State v. Criss , 31 Neb. Ct. App. 765 ( 2023 )

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04/11/2023 09:05 AM CDT
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STATE V. CRISS
Cite as 31 Neb. App. 765State of Nebraska, appellee, v.
Robert Criss III, appellant.
___ N.W.2d ___
Filed April 11, 2023. No. A-22-508.
1. Sentences: Appeal and Error. A sentence imposed within the statutory
limits will not be disturbed on appeal in the absence of an abuse of dis-
cretion by the trial court.
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. The first step in analyzing whether sentences are excessive is
to examine the statutory limits on penalties for such offenses.
4. Sentences: Appeal and Error. In reviewing whether an abuse of
discretion occurred during sentencing, an appellate court determines
whether the sentencing court considered and applied the relevant fac-
tors and any applicable legal principles in determining the sentences to
be imposed.
5. Sentences. The relevant factors for a sentencing judge to consider
when imposing a sentence 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.
6. ____. The sentencing court is not limited to any mathematically applied
set of factors, but the appropriateness of the sentence is necessarily a
subjective judgment that includes the sentencing judge’s observations
of the defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life.
7. Sentences: Appeal and Error. It is not an appellate court’s function to
conduct a de novo review and a reweighing of the sentencing factors in
the record.
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STATE V. CRISS
Cite as 31 Neb. App. 7658. ____: ____. In reviewing sentences, it is enough for an appellate court
to conclude that the trial court’s reasons for the defendant’s sentences
are not clearly untenable and do not unfairly deprive him or her of a
substantial right and just result.
9. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous. Similarly, it is not within the province of the
courts to read meaning into a statute that is not there or to read anything
direct and plain out of a statute.
10. Sentences. Courts have the authority to impose an indeterminate sen-
tence for a misdemeanor conviction as long as the offender is required
to serve his or her time under the jurisdiction of the Department of
Correctional Services.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Rebekah S. Keller for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Pirtle, Chief Judge, and Bishop and Arterburn, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Robert Criss III appeals from his plea-based convictions in
the district court for Douglas County for attempted possession
of a firearm by a prohibited person and carrying a concealed
weapon. He argues that his sentences are excessive. Based on
the reasons that follow, we affirm.
BACKGROUND
On January 12, 2022, Criss was charged by information in
Douglas County District Court with possession of a firearm
by a prohibited person, a Class ID felony. Pursuant to a plea
agreement, Criss pled guilty to count 1, attempted possession
of a firearm by a prohibited person, a Class II felony, and
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STATE V. CRISS
Cite as 31 Neb. App. 765count 2, carrying a concealed weapon, a Class I misdemeanor.
The court accepted Criss’ pleas after receiving the following
factual basis from the State:
On or about December 17th of 2021, law enforcement
conducted a traffic stop on a vehicle in which [Criss]
was a passenger. Officers, as they were approach[ing]
the vehicle, observed [Criss] placing a bag into the
back seat.
Officers observed open containers of alcohol in the
vehicle and then searched the vehicle. When searching
the bag that was placed in the back seat by [Criss], they
located a .22 caliber assault rifle.
Neither party gave a statement, and they did do a DNA
test, which came back showing that the DNA profile
was 41.4 sextillion times more likely to have originated
from . . . Criss, . . . his codefendant, and two unknown,
unrelated individuals than if it had originated from four
unknown, unrelated individuals, supporting the fact that
[Criss] had handled the firearm. All events occurred in
Douglas County, Nebraska.
In addition, Criss stipulated that he had been previously con-
victed of a felony.
The trial court sentenced Criss to 8 to 10 years’ imprison-
ment with the Nebraska Department of Correctional Services
for attempted possession of a firearm by a prohibited per-
son (count 1) and to 365 days’ imprisonment in the Douglas
County Correctional Center for carrying a concealed weapon
(count 2). The court ordered the sentences to run consecutively.
It gave him 186 days of credit for time served on count 2 only.
The court also ordered that Criss would serve his sentence for
count 2 first, and based on his days of credit, he had nearly
completed his incarceration time on count 2.
ASSIGNMENT OF ERROR
Criss assigns that the trial court abused its discretion by
imposing excessive sentences.
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Cite as 31 Neb. App. 765STANDARD OF REVIEW
[1,2] A sentence imposed within the statutory limits will not
be disturbed on appeal in the absence of an abuse of discretion
by the trial court. State v. Morton, 310 Neb. 355, 966 N.W.2d
57 (2021). 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. Id.ANALYSIS
[3] Criss assigns that the trial court imposed excessive
sentences. The first step in analyzing whether sentences are
excessive is to examine the statutory limits on penalties for
such offenses. State v. Starks, 308 Neb. 527, 955 N.W.2d 313(2021). Criss was convicted of attempted possession of a fire-
arm by a prohibited person, a Class II felony. See Neb. Rev.
Stat. §§ 28-201(4)(a) and 28-1206(3)(b) (Cum. Supp. 2022).
A Class II felony is punishable by a maximum sentence of
50 years’ imprisonment and a minimum sentence of 1 year’s
imprisonment. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2022).
Criss was sentenced to 8 to 10 years’ imprisonment for the
Class II felony. His sentence was within the statutory limits.
Criss was also convicted of carrying a concealed weapon,
a Class I misdemeanor. Neb. Rev. Stat. § 28-1202(4) (Cum.
Supp. 2022). A Class I misdemeanor is punishable by a maxi-
mum of 1 year’s imprisonment, a $1,000 fine, or both. There is
no minimum sentence. See Neb. Rev. Stat. § 28-106 (Reissue
2016). Criss was sentenced to 365 days’ imprisonment for
the Class I misdemeanor. This sentence was also within the
statutory limits. Consequently, our analysis of whether Criss’
sentences are excessive is limited to a review for abuse of dis-
cretion. See State v. Starks, supra.[4-6] In reviewing whether an abuse of discretion occurred
during sentencing, an appellate court determines whether the
sentencing court considered and applied the relevant fac-
tors and any applicable legal principles in determining the
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Cite as 31 Neb. App. 765sentences to be imposed. Id. The relevant factors for a sen-
tencing judge to consider when imposing a sentence are the
defend­ant’s (1) age, (2) mentality, (3) education and experi-
ence, (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. Morton, supra. The sentencing court is not
limited to any mathematically applied set of factors, but the
appropriateness of the sentence is necessarily a subjective
judgment that includes the sentencing judge’s observations of
the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life. Id.Criss argues that the trial court failed to adequately account
for mitigating factors, such as his age, substance abuse, mental
health, and lack of education, and instead focused its sentenc-
ing decision primarily on the nature of the offenses.
At the sentencing hearing, the court acknowledged receipt
of the presentence investigation report and heard argument
from counsel. Prior to sentencing Criss, the court noted that
the offenses, which included use of a gun, were serious. It
also acknowledged that Criss was young, but that he had been
given “chances in the past.” The court stated that Criss had
absconded from probation several years earlier and that it did
not think probation was an option. It noted that he was an
active, documented gang member and, according to the pre-
sentence investigation, was a danger to the community and at
high risk to reoffend. The court also stated that it takes a lot of
things into consideration when determining a sentence and that
here, anything less than a period of incarceration would seri-
ously depreciate the seriousness of the offense.
[7,8] Based on the record before us, the trial court took the
appropriate factors into consideration when sentencing Criss
and there is no indication it considered any inappropriate or
improper factors. It is not this court’s function to conduct a
de novo review and a reweighing of the sentencing factors
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Cite as 31 Neb. App. 765in the record. State v. Starks, 308 Neb. 527, 955 N.W.2d 313(2021). Instead, it is enough for us to conclude that the trial
court’s reasons for Criss’ sentences are not clearly untenable
and do not unfairly deprive him of a substantial right and just
result. See id. Accordingly, we conclude the trial court did not
abuse its discretion in the sentences it imposed. Criss’ assign-
ment of error fails.
We note that the State suggests that the trial court erred in
ordering a determinate sentence for Criss’ Class I misdemeanor
conviction. It contends that Neb. Rev. Stat. § 29-2204.02(5)
(Reissue 2016) required the court to impose an indeterminate
sentence for this offense. The statute provides:
For any sentence of imprisonment for a misdemeanor
imposed consecutively or concurrently with a sentence
of imprisonment for a Class III, IIIA, or IV felony for an
offense committed on or after August 30, 2015, the court
shall impose a determinate sentence within the applicable
range in section 28-106 unless the person is also commit-
ted to the Department of Correctional Services in accord­
ance with section 29-2204 for (a) a sentence of imprison-
ment for a Class III, IIIA, or IV felony committed prior to
August 30, 2015, or (b) a sentence of imprisonment for a
Class I, IA, IB, IC, ID, II, or IIA felony.
This court has previously addressed whether § 29-2204.02(5)
applied in a case where the defendant was convicted of a
Class I misdemeanor and Class IB and IIA felonies, but no
Class III, IIIA, or IV felonies. In State v. Meyer, No. A-18-353,
2019 WL 548644 (Neb. App. Feb. 12, 2019) (selected for
posting to court website), the State asserted plain error, sug-
gesting that because the defendant was sentenced for a Class I
misdemeanor along with a term of imprisonment for a Class
IB and IIA felony, he should have received an indeterminate
sentence for the misdemeanor pursuant to § 29-2204.02(5).
This court stated, “Here, [defendant] was sentenced for a
misdemeanor, but there was no corresponding sentence for
a Class III, IIIA, or IV felony.” Id. at *6. Accordingly,
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Cite as 31 Neb. App. 765§ 29-2204.02(5) does not apply to the facts of this case. We
further explained:
According to its plain language, § 29-2204.02(5)
applies when a trial court is imposing consecutive or
concurrent sentences for a misdemeanor along with a
Class III, IIIA, or IV felony. If that is the case, the sen-
tencing court must impose a determinate sentence for the
misdemeanor unless one of the exceptions set forth in the
statute applies.
State v. Meyer, 2019 WL 548644 at *6. We therefore disagreed
with the State’s assertion and found no plain error in the sen-
tences imposed.
[9] Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are
plain, direct, and unambiguous. State v. Vanderford, 312 Neb.
580, 980 N.W.2d 397 (2022). Similarly, it is not within the
province of the courts to read meaning into a statute that is not
there or to read anything direct and plain out of a statute. Id.In the present case, Criss was sentenced for a misdemeanor,
but there was no corresponding sentence for a Class III, IIIA,
or IV felony. Based on the plain and ordinary meaning of the
statutory language in § 29-2204.02(5), the statute does not
apply to the facts of this case because the sentence of impris-
onment for the misdemeanor was not imposed consecutively
or concurrently with a sentence of imprisonment for a Class
III, IIIA, or IV felony. The dissent’s conclusion to the contrary
requires ignoring the plain language in § 29-2204.02(5).
[10] The dissent also states that we have read the language
in § 29-2204.02(5) to mean that before an indeterminate
sentence can be imposed for a misdemeanor, there must be
a conviction for not only a Class I, IA, IB, IC, ID, II, or
IIA felony (high level felony), but a Class III, IIIA, or IV
felony (low level felony) as well. We do not agree with this
characterization. We are simply not reading § 29-2204.02(5)
to say that the trial court was required to impose an
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Cite as 31 Neb. App. 765indeterminate sentence in this instance, since we conclude
the statute does not apply at all. We are not making a broad
assertion that a trial court could never impose an indetermi-
nate sentence for a misdemeanor when it is imposed concur-
rently or consecutively with a Class I, IA, IB, IC, ID, II, or
IIA felony. Courts have the authority to impose an indeter-
minate sentence for a misdemeanor as long as the offender
is required to serve his or her time under the jurisdiction of
the Department of Correctional Services, see State v. Kess,
9 Neb. App. 353, 613 N.W.2d 20 (2000), so if misdemeanor
and Class I, IA, IB, IC, ID, II, or IIA felony sentences are
imposed at the same time, to be served in prison rather than
jail, the trial court could impose an indeterminate sentence.
In this case, we are saying only that it was not plain error
for the court to sentence as it did, especially given its spe-
cific instructions that the misdemeanor sentence was to be
served first. Our holding is more limited than the dissent
suggests. We are saying only that we cannot read out of
§ 29-2204.02(5) the requirement that a sentence of imprison-
ment for a misdemeanor must be imposed consecutively to or
concurrently with a sentence of imprisonment for a Class III,
IIIA, or IV felony before that statutory provision can even be
applied and that therefore, we find the statute inapplicable
to our case. See State v. Yzeta, 313 Neb. 202, 983 N.W.2d
124 (2023) (court will not read meaning into statute that is
not warranted by legislative language or read anything plain,
direct, or unambiguous out of statute).
CONCLUSION
We conclude that the trial court did not abuse its discretion
in sentencing Criss. Accordingly, Criss’ convictions and sen-
tences are affirmed.
Affirmed.
Arterburn, Judge, concurring in part, and in part dissenting.
I concur and join in that part of the majority opinion
which affirms the sentence imposed by the district court as
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Cite as 31 Neb. App. 765to count I, attempted possession of a firearm by a prohibited
person. However, I agree with the contention of the State that
the district court committed plain error by sentencing Criss
to a determinate sentence on count II, carrying a concealed
weapon. Therefore, I respectfully dissent from that portion of
the majority opinion which affirms the district court’s sentence
for that conviction. Based on my reading of § 29-2204.02, the
district court should have imposed an indeterminate sentence
on count II. As such, I believe the sentence on count II should
be vacated and the cause remanded for resentencing on that
count only.
In State v. Wells, 28 Neb. App. 118, 940 N.W.2d 847 (2020),
this court found that the district court erred when it imposed
determinate sentences for five misdemeanor convictions where
those sentences were imposed concurrently with each other
but consecutively to sentences imposed for two Class II felony
convictions and one Class IIIA felony conviction. We found
that the sentences imposed for the misdemeanor convictions
should have been indeterminate sentences. In so doing, we
found that normally, when a sentence for a misdemeanor con-
viction is imposed consecutively or concurrently with one for
a Class IIIA felony, a determinate sentence must be imposed.
We found, however, that Ҥ 29-2204.02(5) provides an excep-
tion to the determinate sentences, because [the defend­ant] was
also committed to the Department of Correctional Services
for sentences of imprisonment on his convictions for his
Class II felonies.” State v. Wells, 28 Neb. App. at 132-33, 940
N.W.2d at 856. Left unresolved by that opinion is whether
§ 29-2204.02(5) requires determinate or indeterminate sen-
tences to be imposed for misdemeanor convictions where
the only felony conviction for which the defendant is being
sentenced is one that requires that an indeterminate sentence
be imposed, as is the case here. Section 29-2204.02(5) again
reads as follows:
For any sentence of imprisonment for a misdemeanor
imposed consecutively or concurrently with a sentence
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Cite as 31 Neb. App. 765of imprisonment for a Class III, IIIA, or IV felony for an
offense committed on or after August 30, 2015, the court
shall impose a determinate sentence within the applicable
range in section 28-106 unless the person is also commit-
ted to the Department of Correctional Services in accord­
ance with section 29-2204 for (a) a sentence of imprison-
ment for a Class III, IIIA, or IV felony committed prior to
August 30, 2015, or (b) a sentence of imprisonment for a
Class I, IA, IB, IC, ID, II, or IIA felony.
For the sake of clarity, I will refer to Class III, IIIA, and
IV felonies as being “low level felonies.” Sentences for these
felonies must be determinate with a period of supervised
release imposed thereafter unless they are imposed concur-
rently or consecutively with a Class I, IA, IB, IC, ID, II, or
IIA felony. See § 29-2204.02(4). I will refer to these offenses
as “high level felonies.” Offenders falling in this category
must receive indeterminate sentences. Under that sentencing
scheme, the lower number of the sentence determines parole
eligibility, with the higher number determining a date for
absolute release. In adopting § 29-2204.02(4), the Legislature
clearly did not want individuals who were being sentenced for
both low level and high level felonies to be placed on both
supervised release (administered by the courts via the proba-
tion office) and parole (administered by the Department of
Correctional Services). The Legislature thus determined that
when sentences are imposed on both low level and high level
felonies, indeterminate sentences are required. This require-
ment also ensures that a minimum and maximum sentence
exists on the low level felonies so that dates for parole eligi-
bility and absolute discharge can be determined as to all con-
victions. Without an indeterminate sentence, the Department
of Correctional Services is without sufficient information to
know when those dates occur.
The majority reads the language of § 29-2204.02(5) to
mean that before an indeterminate sentence could be imposed
on a misdemeanor, there must be not only a conviction
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Cite as 31 Neb. App. 765for a high level felony, but one for a low level felony as well.
That view of the plain language tracks with our wording in
State v. Wells, 28 Neb. App. 118, 940 N.W.2d 847 (2020).
The statute states that offenders receiving misdemeanor sen-
tences running consecutively or concurrently with low level
felony sentences must receive determinate sentences. The stat-
ute states this to be the case unless the person is also sentenced
for a high level felony. So the majority reads the presence of
a low level felony to be a prerequisite before an indeterminate
sentence can be imposed.
I do not read the statute to require this result. I can find
no explanation of why it would be important to have indeter-
minate sentences imposed on misdemeanors only where sen-
tences for both a low level felony and a high level felony are
also imposed but not where there is no low level felony con-
viction. Thus, I agree with the State that the statute should be
read to require the imposition of an indeterminate sentence
any time a misdemeanor sentence is to run concurrent with
or consecutive to a high level felony. Such a reading gives
credence to the overall design of the entirety of § 29-2204.02
where the Legislature’s purpose is to have offenses of all
levels imposed using a unified framework when they are
imposed together. The framework is top down. If a high
level felony is to be sentenced, all low level felonies are to
be sentenced in accord therewith so that parole and absolute
discharge dates can be determined. If the highest grade of
offense is a low level felony, then determinate sentences must
be given so as to establish a date at which time supervised
release will begin.
I believe the State’s position is bolstered by prior law. Prior
to the passage of 2015 Neb. Laws, L.B. 605, all criminal
offenses were to be sentenced in accord with Neb. Rev. Stat.
§ 29-2204(1)(A) and (B) (Cum. Supp. 2014). Under that statu-
tory scheme, the sentencing court had the option to impose
either an indeterminate or a determinate sentence. However,
if a determinate sentence was imposed, the term imposed
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Cite as 31 Neb. App. 765was deemed to be the maximum term, with the minimum
term being the minimum sentence provided by law. So, for
example, if the district court sentenced a person to 40 years’
imprisonment on a Class II felony, the sentence was deemed
to be imprisonment for 1 to 40 years. Parole eligibility would
begin after the person sentenced served half of the minimum
term, with absolute discharge being required once half of the
maximum sentence was served (assuming no loss of good time
credit). Provision was thus made for a determination of parole
eligibility even if a determinate sentence was imposed. See
State v. Schnabel, 260 Neb. 618, 618 N.W.2d 699 (2000).
This court considered two cases which addressed whether the
scheme laid out in in the pre-2014 version of § 29-2204(1)(A)
also applied to misdemeanors. In State v. Alford, 6 Neb. App.
969, 578 N.W.2d 885 (1998), we addressed whether a court
could impose an indeterminate sentence to a county jail. Our
finding is summarized in the later case of State v. Kess, 9 Neb.
App. 353, 613 N.W.2d 20 (2000). Therein we stated:
In State v. Alford, we held that even though § 29-2204
(Reissue 1995) contains no express prohibition against
sentencing a misdemeanant to an indeterminate sen-
tence in county jail, Nebraska generally affords differ-
ent treatment to inmates confined in city and county
facilities from that afforded to those confined to state
facilities under the Department of Correctional Services.
We concluded that because of this disparate treatment,
§ 29-2204 (Reissue 1995) does not authorize the imposi-
tion of an indeterminate sentence to a facility outside the
jurisdiction of the Department of Correctional Services.
Therefore, we implicitly held that § 29-2204 (Reissue
1995) authorizes the imposition of an indeterminate sen-
tence for a misdemeanor if the court sentenced the
defendant within the jurisdiction of the Department of
Correctional Services.
State v. Kess, 9 Neb. App. at 356-57, 613 N.W.2d at 23.
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Cite as 31 Neb. App. 765In Kess, we then affirmed an indeterminate sentence that
was imposed for a misdemeanor conviction where the sentence
was ordered to be served in the Department of Correctional
Services consecutively to an indeterminate sentence for a
felony conviction. Thus, even though we found that the express
language of § 29-2204 did not prohibit a court from impos-
ing an indeterminate sentence for a misdemeanor, the impli-
cations of such a sentence prevented its imposition if the
sentence was not under the jurisdiction of the Department of
Correctional Services.
The current scenario presents similar considerations. The
design of § 29-2204.02 as a whole is to set out param-
eters so that terms of incarceration for multiple offenses
can be served such that the appropriate dates for release can
be determined, whether that be supervised release, if only
determinate sentences are imposed, or release on parole and
absolute release, if indeterminate sentences are imposed. As
a result, it is important that all sentences imposed be either
wholly determinate or wholly indeterminate. It violates the
overall scheme and creates confusion for a determinate sen-
tence to be imposed on a misdemeanor in conjunction with
an indeterminate sentence on a felony. I note that our current
sentencing statutes contain no provision that deems that the
statutory minimum be considered the minimum on a determi-
nate sentence. Determinate sentences only have one number.
Thus, there is no guidance in the current statutory structure
as to how parole would be determined for a person sentenced
to a determinate misdemeanor sentence and an indeterminate
felony sentence.
The majority applies what it sees as the plain language of
§ 29-2204.02(5). While I understand this approach,
[p]enal statutes must be strictly construed and are
considered in the context of the object sought to be
accomplished, the evils and mischiefs sought to be rem-
edied, and the purpose sought to be served. A court
must place on a statute a reasonable construction which
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Cite as 31 Neb. App. 765best achieves the statute’s purpose, rather than a con-
struction which would defeat that purpose.
State v. Godek, 312 Neb. 1004, 1011, 981 N.W.2d 810,
816 (2022).
Here, in my view, the purpose of § 29-2204.02 is only met
by requiring that a misdemeanor sentence be indeterminate
when imposed concurrently or consecutively to an indetermi-
nate sentence given on a high level felony, whether or not a
low level felony is also being sentenced in conjunction there-
with. Therefore, I would vacate the sentence and remand the
cause for resentencing on count II only. I respectfully dissent
from the majority’s decision as to count II.