Neb. Rev. Stat. § 28-1206(3)(b)
(Reissue 2016). This offense carries a mandatory minimum
sentence of 3 years’ imprisonment up to a maximum of 50
years’ imprisonment. § 28-105. Therefore, Felix’s sentences
come within the statutory limits, and we review them for an
abuse of discretion.
[3-5] A sentencing court is not limited in its discretion to
any mathematically applied set of factors. State v. Parminter,
supra. The appropriateness of a sentence is necessarily a sub-
jective judgment and includes the sentencing judge’s observa-
tion of the defendant’s demeanor and attitude and all the facts
and circumstances surrounding the defendant’s life. Id. But the
court must have some reasonable factual basis for imposing a
particular sentence. Id.
[6] In determining whether the sentence is excessively
lenient, we consider the following factors: (1) the nature and
circumstances of the offense; (2) the history and characteris-
tics of the defendant; (3) the need for the sentence imposed to
afford deterrence; (4) the need for the sentence to protect the
public from further crimes of the defendant; (5) the need for
the sentence to reflect the seriousness of the offense, to pro-
mote respect for the law, and to provide just punishment for the
offense; (6) the need for the sentence to provide the defendant
with needed educational or vocational training, medical care,
or other correctional treatment in the most effective manner;
and (7) any other matters appearing in the record that the
appellate court deems pertinent. State v. Parminter, supra. See
Neb. Rev. Stat. § 29-2322 (Reissue 2016).
At first blush, we agree that Felix’s sentences appear lenient.
He was convicted of two Class II felonies and three Class ID
felonies, which stemmed from four separate incidents. He
faced up to 250 years’ imprisonment; yet, he received the
minimum period of incarceration for each count and concurrent
sentences for four of his crimes. However, keeping in mind our
standard of review and considering the applicable case law, we
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STATE v. FELIX
Cite as 26 Neb. App. 53cannot find that the sentencing court abused its discretion in
the sentences imposed.
Generally, when the Nebraska appellate courts have con-
cluded that a sentence is excessively lenient, the defendant’s
present crimes and criminal history display significant vio-
lence or the defendant has committed multiple driving under
the influence offenses and received probation, which has been
determined to be insufficient to protect the safety of the public.
See, e.g., State v. Parminter, 283 Neb. 754, 811 N.W.2d 694(2012); State v. Moore, 274 Neb. 790, 743 N.W.2d 375 (2008);
State v. Rice, 269 Neb. 717, 695 N.W.2d 418 (2005); State v.
Fields, 268 Neb. 850, 688 N.W.2d 878 (2004); State v. Hatt,
16 Neb. App. 397, 744 N.W.2d 493 (2008). See, also, State v.
Hamik, 262 Neb. 761, 635 N.W.2d 123 (2001); State v. Silva, 7
Neb. App. 480, 584 N.W.2d 665 (1998).
None of those factors are present here. We recognize that
Felix has an extensive history of failing to follow the law,
which is particularly evidenced by numerous charges of driv-
ing during suspension and failure to appear. None of his
charges have been violent, however. He has three prior fel-
ony convictions, for which he was sentenced to terms of
incarceration.
In 2014, he was convicted of an amended charge of theft
by receiving stolen property, a Class IV felony, and sentenced
to 270 days’ incarceration. By virtue of this felony conviction,
Felix was prohibited from possessing weapons. Four months
after his release from incarceration, however, police found him
in possession of a handgun and marijuana. In August 2014,
police officers observed Felix and two other men sitting out-
side an abandoned residence. When the officers approached,
all three men began to walk away, and the officers observed
Felix holding the front of his waistband under his shirt. An
officer told Felix to stop and show his hands, but Felix took off
running. The officer gave chase, and as Felix was being “taken
to the ground,” he observed Felix toss a firearm into the tree
line. Marijuana was also located in Felix’s pants pocket. The
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STATE v. FELIX
Cite as 26 Neb. App. 53firearm was located and found to be loaded and unregistered.
Felix was convicted of an amended charge of attempted pos-
session of a firearm by a prohibited person, a Class II felony,
and sentenced to 2 years’ imprisonment. For both of these fel-
ony convictions, Felix underwent presentence investigations,
and at both times, he denied responsibility for his crimes and
was assessed to be a high risk for rearrest.
In 2016, Felix was convicted of felony flight to avoid arrest
and leaving the scene of a property damage accident. Charges
of felony possession of a controlled substance and “Operating
During Suspension” were dismissed. Felix was sentenced to 1
year’s incarceration and 12 months’ postrelease supervision.
Six days after his release from incarceration, however, he was
arrested for the current offenses, which were the result of inci-
dents that occurred before he began his 1-year sentence.
Accordingly, the record demonstrates that Felix has a his-
tory of breaking the law and failing to take responsibility for
his actions. According to the presentence investigation report
for the present convictions, however, Felix was assessed to be
a high risk for rearrest but was a low risk for violence, anti-
social behavior, aggressiveness, and stress coping; he has no
drug or alcohol issues; and he has accepted responsibility for
his actions. In a letter to the court included in the presentence
investigation report, Felix admitted that he was the “middle
man” selling drugs and guns in order to earn money to help his
family. Additionally, and significantly, as noted above, his his-
tory does not suggest the level of aggressiveness and violence
present in cases such as State v. Fields, 268 Neb. 850, 688
N.W.2d 878 (2004), and State v. Silva, 7 Neb. App. 480, 584
N.W.2d 665 (1998).
Moreover, we recognize that the State has a public safety
interest in deterring repeat felons and that the purpose of stat-
utes prohibiting the possession of firearms by convicted felons
is to limit the possession of firearms by persons who, by their
past commission of certain specified serious felonies, have
demonstrated a dangerous disregard for the law and present a
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STATE v. FELIX
Cite as 26 Neb. App. 53potential threat of further or future criminal activity. See, State
v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015); State v.
Comeau, 233 Neb. 907, 448 N.W.2d 595 (1989).
But this is not a case where the defendant received proba-
tion and public safety remains at risk. The sentences imposed
on Felix in the present case represent his longest period of
incarceration. In addition, he must serve 3 of the 4 years of his
prison sentence as a mandatory minimum for which he is not
eligible to earn good time credit. See State v. Russell, 291 Neb.
33, 863 N.W.2d 813 (2015) (good time credit not allowed until
full amount of mandatory minimum term of imprisonment has
been served).
[7] Although Felix’s history and the nature and circum-
stances of the present offenses certainly could have supported
a longer term of incarceration, when reviewing sentences for
excessive leniency, we do not review the sentence de novo and
the standard is not what sentence we would have imposed. See
State v. Antoniak, 16 Neb. App. 445, 744 N.W.2d 508 (2008).
Keeping this standard in mind, we conclude that the sentences
imposed do not constitute an abuse of discretion. We there-
fore affirm.
CONCLUSION
We conclude that the district court did not abuse its discre-
tion in the sentences imposed. Accordingly, we affirm.
A ffirmed.