State v. Ralios , 301 Neb. 1027 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/22/2019 09:07 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. RALIOS
    Cite as 
    301 Neb. 1027
    State of Nebraska, appellee, v.
    Gabriel R alios, appellant.
    ___ N.W.2d ___
    Filed January 4, 2019.    No. S-18-126.
    1.	 Statutes: Appeal and Error. Statutory interpretation is a question of
    law that an appellate court resolves independently of the trial court.
    2.	 Sentences: Appeal and Error. Whether an appellate court is reviewing
    a sentence for its leniency or its excessiveness, a sentence imposed by
    a district court that is within the statutorily prescribed limits will not
    be disturbed on appeal unless there appears to be an abuse of the trial
    court’s discretion.
    3.	 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.
    4.	 Statutes: Legislature: Intent. The fundamental objective of statutory
    interpretation is to ascertain and carry out the Legislature’s intent.
    5.	 Criminal Law: Statutes: Legislature: Intent. In reading a penal stat-
    ute, a court must determine and give effect to the purpose and intent of
    the Legislature as ascertained from the entire language of the statute
    considered in its plain, ordinary, and popular sense.
    6.	 Licenses and Permits: Revocation: Proof. Proof of reinstatement of a
    suspended operator’s license under 
    Neb. Rev. Stat. § 60-4
    ,108(2) (Supp.
    2017) requires that a driver with a previously suspended license show
    that his or her license is no longer suspended and that his or her license
    validly and effectively allows the holder to operate a motor vehicle.
    7.	 Sentences: Appeal and Error. When a trial court’s sentence is within
    the statutory guidelines, the sentence will only be disturbed by an appel-
    late court when an abuse of discretion is shown.
    8.	 Sentences. When imposing a sentence, a sentencing judge should con-
    sider the defendant’s (1) age, (2) mentality, (3) education and experi-
    ence, (4) social and cultural background, (5) past criminal record or
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    STATE v. RALIOS
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    record of law-abiding conduct, and (6) motivation for the offense, as
    well as (7) the nature of the offense, and (8) the violence involved in the
    commission of the crime.
    9.	 ____. 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.
    Appeal from the District Court for Thurston County, John
    E. Samson, Judge, on appeal thereto from the County Court
    for Thurston County, Douglas L. Luebe, Judge. Judgment of
    District Court affirmed.
    Erika Y. Buenrostro, of Castrejon & Buenrostro, L.L.C., for
    appellant.
    Douglas J. Peterson, Attorney General, Nathan A. Liss,
    Derek Bral, Senior Certified Law Student, and, on brief, Sarah
    E. Marfisi.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    NATURE OF CASE
    Pursuant to a plea agreement with the State, Gabriel Ralios
    pled guilty to operating a motor vehicle during a time of sus-
    pension, a Class III misdemeanor, and speeding. On November
    2, 2017, the county court accepted Ralios’ pleas and, after
    hearing argument on sentencing, the court sentenced him to 75
    days in jail pursuant to 
    Neb. Rev. Stat. § 60-4
    ,108(2) (Supp.
    2017). Ralios appealed his sentence to the district court sitting
    as an intermediate court of appeal, assigning that the county
    court erred in sentencing Ralios to 75 days in jail instead of a
    fine of $100 under § 60-4,108(2). The district court affirmed
    the county court’s sentence. The central issue on appeal is
    whether Ralios showed “proof of reinstatement of his . . . sus-
    pended operator’s license” under § 60-4,108(2).
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    STATE v. RALIOS
    Cite as 
    301 Neb. 1027
    BACKGROUND
    On July 4, 2017, a Thurston County deputy sheriff clocked
    Ralios’ car traveling over 80 m.p.h. in a 60-m.p.h. zone. Upon
    stopping the vehicle, the deputy determined Ralios’ license
    was suspended in the State of Missouri. He was charged with
    speeding and with operating a motor vehicle during a time of
    suspension.
    On November 2, 2017, Ralios entered into a plea agreement.
    The State agreed to stand silent at sentencing in exchange for
    Ralios’ pleas on both counts. The court accepted Ralios’ pleas
    and proceeded immediately to sentencing.
    During the sentencing hearing, Ralios presented a letter from
    the Missouri Driver License Bureau stating that Ralios was “not
    currently suspended or revoked in the state of Missouri” as of
    October 3, 2017. He argued that this letter was sufficient to
    establish that his license was reinstated and that therefore, the
    maximum punishment authorized by statute was a $100 fine
    under § 60-4,108(2). Ralios conceded, however, that he was
    not able to drive legally in Missouri at the time of sentencing.
    Section 60-4,108(2) states in relevant part:
    [A]ny person so offending shall be guilty of a Class III
    misdemeanor, and the court may, as a part of the judgment
    of conviction, order such person not to operate any motor
    vehicle for any purpose for a period of one year from the
    date ordered by the court, except that if the person at the
    time of sentencing shows proof of reinstatement of his or
    her suspended operator’s license, proof of issuance of a
    new license, or proof of return of the impounded license,
    the person shall only be fined in an amount not to exceed
    one hundred dollars.
    (Emphasis supplied.) Under 
    Neb. Rev. Stat. § 28-106
     (Reissue
    2016), a Class III misdemeanor is generally punishable by a
    maximum of 3 months’ imprisonment, a fine of $500, or both,
    with no minimum.
    The court concluded that Ralios did not present sufficient
    evidence to show that his license had been reinstated in
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    STATE v. RALIOS
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    the State of Missouri. No evidence was presented to the
    court regarding Ralios’ prior convictions at the sentencing
    hearing, but the county court considered Ralios’ prior con-
    victions for driving without an operator’s license in Dodge
    County, Nebraska, which the court found on Nebraska’s online
    trial court case management system, known as JUSTICE.
    Considering the prior convictions and the evidence presented,
    the county court sentenced Ralios to 75 days in jail.
    Ralios appealed his sentence to the district court for Thurston
    County, and a hearing was held on January 10, 2018. Ralios
    argued that the sentence was not authorized by statute, because
    he had presented sufficient evidence to warrant the statutory
    sentence requiring a reduction to only a $100 fine, and the
    county court abused its discretion by imposing an excessive
    sentence of 75 days in jail. The State did not submit a brief or
    argue. The district court affirmed the judgment and sentence of
    the county court. Ralios appeals.
    ASSIGNMENTS OF ERROR
    Ralios assigns that the district court erred in affirming the
    county court’s sentence of 75 days in jail instead of a fine of
    $100 or less under § 60-4,108(2) and in abusing its discretion
    by ordering Ralios to serve an excessive sentence.
    STANDARD OF REVIEW
    [1] Statutory interpretation is a question of law that an
    appellate court resolves independently of the trial court.1
    [2,3] Whether an appellate court is reviewing a sentence
    for its leniency or its excessiveness, a sentence imposed by a
    district court that is within the statutorily prescribed limits will
    not be disturbed on appeal unless there appears to be an abuse
    of the trial court’s discretion.2 A judicial abuse of discretion
    exists only when the reasons or rulings of a trial judge are
    1
    State v. Thompson, 
    294 Neb. 197
    , 
    881 N.W.2d 609
     (2016).
    2
    State v. Fields, 
    268 Neb. 850
    , 
    688 N.W.2d 878
     (2004).
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    STATE v. RALIOS
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    clearly untenable, unfairly depriving a litigant of a substan-
    tial right and denying a just result in matters submitted for
    disposition.3
    ANALYSIS
    Ralios asserts on appeal that the district court erred in
    affirming the county court’s sentence of 75 days in jail instead
    of a fine of $100 or less under § 60-4,108(2) and in abusing its
    discretion by ordering Ralios to serve an excessive sentence.
    We first address the issue of the interpretation of § 60-4,108(2),
    with the issue regarding the excessiveness of his sentence to
    follow. There is no issue as to whether the evidence was suffi-
    cient to support Ralios’ conviction of driving under suspension,
    because Ralios pled guilty to the offense and the propriety of
    his plea and conviction are not issues argued before this court
    on appeal.
    Interpretation of § 60-4,108(2)
    In support of his first assignment, Ralios argues that he
    provided the trial court with sufficient “proof of reinstatement
    of his or her suspended operator’s license” by submitting a
    letter from the Missouri Driver License Bureau stating that
    Ralios was “not currently suspended or revoked in the state
    of Missouri” as of October 3, 2017. The State contends that
    the letter did not meet the requirement set by the statute.
    We agree.
    The language of § 60-4,108(2) at issue in this appeal
    is “proof of reinstatement of his or her suspended opera-
    tor’s license, proof of issuance of a new license, or proof of
    return of the impounded license.” (Emphasis supplied.) Ralios
    argues—and the State concedes—that the function of this sec-
    tion is to mitigate a sentence for people who show proof of
    their reinstatement of their suspended operators’ licenses. We
    determine in this appeal the meaning of “proof of reinstatement
    3
    Id.
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    of his or her suspended operator’s license” without expressing
    any opinion as to whether the statute prohibits jail time for
    defendants who provide such proof. The meaning of “proof of
    reinstatement of his or her suspended operator’s license” is an
    issue of first impression for this court.
    [4,5] The fundamental objective of statutory interpretation
    is to ascertain and carry out the Legislature’s intent.4 In read-
    ing a penal statute, a court must determine and give effect to
    the purpose and intent of the Legislature as ascertained from
    the entire language of the statute considered in its plain, ordi-
    nary, and popular sense.5 Statutory interpretation is a question
    of law that an appellate court resolves independently of the
    trial court.6
    [6] We hold that “proof of reinstatement of [a] suspended
    operator’s license” under 
    Neb. Rev. Stat. § 60-4
    ,108(2) requires
    that a driver with a previously suspended license show that his
    or her license is no longer suspended and that his or her license
    validly and effectively allows the holder to operate a motor
    vehicle. This comports with the plain meaning of “reinstate”
    as the restoration of the license to its previously effective
    state, and it is consistent with 
    Neb. Rev. Stat. § 60-4
    ,100.01
    (Reissue 2010). Proof of “reinstatement” of an operator’s
    license requires more than a mere showing of nonsuspension.
    Instead, proof of reinstatement involves proof that the indi-
    vidual holds an affirmatively issued license or permit to legally
    drive a motor vehicle.
    We find no merit to Ralios’ argument that the statute’s plain
    language, read in pari materia with other definitional sections
    of Nebraska’s operator’s license laws, demonstrates that he
    is required only to show that he has his “privilege to drive,”
    which he defines as the ability to obtain a license if he so
    chooses, “reinstated,” in order to show “proof of reinstatement
    4
    State v. Thompson, 
    supra note 1
    .
    5
    
    Id.
    6
    
    Id.
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    of his or her suspended operator’s license.”7 He argues that
    the statute does not require that he be in possession of a valid
    tangible government issued license, because the definition of
    “operator’s license” under 
    Neb. Rev. Stat. § 60-474
     (Cum.
    Supp. 2016) is much broader; a privilege to drive is, according
    to Ralios, the ability to obtain a license. Thus, he contends that
    his “operator’s license” was automatically “reinstated” at the
    conclusion of his suspension.
    Section 60-474 of the Motor Vehicle Operator’s License
    Act8 defines “[o]perator’s or driver’s license” as
    [A]ny license or permit to operate a motor vehicle issued
    under the laws of this state, including:
    (1) Any replacement license or instruction permit;
    (2) The privilege of any person to drive a motor vehicle
    whether such person holds a valid license;
    (3) Any nonresident’s operating privilege which shall
    mean the privilege conferred upon a nonresident by the
    laws of this state pertaining to the operation of a motor
    vehicle in this state by such person or the use in this state
    of a vehicle owned by such person;
    (4) An employment driving permit issued as provided
    by sections 60-4,129 and 60-4,130; and
    (5) A medical hardship driving permit issued as pro-
    vided by sections 60-4,130.01 and 60-4,130.02.
    (Emphasis supplied.) Focusing on § 60-474(2) and the lan-
    guage “privilege . . . to drive a motor vehicle whether such
    person holds a valid license,” Ralios argues that “operator’s
    license” includes situations where no government agency has
    issued a license to an individual, but the individual has the
    legal right to obtain a license. He argues that this is the
    “privilege” that would fall within the scope of the definition
    of “operator’s license.” Because he provided proof that his
    7
    Brief for appellant at 10.
    8
    
    Neb. Rev. Stat. §§ 60-462
     to 60-4,189 (Reissue 2010, Cum. Supp. 2016 &
    Supp. 2017).
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    license was no longer suspended in Missouri, he asserts that
    he effectively showed that his driving privilege, or “operator’s
    license” under § 60-474, was “reinstated.”
    Ralios is incorrect that an “operator’s license,” for rein-
    statement purposes, includes the mere legal ability to obtain a
    driver’s license. Looking at the act as a whole, the Legislature
    consistently uses the phrase “operator’s license” in contexts
    where the term refers to an affirmatively issued license or per-
    mit to legally drive—not to the concept of potential privileges
    for unlicensed drivers. For example, § 60-484(1) states that “no
    resident of the State of Nebraska shall operate a motor vehicle
    upon the alleys or highways of this state until the person
    has obtained an operator’s license for that purpose.” Section
    60-488(2)(a) of the act extends driving privileges to non-
    residents so long as “[s]uch nonresident shall be duly licensed
    under the motor vehicle laws of the state of his or her residence
    . . . .” These provisions would make little sense if the term
    “operator’s license” were strained to encompass persons who
    merely had the option to obtain a license or permit.
    On the day of sentencing, Ralios conceded that he (1) was
    not able to drive in the State of Missouri legally at that time,
    (2) did not have a current driver’s license, and (3) was told by
    the State of Missouri that he could obtain a new license but
    never obtained one. As evidence of proof of reinstatement, he
    provided only the clearance letter from Missouri. Because this
    letter did not affirmatively show that Ralios had a current valid
    operator’s license in the State of Missouri, we find that it was
    insufficient to warrant the reduction of his sentence to a $100
    fine under § 60-4,108(2).
    Excessive Sentence
    By determining that Ralios’ clearance letter was insufficient
    to warrant the reduction of his sentence to a $100 fine under
    § 60-4,108(2), we now must determine whether the imposition
    of his 75-day jail sentence was excessive and thus an abuse of
    discretion by the lower court.
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    [7] When a trial court’s sentence is within the statutory
    guidelines, the sentence will only be disturbed by an appellate
    court when an abuse of discretion is shown.9 As § 60-4,108(2)
    states, a person who violates that section is guilty of a Class
    III misdemeanor. Under § 28-106, a Class III misdemeanor is
    generally punishable by a maximum of 3 months’ imprison-
    ment, a fine of $500, or both, with no minimum. Here, Ralios
    was sentenced to 75 days in jail, and his sentence was clearly
    within the statutory guidelines. Therefore, Ralios’ sentence will
    only be disturbed if there was a judicial abuse of discretion by
    the sentencing court.
    [8,9] Abuse of discretion occurs when a trial court’s deci-
    sion is based upon reasons that are untenable or unreasonable
    or if its action is clearly against justice or conscience, reason,
    and evidence.10 When imposing a sentence, a sentencing judge
    should 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 violence involved in the commission of
    the crime.11 The appropriateness of a sentence is necessarily
    a subjective 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.12
    Generally, the sentencing court has broad discretion as to the
    source and type of evidence and information which may be
    used in determining the kind and extent of the punishment to
    be imposed, and evidence may be presented as to any matter
    that the court deems relevant to the sentence.13
    9
    State   v.   Huff, 
    282 Neb. 78
    , 
    802 N.W.2d 77
     (2011).
    10
    State   v.   Collins, 
    292 Neb. 602
    , 
    873 N.W.2d 657
     (2016).
    11
    State   v.   Huff, supra note 9.
    12
    State   v.   Custer, 
    292 Neb. 88
    , 
    871 N.W.2d 243
     (2015).
    13
    State   v.   Pullens, 
    281 Neb. 828
    , 
    800 N.W.2d 202
     (2011).
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    Ralios argues, first, that the sentencing court acted contrary
    to its role by considering Ralios’ prior convictions and crimi-
    nal history that the court independently found on Nebraska’s
    online trial court case management system, known as JUSTICE.
    However, there is nothing in the record to show that the sen-
    tencing court’s consideration of these materials were objected
    to below. A party who fails to make a timely objection to
    evidence waives the right on appeal to assert prejudicial error
    concerning the evidence received without objection.14
    Second, Ralios argues that the court did not properly con-
    sider mitigating factors in imposing the 75-day jail sentence.
    Based on the record before us, the sentencing court did not
    consider any inappropriate or unreasonable factors in determin-
    ing the sentence. We find that the court did not make its deci-
    sion based upon reasons that are untenable or unreasonable,
    nor was its action clearly against justice or conscience, reason,
    and evidence.
    CONCLUSION
    For the reasons set forth above, we affirm the district court’s
    affirmance of the county court’s sentence.
    A ffirmed.
    14
    State v. Cook, 
    266 Neb. 465
    , 
    667 N.W.2d 201
     (2003).