State v. Brown ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    07/06/2018 01:10 AM CDT
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    STATE v. BROWN
    Cite as 
    300 Neb. 57
    State of Nebraska,       appellee, v.
    Darwin E. Brown,        appellant.
    ___ N.W.2d ___
    Filed May 25, 2018.   Nos. S-17-442 through S-17-444.
    1.	 Statutes: Judgments: Appeal and Error. The meaning of a statute is a
    question of law, on which an appellate court has an obligation to reach
    an independent conclusion irrespective of the decision made by the
    court below.
    2.	 Sentences: Appeal and Error. A sentence imposed within statutory
    limits will not be disturbed on appeal absent an abuse of discretion by
    the trial court.
    3.	 ____: ____. An abuse of discretion in imposing a sentence occurs when
    a sentencing court’s reasons or rulings are clearly untenable and unfairly
    deprive the litigant of a substantial right and a just result.
    4.	 Sentences. The appropriateness of a sentence is necessarily a subjec-
    tive judgment 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.	 ____. In determining a sentence to be imposed, relevant factors custom-
    arily considered and applied 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) motiva-
    tion 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.
    Appeals from the District Court for Lancaster County: Lori
    A. M aret, Judge. Affirmed.
    Joe Nigro, Lancaster County Public Defender, Bradley A.
    Sipp, and, on brief, Jennifer M. Houlden for appellant.
    Douglas J. Peterson, Attorney General, and Joe Meyer for
    appellee.
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    STATE v. BROWN
    Cite as 
    300 Neb. 57
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
    JJ., and H arder and Noakes, District Judges.
    Miller-Lerman, J.
    NATURE OF CASE
    Cases Nos. S-17-442 through S-17-444 have been con-
    solidated before us on appeal. In each of these three appeals,
    Darwin E. Brown appeals his conviction and sentence in the
    district court for Lancaster County for driving under the influ-
    ence. With regard to each conviction, Brown was found to
    have had two prior convictions as defined by Neb. Rev. Stat.
    § 60-6,197.02(1)(a) (Cum. Supp. 2016). Brown claims, inter
    alia, that a prior conviction in Missouri should not have been
    used for purposes of enhancing his sentences for these convic-
    tions. Because we conclude that the Missouri conviction was
    valid for use as a prior conviction in each of these cases, we
    affirm Brown’s convictions and sentences.
    STATEMENT OF FACTS
    In each of these three cases, the State filed an information
    against Brown in the district court for Lancaster County alleg-
    ing that he committed the crime of driving under the influence
    (hereinafter DUI) in violation of Neb. Rev. Stat. § 60-6,196
    (Reissue 2010). The dates of the charged offenses were July
    19, 2015, and January 16 and May 6, 2016. The State also
    alleged in each information that at the time of the offense,
    Brown had a breath alcohol concentration of .15 grams or
    above of alcohol per 210 liters of breath. The State further
    alleged in each information that at the time of the offense,
    Brown had two prior convictions as defined by § 60-6,197.02:
    one for an offense that occurred on December 1, 2013, in
    Nebraska and one for an offense that occurred on December
    17, 2003, in Missouri.
    Pursuant to a plea agreement, Brown pled guilty to the three
    DUI charges and, in exchange, the State refrained from filing
    additional charges and from charging a separate DUI offense,
    which was pending in the county court, as a third offense
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    STATE v. BROWN
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    rather than as a second offense. At the plea hearing, the State
    gave a factual basis as to each charge, which factual basis was
    generally that on the alleged date, Brown was subjected to a
    traffic stop by a law enforcement officer, that the officer saw
    signs of impairment and conducted preliminary tests, and that
    a breath test performed after Brown was transported to jail
    showed that he had an alcohol concentration in excess of .15.
    The court accepted Brown’s pleas and found him guilty of the
    charged offenses.
    At an enhancement hearing, the district court received evi-
    dence of the two alleged prior offenses. At the hearing, the
    court found that the Nebraska conviction was a valid prior con-
    viction for purposes of enhancement. The court reserved ruling
    on the Missouri conviction; but at the sentencing hearing, the
    court found that the Missouri conviction was a valid prior con-
    viction for purposes of enhancement. The court concluded that
    as to each of the current offenses, Brown had two prior DUI
    convictions, including the Missouri conviction, and that he
    had a breath alcohol concentration in excess of .15. Therefore,
    under Neb. Rev. Stat. § 60-6,197.03(6) (Supp. 2013 & Cum.
    Supp. 2014), each offense was a Class IIIA felony.
    The court sentenced Brown to consecutive terms of impris-
    onment for 3 to 5 years for the conviction of the July 2015
    incident, for 3 to 3 years for the conviction of the January
    2016 incident, and for 3 to 3 years for the conviction of the
    May 2016 incident. Because the July 2015 incident occurred
    before the August 30, 2015, effective date of statutory changes
    made by 2015 Neb. Laws, L.B. 605, a higher maximum
    penalty of 5 years’ imprisonment applied to that conviction.
    However, the two other convictions for the offenses which
    occurred after August 30, 2015, were subject to a maximum
    penalty of 3 years’ imprisonment because of changes made
    by L.B. 605. Further, Brown’s sentences for the convictions
    of the January and May 2016 offenses were not subject to
    postrelease supervision, because the court imposed the sen-
    tences in those cases consecutively to the sentence for the July
    2015 offense. In State v. Chacon, 
    296 Neb. 203
    , 894 N.W.2d
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    STATE v. BROWN
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    238 (2017), we cited Neb. Rev. Stat. § 29-2204.02(4) (Reissue
    2016), which provides:
    For any sentence of imprisonment for a Class III, IIIA,
    or IV felony for an offense committed on or after August
    30, 2015, imposed consecutively or concurrently with
    (a) a sentence for a Class III, IIIA, or IV felony for an
    offense committed prior to August 30, 2015, or (b) a
    sentence of imprisonment for a Class I, IA, IB, IC, ID,
    II, or IIA felony, the court shall impose an indeterminate
    sentence within the applicable range in section 28-105
    that does not include a period of post-release supervi-
    sion, in accord­ance with the process set forth in sec-
    tion 29-2204.
    Section 29-2204.02(4) became effective April 20, 2016, and
    we held in Chacon that § 29-2204.02(4) applied to a sen-
    tence that was not final on the effective date of the statute.
    Section 29-2204.02(4) applied to the sentencing in these cases,
    which sentencing occurred on April 4, 2017. In addition to the
    sentences of imprisonment in each of these cases, the court
    ordered that Brown’s driver’s license be revoked for 15 years.
    Brown appeals his three convictions and sentences. We con-
    solidated the three appeals.
    ASSIGNMENTS OF ERROR
    In each of these appeals, Brown claims that the district court
    erred when it used the Missouri conviction as a prior convic-
    tion to enhance his sentences for the present DUI convictions.
    He also claims the court imposed excessive sentences.
    STANDARDS OF REVIEW
    [1] The meaning of a statute is a question of law, on which
    an appellate court has an obligation to reach an independent
    conclusion irrespective of the decision made by the court
    below. State v. Garcia, 
    281 Neb. 1
    , 
    792 N.W.2d 882
    (2011).
    [2,3] A sentence imposed within statutory limits will not be
    disturbed on appeal absent an abuse of discretion by the trial
    court. State v. Smith, 
    295 Neb. 957
    , 
    892 N.W.2d 52
    (2017).
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    STATE v. BROWN
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    300 Neb. 57
    An abuse of discretion in imposing a sentence occurs when a
    sentencing court’s reasons or rulings are clearly untenable and
    unfairly deprive the litigant of a substantial right and a just
    result. 
    Id. ANALYSIS Use
    of Missouri Conviction as a Prior
    Conviction Was Not In Error.
    Brown first claims that the district court erred when it used
    the Missouri conviction as a prior conviction to enhance his
    sentences for the present DUI convictions. We conclude that
    the use of the Missouri conviction as a prior conviction was
    not in error.
    Section 60-6,197.03 sets forth penalties for DUI convic-
    tions under § 60-6,196. The promulgated penalties include
    enhanced sentences for offenders who have had prior convic-
    tions. In these cases, Brown’s convictions were sentenced as
    Class IIIA felonies pursuant to § 60-6,197.03(6) which applies
    when the defendant “has had two prior convictions and, as part
    of the current violation, had a [blood or breath alcohol] con-
    centration” in excess of .15. Section 60-6,197.02(1)(a)(i)(C)
    provides that for purposes of sentencing for a violation of
    § 60-6,196, a prior conviction includes, inter alia, “[a]ny con-
    viction under a law of another state if, at the time of the
    conviction under the law of such other state, the offense for
    which the person was convicted would have been a violation
    of . . .” § 60-6,196 or one of the other enumerated Nebraska
    DUI-related statutes.
    Brown argues that his Missouri conviction for driving
    while intoxicated (DWI) in 2003 would not necessarily have
    been a DUI in Nebraska, because the Missouri statute under
    which he was convicted provided a lower threshold for intoxi-
    cation than under Nebraska law. Brown relies in part on our
    decision in State v. Mitchell, 
    285 Neb. 88
    , 95, 
    825 N.W.2d 429
    , 434 (2013), in which we held that a Colorado convic-
    tion for “driving while ability impaired” (DWAI) was not a
    prior DUI conviction for enhancement purposes, because the
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    threshold for proving a DWAI in Colorado was the “slightest
    degree” of impairment and was lower than the threshold for
    proving DUI in Nebraska.
    The evidence presented by the State in these cases indi-
    cated that Brown’s 2003 conviction in Missouri was for “Dwi
    - Alcohol” pursuant to Mo. Rev. Stat. § 577.010 (West 2003),
    which provided that “[a] person commits the crime of ‘driv-
    ing while intoxicated’ if he operates a motor vehicle while
    in an intoxicated or drugged condition.” Another Missouri
    statute, Mo. Rev. Stat. § 577.001(2) (West 2003), defined
    “‘intoxicated condition’” as being “under the influence of
    alcohol, a controlled substance, or drug, or any combina-
    tion thereof.”
    At the time of Brown’s Missouri conviction, § 60-6,196(1)
    (Supp. 2003) provided that it was “unlawful for any person
    to operate or be in the actual physical control of any motor
    vehicle . . . [w]hile under the influence of alcoholic liquor or
    of any drug.” Comparing the language of the relevant statutes
    in Missouri and Nebraska, we determine that a conviction for
    the offense of DWI under the Missouri statutes would have
    established a DUI violation under § 60-6,196.
    A conviction under the Missouri statutes required that
    one “operates a motor vehicle while in an intoxicated or
    drugged condition,” see § 577.010, and defined “intoxicated
    condition” as being “under the influence of alcohol, a con-
    trolled substance, or drug, or any combination thereof,” see
    § 577.001(2). Reading the two statutes together, a conviction
    for DWI in Missouri required proof that one “operate[d] a
    motor vehicle while . . . under the influence of alcohol, a con-
    trolled substance, or . . . any combination thereof.” This statu-
    tory language setting forth the offense of DWI in Missouri
    was substantially the same as the language of § 60-6,196(1),
    which defined proof of DUI to include that one “operate[d]
    . . . any motor vehicle . . . [w]hile under the influence of
    alcoholic liquor or of any drug.” Both the Missouri and
    the Nebraska statutory schemes effectively required that one
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    operate a motor vehicle while “under the influence” of alcohol
    or a drug. Although the Missouri statute referred to the offense
    as “DWI” rather than “DUI,” it included essentially the statu-
    tory elements that were necessary to establish DUI under
    § 60-6,196 in Nebraska.
    Brown’s argument looks beyond the statutory language and
    relies on court interpretations of the two states’ statutes. He
    notes that Missouri courts clarified that “‘under the influ-
    ence of alcohol’” meant “‘any intoxication that in any manner
    impairs the ability of a person to operate an automobile.’”
    State v. Edwards, 
    280 S.W.2d 184
    , 189 (Mo. App. 2009). He
    compares Missouri case law to cases in which this court has
    stated that the Nebraska statutory phrase “‘under the influ-
    ence of alcoholic liquor or of any drug’” requires the ingestion
    of alcohol or drugs in an amount sufficient to impair to “any
    appreciable degree” the driver’s ability to operate a motor vehi-
    cle in a prudent and cautious manner. State v. Falcon, 
    260 Neb. 119
    , 123, 
    615 N.W.2d 436
    , 439 (2000). Brown contends that
    Missouri and Nebraska required different levels of impairment
    and that Missouri’s standard of impairment “‘in any manner’”
    was a lower threshold than Nebraska’s requirement of impair-
    ment to “‘any appreciable degree.’” Briefs for appellant at 10.
    He likens the Missouri standard of impairment “in any man-
    ner” to the Colorado statutory language referring to impairment
    to the “slightest degree” that we found in State v. Mitchell,
    
    285 Neb. 88
    , 
    825 N.W.2d 429
    (2015), to be a lower threshold
    than Nebraska’s standard of impairment to “‘an appreciable
    degree.’” Briefs for appellant at 13.
    Contrary to Brown’s analysis, the starting point in a compar-
    ison of another state’s statutorily defined offense to Nebraska’s
    statutory DUI offenses should be to compare the statutory
    language in the other state to the language of the relevant
    Nebraska statute. The definition of “[p]rior conviction” under
    § 60-6,197.02(1)(a)(i)(C) includes a conviction in another state
    when “the offense for which the person was convicted would
    have been a violation of” § 60-6,196 or one of the other
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    enumerated Nebraska DUI-related statutes. We read this defini-
    tion as requiring an initial comparison of the other state’s statu-
    tory definition of the offense to Nebraska’s statutory definition
    of a DUI-related offense. If it is clear that the offense as statu-
    torily defined in the other state would have been a violation of
    the relevant Nebraska statute, no further inquiry is required.
    In the present case, as we determined above, the minimum
    requirements for a conviction under the Missouri statutes under
    which Brown was convicted would have been a violation of
    § 60-6,196.
    This focus on statutory language and the statutory elements
    of the offenses in the two states was recognized in Mitchell,
    wherein we stated that the defendant’s Colorado “conviction
    of DWAI was a determination that his conduct met the mini-
    mum requirement for violation of the DWAI statute” and that
    the conviction made no other 
    determination. 285 Neb. at 94
    ,
    825 N.W.2d at 434. We stated that it was the fact of convic-
    tion under the other state’s statutorily defined offense, and “not
    the record of a defendant’s conduct at the time of the arrest,
    that is relevant to our analysis.” 
    Id. We therefore
    concluded
    that punishment for the Nebraska conviction could not be
    enhanced solely “because the facts of his arrest and convic-
    tion in Colorado could support the higher requirement for a
    Nebraska DUI,” 
    id., when the
    minimum requirements to estab-
    lish the Colorado offense would not support a conviction for
    DUI in Nebraska.
    The analytical lesson from Mitchell directs us to focus
    initially on a comparison of statutes and only if the outcome
    is unclear do we then expand the inquiry to case law inter-
    pretation of the statutes. And trivial differences in statutory
    language do not necessarily make the comparison unclear. In
    Mitchell, this initial comparison did not show that conduct
    meeting the minimum requirement of the Colorado DWAI
    statute would constitute a violation of the Nebraska statute,
    § 60-6,196. The Colorado DWAI statutes required only that “a
    person has consumed alcohol . . . that affects the person to the
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    slightest degree.” See Colo. Rev. Stat. Ann. § 42-4-1301(g)
    (West Cum. Supp. 2017). Because this statutory language
    did not clearly establish a violation of § 60-6,196(1), which
    required that the defendant be “under the influence of alco-
    holic liquor or of any drug,” we looked to Nebraska case
    law interpreting § 60-6,196 to see whether evidence of being
    affected “to the slightest degree” would nevertheless con-
    stitute being “under the influence of alcoholic liquor” under
    Nebraska statutory law. Because case law required impair-
    ment to “any appreciable degree” rather than to “the slightest
    degree,” we concluded that a conviction establishing the mini-
    mum requirements for DWAI in Colorado did not constitute a
    violation of § 60-6,196.
    Compared to the Colorado statute in State v. Mitchell, 
    285 Neb. 88
    , 
    825 N.W.2d 429
    (2013), if one met the minimum
    statutory requirements of the offense of DWI in the Missouri
    statutes discussed above, one would also be in violation of
    § 60-6,196. Both statutory schemes used the standard of
    being “under the influence” of alcohol. We conclude that the
    Missouri and Nebraska statutes require the same elements, and
    the fact that case law in each state may describe that standard
    with slightly different language does not inform or change
    our determination.
    One key factor in our decision in Mitchell was that in addi-
    tion to the DWAI statute at issue, Colorado had a separate
    DUI subsection that required a higher level of impairment
    than was required for DWAI. See § 42-4-1301(f). We found
    Colorado’s distinction between DUI and DWAI relevant to our
    determination that conviction for DWAI in Colorado did not
    establish DUI under § 60-6,196. Brown attempts to apply this
    aspect of Mitchell to his advantage and notes that Missouri
    also had a statute, Mo. Rev. Stat. § 577.012 (West 2003), that
    set forth an offense of “‘driving with excessive blood alcohol
    content,’” which required that the person have a certain level
    of alcohol in his or her blood. Brown argues that the existence
    of this separate statute in Missouri is similar to Colorado’s
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    statutory distinction between DWAI and DUI and indicates
    that a conviction under Missouri’s DWI statute would not be a
    violation of § 60-6,196. However, the existence of § 577.012
    does not support Brown’s argument. Instead, it shows that
    Missouri’s statutory scheme is similar to § 60-6,196, which
    provides that one can commit DUI by, inter alia, being “under
    the influence” pursuant to subsection (1)(a) or by having a
    specified concentration of alcohol in one’s blood or breath
    pursuant to subsections (1)(b) and (c). The difference between
    Nebraska’s and Missouri’s statutory scheme is merely that
    Nebraska includes in one statute what Missouri included in
    more than one statute. Missouri’s separate statutes, which each
    correspond to a separate part of § 60-6,196, do not inform
    our analysis in the same way that Colorado’s two subsections,
    which set forth different levels of impairment, compelled our
    analysis in Mitchell.
    We conclude that Brown’s conviction for DWI in Missouri
    would have constituted a violation of § 60-6,196. We there-
    fore conclude that the district court’s determination that the
    Missouri conviction was a prior conviction for purposes of
    enhancing the current offenses was not in error.
    District Court Did Not Abuse Its
    Discretion in Sentencing Brown.
    Brown also claims that the court imposed excessive sen-
    tences. We conclude that the district court did not abuse its
    discretion in sentencing Brown.
    After an enhancement hearing, each of Brown’s offenses
    in this appeal was determined to be a Class IIIA felony
    under § 60-6,197.03(6). With regard to the conviction of the
    offense that occurred in July 2015, the statutory range for a
    Class IIIA felony included imprisonment for a maximum of 5
    years. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014). For the
    convictions of the offenses that occurred in January and May
    2016, the statutory range for a Class IIIA felony included
    imprisonment for a maximum of 3 years. § 28-105 (Supp.
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    2015). As noted above, Brown’s sentences for the convictions
    of the January and May 2016 offenses were not subject to
    postrelease supervision requirements under L.B. 605, because
    the court imposed those sentences consecutively to the sen-
    tence for the conviction of the July 2015 offense. The sen-
    tences of imprisonment for 3 to 5 years for the conviction of
    the July 2015 incident, for 3 to 3 years for the conviction of
    the January 2016 incident, and for 3 to 3 years for the convic-
    tion of the May 2016 incident are therefore within statutory
    limits, so we next consider whether the sentences were an
    abuse of discretion.
    [4,5] The appropriateness of a sentence is necessarily a
    subjective judgment and includes the sentencing judge’s obser-
    vation of the defendant’s demeanor and attitude and all the
    facts and circumstances surrounding the defendant’s life. State
    v. Cerritos-Valdez, 
    295 Neb. 563
    , 
    889 N.W.2d 605
    (2017).
    Relevant factors customarily considered and applied 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. Russell, 
    299 Neb. 483
    , 
    908 N.W.2d 669
    (2018).
    Additionally, when deciding if it is appropriate to withhold a
    sentence of imprisonment and grant probation, a sentencing
    court is guided by the statutory grounds set forth in Neb. Rev.
    Stat. § 29-2260 (Reissue 2016).
    Brown notes that the court imposed the maximum sentence
    of imprisonment in each case and ordered the sentences to be
    served consecutively. He argues that the court focused almost
    exclusively on his history of committing DUI’s and did not
    give adequate consideration to mitigating factors both when
    it determined the length of his sentences and when it decided
    against imposing a sentence of probation instead of imprison-
    ment. He acknowledges his history and his problems with alco-
    holism, but he argues that the court ignored his rehabilitative
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    needs, his life circumstances, his employment history, and his
    willingness to enter pleas in these cases.
    With regard to Brown’s willingness to enter pleas, we note
    that as part of the plea agreement, the State agreed to refrain
    from filing additional charges and from enhancing the penalty
    in a separate case pending in county court. Although the court
    did not extensively discuss mitigating factors, such factors
    were presented to and considered by the court. The court’s
    comments at sentencing indicated that to the extent mitigating
    factors were present, the court found them to be substantially
    outweighed by concerns regarding the seriousness of Brown’s
    offenses and the danger he presented to the community. The
    court noted that including the pending case in county court
    and the three cases in this appeal, Brown had been arrested
    for driving drunk four times within a year and that at least
    in the three cases on appeal, he had an alcohol concentration
    well over .15.
    We do not think the court considered inappropriate fac-
    tors, nor did it fail to consider mitigating factors. The court
    determined that factors such as the seriousness of the offense
    and the danger Brown posed to the community favored the
    imposition of a long term of imprisonment; such determina-
    tion was within the court’s discretion. We conclude that the
    district court did not abuse its discretion in sentencing Brown
    in these cases.
    CONCLUSION
    We conclude that the court’s use of the Missouri convic-
    tion as a prior conviction in these cases was not in error.
    We further conclude that the district court did not abuse its
    discretion in sentencing Brown in these cases. We therefore
    affirm Brown’s convictions and sentences in these consoli-
    dated appeals.
    A ffirmed.
    

Document Info

Docket Number: S-17-442, S-17-443, S-17-444

Filed Date: 5/25/2018

Precedential Status: Precedential

Modified Date: 3/3/2020