State v. Morton , 310 Neb. 355 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/17/2021 01:07 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. MORTON
Cite as 310 Neb. 355State of Nebraska, appellee, v.
Natavian Q. Morton, appellant.
___ N.W.2d ___
Filed November 12, 2021. No. S-19-1168.
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: Appeal and Error. When sentences imposed within statu-
tory limits are alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discretion in
considering well-established factors and any applicable legal principles.
4. 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.
5. ____. 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.
6. Sentences: Prosecuting Attorneys. So long as the facts provide a suf-
ficient basis to find all elements beyond a reasonable doubt for the
crimes the defendant is convicted of, whether an alternative crime fits
those facts best is a matter of prosecutorial discretion and not a reason
to question the trial court’s sentence on the crimes found to have been
committed.
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STATE v. MORTON
Cite as 310 Neb. 3557. Constitutional Law: Prosecuting Attorneys: Probable Cause.
Prosecutorial discretion is an inherent executive power under which the
prosecutor has the discretion to choose to charge any crime that prob-
able cause will support or, if the prosecutor chooses, not to charge the
accused at all.
8. Criminal Law: Intent. A trier of fact may infer that the defendant
intended the natural and probable consequences of the defendant’s vol-
untary acts.
9. Homicide: Intent. An indiscriminate killer is just as culpable as one
who targets a specific person.
10. Sentences: Plea Bargains. In deciding the appropriate sentence, a
sentencing court can account for the fact that the defendant received a
substantial benefit from a plea bargain agreement.
11. Sentences: Statutes. There is nothing in the statutory scheme requiring
proportionality between the sentences imposed for the crimes of use or
possession and the sentences imposed for their predicate offenses.
12. Constitutional Law: Sentences: Appeal and Error. Comparative
analy­sis is not mandatory in a challenge under the Eighth Amendment
and is useful only to validate an initial judgment that a sentence is so
grossly disproportionate to a crime as to be excessive; review of an
excessive sentence claim under Neb. Rev. Stat. § 29-2308 (Reissue
2016) is not subject to a higher standard.
13. Sentences: Appeal and Error. Appellate courts are under no duty to
conduct a de novo review of the record to determine whether a sentence
is proportionate.
14. Constitutional Law: Sentences: Statutes: Appeal and Error. Once
it is determined that the sentence prescribed by statute is constitutional
and that the sentence imposed is within statutory limits, the issue in
reviewing a sentence is not whether someone else in a different case
received a lesser sentence, but whether the defendant in the subject case
received an appropriate one.
15. Sentences: Appeal and Error. The power to impose sentences is
entrusted to the sentencing court and not to an appellate court.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Reversed and remanded with direction.
Jonathan M. Braaten and Mona L. Burton, of Anderson,
Creager & Wittstruck, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. MORTON
Cite as 310 Neb. 355Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
In the defendant’s appeal to the Nebraska Court of Appeals
from plea-based convictions of manslaughter and possession
of a firearm during the commission of a felony, the Court of
Appeals reduced the sentence imposed for the firearm convic-
tion as excessive. We granted the State’s petition for further
review assigning as error the Court of Appeals’ reduction of
the sentence.
BACKGROUND
Natavian Q. Morton was originally charged with second
degree murder, 1 a Class IB felony; two counts of use of a fire-
arm to commit a felony, 2 both Class IC felonies; and unlaw-
ful discharge of a firearm, 3 a Class ID felony. The charged
offenses were alleged to occur at a time when Morton was 16
years of age. Morton’s motion to transfer to juvenile court was
denied after a hearing in August 2018.
Pursuant to a plea agreement, Morton pled no contest to
manslaughter, 4 a Class IIA felony, and possession of a firearm
during the commission of a felony, a Class II felony. After a
colloquy between the court and Morton regarding the potential
penalties for the offenses and the rights he was waiving by
entering no contest pleas, the State provided a factual basis.
The State informed the trial court that on March 26, 2018,
a young man had been shot and killed. The dispute had origi-
nated earlier in the day at a high school in Lincoln, Nebraska,
where a fight had occurred which resulted in the suspen-
sion of several individuals, including Perrion Bluford and
1
Neb. Rev. Stat. § 28-304 (Reissue 2016).
2
Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016).
3
Neb. Rev. Stat. § 28-1212.02 (Reissue 2016).
4
Neb. Rev. Stat. § 28-305 (Reissue 2016).
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STATE v. MORTON
Cite as 310 Neb. 355three residents of the house where the shooting occurred. The
Lincoln Police Department investigator in charge of investigat-
ing the shooting also learned that there had been electronic
communication between the two groups involved in the fight
regarding continuing the fight later on that same day.
Video surveillance from another Lincoln high school, which
Morton attended, showed Morton, wearing a black jacket, blue
jeans, and tan shoes, leaving the high school at approximately
1:06 p.m. with two other individuals and getting into one of
two vehicles that came to pick them up. One of the vehicles
belonged to Bluford.
The Lincoln Police Department was detailed to the area
of South 47th Street and Cooper Avenue at approximately
1:56 p.m. on a report of 15 people fighting outside a residence.
Dispatch further indicated that someone had been hit by a
vehicle and that shots had been fired. Upon arrival, officers
observed an injured person on the porch who had suffered a
gunshot wound. The victim, later identified as Edgar Union,
Jr., died at the scene.
An individual involved in the incident informed law enforce-
ment that Morton was one of approximately eight people who
went to the residence to fight the occupants. Upon arrival, a
verbal altercation ensued between the groups.
While this was occurring, a white sport utility vehicle (SUV)
driven by a woman arrived with several passengers who exited
the SUV and ran onto the porch. Later, the woman driving the
SUV made a comment about running people over, reentered the
SUV, drove in a circle, and struck an individual in the yard.
The witness then heard a gunshot, but did not know who
fired it, because he was trying to help the victim struck by the
SUV. Other witnesses corroborated much of the same infor-
mation, identified Morton as someone present at the scene of
the shooting, and stated that they saw an outline of a gun in
his jacket pocket. No witnesses stated they saw Morton fire
the gun.
An arrest warrant was issued for Morton on April 24,
2018, who was located and arrested in Mississippi. Police
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STATE v. MORTON
Cite as 310 Neb. 355interviewed Morton, who waived his Miranda rights and told
officers that after he was picked up at the high school he
attended, he rode with Bluford to the scene of the shoot-
ing. Upon their arrival at the scene, Bluford handed him the
gun while they were still inside the vehicle and asked him
to hold it. He agreed and put the gun in his jacket pocket.
Morton admitted to firing the shot that killed the victim and
provided information consistent with that of other witnesses.
Specifically, Morton confirmed that there was a verbal alterca-
tion between his group and the occupants of the residence on
South 47th Street, including those who had arrived in a white
SUV with the victim as a passenger.
Morton told the officers that as the occupants of the SUV
walked toward the porch, he saw that one of them had a gun in
his hand. Further, Morton stated the woman driving the white
SUV threatened to hit people with her SUV and then, in fact,
did hit an individual with the SUV.
Morton stated that when the woman in the SUV was trying
to hit people, he was running back toward the vehicle he had
arrived in, but that the people in his group began yelling at
him to shoot. Morton described facing the house, but walking
backward toward the vehicle, when he pulled the gun out of his
pocket and fired one shot toward the house.
Morton stated he was not aiming at anyone in particular,
but was just pointing the gun in the direction of the house and
porch. Morton did not claim to be aiming at the SUV in self-
defense. There is no indication from the factual basis that the
former passenger of the SUV, whom Morton had observed with
a gun, had aimed it at Morton or anyone else in his group.
The district court accepted Morton’s pleas, found the factual
basis sufficient, and found Morton guilty. The court ordered a
presentence investigation be completed and continued that mat-
ter for sentencing.
Sentencing
Defense counsel noted at sentencing that Morton was
“extremely remorseful” for the poor decisions he made, which
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STATE v. MORTON
Cite as 310 Neb. 355resulted in the “untimely death” of the victim, and that he
fully acknowledged the seriousness of the particular situation.
Defense counsel noted that these comments for sentencing
were not to undermine the seriousness of the situation but to
provide context and some mitigation for the court to consider
in hopefully imposing lenient sentences.
Defense counsel stated that a number of factors present in
this case warranted sentences of probation or a minimal period
of incarceration. He highlighted the fact that Morton had no
prior criminal record whatsoever and was only 16 years old at
the time of the incident and 17 years old at sentencing. Based
on Morton’s age, defense counsel highlighted U.S. Supreme
Court cases that discuss three primary factors that supported
his argument that children should be treated differently than an
adult, such as the following: Children lack maturity and have
an underdeveloped sense of responsibility, children are more
vulnerable to negative influences and outside pressure, and a
child’s character is not as well informed as an adult.
Further, defense counsel noted Morton’s traumatic past
experience in his life, in that Morton was 13 years old and
home at the time his father was murdered in the living room.
This traumatic situation and the lack of a constant, steady male
influence in his life during the very formative years of his life
rendered him incapable of properly responding to the violently
escalating situation during this incident.
Defense counsel further pointed out that it was Morton’s
assertion he was not the one who originally obtained the gun
used in this particular incident, that he did not have a reputa-
tion for carrying guns, that Morton was not involved in the
original circumstances that led to the altercation, and that
Morton believed he was responding to a perceived threat when
he fired the shot.
Defense counsel also asserted Morton did not have any
intent to kill the victim in this incident. Rather, the statements
provided by Morton suggested that he fired one shot from
across the street with a trajectory that was well over the heads
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STATE v. MORTON
Cite as 310 Neb. 355of anyone standing in the yard, but that the victim “was in
an elevated position on the porch, and that’s where the bullet
ended up striking him.”
Counsel asked the court to consider that during the 511
days Morton was at the juvenile detention center, he received
66 credits toward his high school diploma, underwent ther-
apy and counseling, and received numerous positive reviews
from various teachers. Counsel submitted to the court that
Morton’s efforts during his time at the juvenile detention center
showed he is someone capable and willing for rehabilitation
and requested the court impose probation or a minimal period
of incarceration in order for Morton to have an opportunity for
a meaningful and productive life. Morton’s presentence inves-
tigation report (PSR) indicated he was at a medium-low risk
to reoffend.
When Morton was given the chance to make a statement,
he said, “I just want to take full responsibility for what I did.
To the family, because I know how it feels to grow up without
a father, I ask if they could forgive me for that, and yeah. So
that’s all I got to say.”
The State asked for sentences of incarceration, noting that
the social group conflict and handguns made it predictable that
someone was going to get hurt or killed. The State pointed out
that Morton pulled the trigger, that he took a life, and that there
are consequences for that behavior.
The district court stated it considered the PSR, as well as
a letter from defense counsel, the assessments, the private
investigator’s report, and character references from several
sources. The court noted specifically that it took into consid-
eration Morton’s young age, but also that someone lost his
life. The court observed that Morton had no criminal history.
The court acknowledged that no sentence handed down would
bring the victim back and that “[t]o say that this was a seri-
ous offense doesn’t do it justice . . . .” The court commented
on the extreme benefit Morton received as part of the plea
agreement.
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STATE v. MORTON
Cite as 310 Neb. 355Ultimately, the court stated,
Having regard for the nature and circumstances of the
crime, the history, character, and condition of [Morton],
I do find that imprisonment of [Morton] is necessary for
the protection of the public because the risk is substantial,
that during any period of probation, [he] would engage in
additional criminal conduct, and because a lesser sentence
would depreciate the seriousness of [his] crime and pro-
mote disrespect for the law.
The district court sentenced Morton to 15 to 20 years’ impris-
onment on count I and 30 to 40 years’ imprisonment on count
II, to be served consecutively, as § 28-1205(3) requires, with
credit for 570 days served.
Morton appealed to the Court of Appeals, assigning that
there was insufficient evidence to establish he possessed a fire-
arm during the commission of a felony, that the district court
abused its discretion in not imposing probation, that the terms
of incarceration imposed by the district court were excessive,
and that his trial counsel was ineffective by not objecting to
the State’s factual basis concerning the predicate felony for
the possession of a firearm charge and by not having an expert
witness evaluate Morton as to his development and behavior.
Court of Appeals’ Decision
The Court of Appeals found no merit in Morton’s insuffi-
cient evidence and ineffective assistance of counsel claims and
affirmed the district court’s sentence of 15 to 20 years’ impris-
onment for Morton’s manslaughter conviction. 5 However, the
Court of Appeals found the district court abused its discretion
in imposing a sentence of 30 to 40 years’ imprisonment for
Morton’s possession of a firearm during the commission of a
felony conviction and accordingly reduced it.
In finding an abuse of discretion regarding Morton’s sen-
tence on count II, the Court of Appeals acknowledged the
5
State v. Morton, 29 Neb. App. 624, 957 N.W.2d 522 (2021).
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STATE v. MORTON
Cite as 310 Neb. 355facts in the PSR that addressed the customarily considered
factors, but also compared the sentence imposed on Morton to
different Nebraska cases which it determined involved simi-
larly situated defendants convicted of like crimes. 6 The Court
of Appeals found instructive the cases of State v. Neuberger 7
(20 to 20 years’ imprisonment on manslaughter conviction
with consecutive 10 to 15 years’ imprisonment on firearm
conviction); State v. Iromuanya 8 (25 to 35 years’ imprisonment
on attempted second degree murder conviction, life to life
imprisonment on second degree murder conviction that was
reduced to 50 years’ to life imprisonment, and 10 to 20 years’
imprisonment on each of two weapon convictions, all to be
served consecutively); State v. Aragon 9 (concurrent terms of
14 to 20 years’ imprisonment on each of two robbery convic-
tions and concurrent sentence of 3 to 5 years’ imprisonment
on weapon conviction); and State v. Bradley 10 (number of seri-
ous sentences imposed across number of cases which included
convictions for terroristic threats, weapons charges, and other
charges). These cases involved convictions of possession of a
firearm during the commission of a felony or use of a weapon
to commit a felony and various underlying felonies committed
by defendants from 16 years of age to 23 years of age.
Comparing these cases to the current one, the Court of
Appeals determined that the district court did not abuse its
discretion in sentencing Morton to 15 to 20 years’ imprison-
ment for his manslaughter conviction, but found that the sen-
tence of 30 to 40 years’ imprisonment for the possession of
6
Id.7
State v. Neuberger, No. A-13-411, 2014 WL 46420 (Neb. App. Jan. 7,
2014) (selected for posting to court website).
8
State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
9
State v. Aragon, No. A-17-450, 2018 WL 1597372 (Neb. App. Jan. 13,
2018) (selected for posting to court website).
10
State v. Bradley, No. A-17-644, 2018 WL 3868987 (Neb. App. Aug. 14,
2018) (selected for posting to court website).
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STATE v. MORTON
Cite as 310 Neb. 355a firearm during the commission of a felony conviction was
an abuse of the district court’s discretion.
The Court of Appeals acknowledged that possession of a
firearm during the commission of a felony carries with it a
potential sentence of 1 to 50 years’ imprisonment 11 and that no
two criminal cases are alike, because unique factors may prove
determinative when a court considers a sentence. However,
the Court of Appeals, in comparing the facts and outcome of
Morton’s case to the other Nebraska cases discussed, found
Morton’s sentence to be an “extreme outlier.” 12 It also found it
“incongruous that the sentence for Morton’s weapons convic-
tion should be double that of his sentence for manslaughter”
and believed that the “disproportionate nature of the two sen-
tences” was “logically inconsistent” and that the disparity was
not explained by the district court on the record. 13
The Court of Appeals noted, further, that neither the factual
basis nor the PSR showed Morton intentionally shot the victim,
but, rather, that Morton’s actions took place amidst a “chaotic,
melee-like atmosphere” and that there was nothing to suggest
that Morton aimed his gun at the house with the intent to harm
any specific individual. 14 The Court of Appeals believed the
factual basis “best support[ed]” the conclusion that the predi-
cate felony for Morton’s weapon conviction was unlawful dis-
charge of a firearm, not manslaughter, for which Morton was
convicted, or even assault. 15 However, the Court of Appeals did
not reverse Morton’s conviction of manslaughter, which was
not challenged on direct appeal.
Especially considering Morton’s young age and background
and the fact that similarly situated defendants received sig-
nificantly lower sentences on similar charges, the Court of
11
Neb. Rev. Stat. § 28-105 (Reissue 2016).
12
State v. Morton, supra note 5, 29 Neb. App. at 642, 957 N.W.2d at 537.
13
Id.
14
Id. at 643, 957 N.W.2d at 537.
15
Id.
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STATE v. MORTON
Cite as 310 Neb. 355Appeals believed that the district court’s reasons and rulings
were untenable and that Morton was denied a just result in sen-
tencing. 16 Accordingly, the Court of Appeals found Morton’s
sentence of 30 to 40 years’ imprisonment on count II to be
excessive and, through its statutory authority in Neb. Rev. Stat.
§ 29-2308(1) (Reissue 2016) that allows an appellate court
to reduce a sentence rendered by the district court, reduced
Morton’s sentence on count II to a sentence of 10 to 15 years’
imprisonment to run consecutively to the sentence imposed by
the district court for Morton’s manslaughter conviction. 17
We granted the State’s petition for further review.
ASSIGNMENT OF ERROR
The State assigns that the Court of Appeals erred in find-
ing that the district court abused its discretion in its sentence
imposed for count II, possession of a firearm in the commis-
sion of a felony.
STANDARD 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. 18 A judicial abuse of discretion exists only
when the reasons or rulings of a trial judge are clearly unten-
able, unfairly depriving a litigant of a substantial right and
denying a just result in matters submitted for disposition. 19
ANALYSIS
Under § 29-2308(1), the appellate court “may” reduce the
sentence rendered by the district court “when in its opinion
the sentence is excessive.” Where, as here, a sentence imposed
within the statutory limits is alleged on appeal to be exces-
sive, the appellate court must determine whether a sentencing
16
Id.
17
State v. Morton, supra note 5.
18
State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021).
19
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STATE v. MORTON
Cite as 310 Neb. 355court abused its discretion in considering and applying the
relevant factors as well as any applicable legal principles in
determining the sentence to be imposed. 20
[3] It is well established that an appellate court will not
disturb sentences within the statutory limits unless the district
court abused its discretion in establishing the sentences. 21 When
sentences imposed within statutory limits are alleged on appeal
to be excessive, the appellate court must determine whether
the sentencing court abused its discretion in considering well-
established factors and any applicable legal principles. 22
[4,5] 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. 23 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 cir-
cumstances surrounding the defendant’s life. 24
[6,7] We find that it was inappropriate for the Court of
Appeals to second-guess the district court’s discretion in sen-
tencing Morton under the crime of possession with the predi-
cate offense of manslaughter, by opining the State’s factual
basis “best” supported a crime he was not convicted of, unlaw-
ful discharge of a firearm. 25 So long as the facts provide
a sufficient basis to find all elements beyond a reasonable
20
State v. Stabler, 305 Neb. 415, 940 N.W.2d 572 (2020).
21
State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).
22
State v. Greer, supra note 18.
23
See id.24
Id.25
§ 28-1212.02.
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STATE v. MORTON
Cite as 310 Neb. 355doubt for the crimes the defendant is convicted of, whether
an alternative crime fits those facts “best” is a matter of
prosecutorial discretion and not a reason to question the trial
court’s sentence on the crimes found to have been committed.
Prosecutorial discretion is an inherent executive power under
which the prosecutor has the discretion to choose to charge
any crime that probable cause will support or, if the prosecutor
chooses, not to charge the accused at all. 26
We also find the Court of Appeals’ reasoning that “[t]here
is no suggestion that Morton aimed his gun at the house with
the intent to harm any specific individual” to be misleading. 27
The intent to harm a specific individual is not dispositive of
the elements of manslaughter. Nor would it have been dis-
positive of second degree murder, which Morton was originally
charged with.
[8] To illustrate, second degree murder requires causing the
death of “a person” intentionally, but without premeditation. 28
In the context of a criminal statute, “intentionally” means will-
fully or purposely, and not accidentally or involuntarily. 29 But
it is a fundamental maxim of criminal law that a trier of fact
may infer that the defendant intended the natural and probable
consequences of the defendant’s voluntary acts. 30
Thus, in State v. Jones, 31 we affirmed the defendant’s con-
victions for first degree murder, use of a deadly weapon, and
possession of a deadly weapon by a prohibited person (and
his sentences of life imprisonment for murder plus 10 to 20
years’ imprisonment on each of the other two convictions),
when the victim was killed after an altercation turned physical,
the defendant shot several shots into the air and then toward
26
See Polikov v. Neth, 270 Neb. 29, 699 N.W.2d 802 (2005).
27
State v. Morton, supra note 5, 29 Neb. App. at 643, 957 N.W.2d at 537.
28
§ 28-304(1).
29
See, e.g., State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015).
30
See 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(f) (3d ed. 2018).
31
State v. Jones, 293 Neb. 452, 878 N.W.2d 379 (2016).
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Cite as 310 Neb. 355the house, and where the victim, who was not part of the alter-
cation, had been standing on the porch. Similarly, in State v.
Moore, 32 we affirmed the defendant’s convictions for assault
in the first degree and use of a weapon to commit a felony
(and his sentence to two consecutive terms of 20 to 20 years’
imprisonment), when, without taking any real “‘aim,’” the
defendant fired one shot toward a house with little indication
anyone was home, the shot pierced the house, and it hit the
victim who was sitting inside, paralyzing her.
[9] Under the factual basis presented here, a trier of fact
could infer that Morton, intentionally firing a lethal weapon
toward the front of the house and porch where several people
were congregating, had intended to cause the death of “a per-
son.” While there was no evidence Morton intended to harm
any specific individual, an indiscriminate killer is just as
culpable as one who targets a specific person. 33 The Court of
Appeals, by concluding the facts better fit the crime of unlaw-
ful discharge of a firearm, failed to recognize that the facts
could support that level of culpability, and that they indisput-
ably supported manslaughter, and thus, it was not an abuse
of discretion for the court to impose a commensurate level
of punishment.
[10] And while we note that the sentencing range for unlaw-
ful discharge is greater than that of manslaughter, it appears
the Court of Appeals also used its reasoning as to what crime
it believed better fit the facts to minimize the substantial bene­
fit Morton received from the plea bargain agreement. The
sentencing court took into account that but for his plea bar-
gain agreement, Morton would have been facing a charge of
second degree murder—in addition to unlawful discharge and
two charges of use of a firearm—instead of the manslaughter
and one count of possession of a firearm he was convicted
32
State v. Moore, 276 Neb. 1, 3, 751 N.W.2d 631, 633 (2008).
33
See People v. Perez, 50 Cal. 4th 222, 234 P.3d 557, 112 Cal. Rptr. 3d 310(2010).
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STATE v. MORTON
Cite as 310 Neb. 355of pursuant to the agreement. In deciding the appropriate
sentence, a sentencing court can account for the fact that
the defendant received a substantial benefit from a plea bar-
gain agreement. 34
Under the mandatory minimum of 20 years’ imprisonment
for second degree murder, the mandatory minimum of 3 years
for unlawful discharge, and the mandatory minimums of 5
years each for use of a firearm, running consecutively to the
underlying felonies, Morton would have faced a mandatory
minimum sentence of 33 years’ imprisonment but for the plea
bargain agreement. He would have been subject to a maximum
term of life imprisonment for the charge of second degree
murder alone and of 50 years’ imprisonment for each of the
other three charges. Under the amended complaint, in contrast,
Morton was subject to a combined minimum of only 1 year’s
imprisonment and a combined maximum of 70 years’ impris-
onment. The sentencing court did not abuse its discretion in
finding this significant.
[11] We find no support for the Court of Appeals’ reasoning
that it was “logically inconsistent” for Morton’s sentence on
the possession conviction to be “disproportionate[ly]” lengthy
in relation to his sentence on the predicate felony of man-
slaughter. While often the predicate crime is the more serious
crime, it is not necessarily so, and there is nothing in the statu-
tory scheme requiring proportionality between the sentences
imposed for the crimes of use or possession and the sen-
tences imposed for their predicate offenses. Similar arguments
have been rejected elsewhere. 35 We are unaware of any legal
inquiry pertinent to review of a defendant’s sentence, which
34
See State v. Elliott, 21 Neb. App. 962, 845 N.W.2d 612 (2014). See, also,
State v. Gibbs, 238 Neb. 268, 470 N.W.2d 558 (1991); State v. Leek, 192
Neb. 640, 223 N.W.2d 489 (1974); State v. Weidenfeller, 189 Neb. 505,
203 N.W.2d 784 (1973).
35
See State v. Roland, 162 So. 3d 558 (La. App. 2015) (life imprisonment
upon adjudication as third felony habitual offender not excessive, because
sentences for predicate offenses were very light).
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Cite as 310 Neb. 355analyzes proportionality vis-a-vis different sentences for dif-
ferent crimes imposed for the same defendant and arising from
the same series of events.
Instead, for a defendant who has been sentenced consecu-
tively for two or more crimes, we generally consider the aggre-
gate sentence to determine if it is excessive. 36 The “dispropor-
tionate” nature of Morton’s sentence for possession was that
the maximum sentence imposed by the court for manslaughter
was the maximum allowable by law, and the court apparently
believed the aggregate seriousness of the crime required a
higher aggregate sentence than would be possible if the court
imposed a sentence for possession that was less than the sen-
tence for manslaughter. We find no abuse of discretion in so
utilizing the statutory sentencing ranges available to it.
The Court of Appeals deemed Morton’s sentence to be an
“extreme outlier” 37 compared to the sentences imposed in the
other cases that it found “instructive,” 38 but it did so by looking
only at the crime of possession. While not necessarily agreeing
with the conclusion reached by the Court of Appeals in doing
so, when looking at Morton’s sentence in the aggregate, it
clearly is not an “extreme outlier.”
In Iromuanya, for example, we said that the defendant’s
sentence to a maximum of life imprisonment for second degree
murder was not excessive, because the defendant “arrived at
the party carrying a loaded, concealed handgun and used it
without justification to extinguish a life” in a “senseless act of
violence.” 39 We found excessive only the minimum term of life
imprisonment, which left the defendant ineligible for parole,
because the defendant had no significant criminal record or
36
See, e.g., State v. Becker, 304 Neb. 693, 936 N.W.2d 505 (2019); State v.
Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019); State v. Castaneda, 295
Neb. 547, 889 N.W.2d 87 (2017).
37
State v. Morton, supra note 5, 29 Neb. App. at 642, 957 N.W.2d at 537.
38
Id. at 640, 957 N.W.2d at 535.
39
State v. Iromuanya, supra note 8, 272 Neb. at 216, 719 N.W.2d at 295.
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Cite as 310 Neb. 355history of violence and “[t]he court could not have imposed
a more severe minimum term for second degree murder on
a hardened criminal with a lengthy history of violent felony
convictions.” 40 Here, in contrast, Morton was sentenced to a
minimum of 15 years’ imprisonment for manslaughter and 30
years’ imprisonment for possession, for an aggregate minimum
term of 45 years’ imprisonment with parole eligibility in half
that time. 41 We also note our decisions in Jones 42 and Moore 43
set forth above.
In any event, we have explained that “[t]he problem” with
appellate courts conducting comparative analyses of appellants’
sentences with sentences of “‘similar’” cases “is the difficulty
of determining that they were similar.” 44 “Referring only to
the printed opinions found in our published reports, we are
not able to fully comprehend the facts and circumstances with
which the sentencing judge had to deal.” 45
[12-14] Proportionality review conducted under the Eighth
Amendment considers each sentence individually to determine
whether it was grossly disproportionate to the crime. 46 We
have held that a comparative analysis is not mandatory in a
challenge under the Eighth Amendment and is “useful only to
validate an initial judgment that a sentence is so grossly dis-
proportionate to a crime as to be excessive.” 47 Review of an
excessive sentence claim under § 29-2308 is not subject to a
higher standard. In the context of excessive sentence claims,
we sometimes “refer[] to sentences imposed in other cases
40
Id.
41
See Neb. Rev. Stat. § 83-1,110 (Reissue 2014).
42
State v. Jones, supra note 31.
43
State v. Moore, supra note 32.
44
State v. Riley, 242 Neb. 887, 893, 497 N.W.2d 23, 27 (1993). See, also,
State v. Reynolds, 242 Neb. 874, 496 N.W.2d 872 (1993).
45
State v. Riley, supra note 44, 242 Neb. at 893, 497 N.W.2d at 27.
46
See State v. Becker, supra note 36.
47
State v. Riley, supra note 44, 242 Neb. at 893, 497 N.W.2d at 27.
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Cite as 310 Neb. 355as a means of illustrating an abuse of discretion,” 48 but we have
clearly held that appellate courts are under no duty to conduct a
de novo review of the record to determine whether a sentence
is proportionate. 49 To the contrary, once it is determined that
the sentence prescribed by statute is constitutional and that
the sentence imposed is within statutory limits, “the issue in
reviewing a sentence is not whether someone else in a different
case received a lesser sentence, but whether the defendant in
the subject case received an appropriate one.” 50
In sentencing Morton, the district court was under no obliga-
tion to conduct a comparative analysis of “similar” cases—an
inquiry that would be entirely impractical for trial courts to
undertake. Instead, the court properly considered the PSR and
accompanying letters, character references, and assessments.
It acknowledged Morton’s young age, but also focused on
the fact that someone lost his life from Morton’s actions. The
court further took into consideration the “extreme benefit” that
Morton received as part of the plea agreement in this case. The
court acknowledged that Morton did not have any criminal
history, but found that imprisonment of Morton was necessary
for the protection of the public, taking into account the nature
and circumstances of the crime and the history, character, and
condition of Morton. The court believed “a lesser sentence
would depreciate the seriousness of [Morton’s] crime and pro-
mote disrespect for the law.” There is no dispute that no part of
the district court’s sentence was outside of the relevant statu-
tory range.
[15] 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. 51 Morton’s
48
State v. Philipps, 242 Neb. 894, 897, 496 N.W.2d 874, 877 (1993).
49
Id.50
Id. See, also, State v. Sianouthai, 225 Neb. 62, 402 N.W.2d 316 (1987).
51
State v. Greer, supra note 18.
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Cite as 310 Neb. 355s­ entence properly reflected the seriousness of the crime com-
mitted and was supported by competent evidence. The fact of
the matter is Morton traveled with several others to an adver-
sary’s dwelling in order to continue a fight that had started
earlier that day, took a gun to the scene or took possession
of the gun from someone else upon arrival, deliberately shot
toward the porch where several individuals were present, and
ultimately hit someone, taking that person’s life. The power to
impose sentences is entrusted to the sentencing court and not to
an appellate court, 52 and the sentencing court did not abuse its
discretion in the exercise of that power.
CONCLUSION
We reverse the judgment of the Court of Appeals and
remand the cause with direction to affirm the judgment of the
district court.
Reversed and remanded with direction.
52
See State v. Philipps, supra note 48.
Cassel, J., concurring.
Mark Twain is reputed to have said that history does not
repeat, but it often rhymes. In this court’s decision today, which
I join in full, one finds a familiar verse from an old theme.
It began with a trilogy of decisions by this court reversing
decisions of the Nebraska Court of Appeals reducing sen-
tences which had been imposed by trial courts. 1 In the first
one, this court recognized that “minimum sentencing limita-
tions are a matter for the Legislature, and a sentence imposed
within those limitations a matter left to the discretion of the
sentencing court.” 2 The second one discounted comparative
analysis of sentences except to “validate an initial judgment
that a sentence is so grossly disproportionate to a crime as to
1
See, State v. Philipps, 242 Neb. 894, 496 N.W.2d 874 (1993); State v.
Riley, 242 Neb. 887, 497 N.W.2d 23 (1993); State v. Reynolds, 242 Neb.
874, 496 N.W.2d 872 (1993).
2
Reynolds, supra note 1, 242 Neb. at 877, 496 N.W.2d at 874.
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Cite as 310 Neb. 355be excessive.” 3 In the last decision, this court rejected the use
of Neb. Rev. Stat. § 29-2308 (Cum. Supp. 1992) to reduce
a sentence deemed excessive by the appellate court despite
its acknowledgment that the sentencing court had not abused
its discretion. 4 As pertinent to the situation here, the statute
remains unchanged. 5
A few years later, in reversing a Court of Appeals deci-
sion which had vacated probationary sentences and mandated
imprisonment, this court relied upon an earlier decision holding
that the same scope of review applies in the lenient sentence
context as applies in the excessive sentence context. 6 Thus, this
court determined, “regardless of whether an appellate court is
reviewing a sentence for its leniency or for its excessiveness,
a sentence imposed by a district court that is within the statu-
torily prescribed limits will not be disturbed on appeal unless
there appears an abuse of the trial court’s discretion.” 7
Only a short time after that, the Court of Appeals, with one
dissent, captured its view of this court’s then-recent precedent,
stating that “‘an appellate court . . . has an extremely limited
review of sentences, and sentences within statutory limits are
uniformly and routinely affirmed despite the appellate court’s
opinion of the sentence.’” 8 Thus, the majority said, “[s]o long
as a trial court’s sentence is within the statutorily prescribed
limits, is supported by competent evidence, and is not based
on irrelevant considerations, an appellate court cannot say that
the trial court has abused its discretion . . . .” 9 The dissenting
3
Riley, supra note 1, 242 Neb. at 893, 497 N.W.2d at 27.
4
See Philipps, supra note 1.
5
See § 29-2308(1) (Reissue 2016).
6
See State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999) (citing State
v. Jallen, 218 Neb. 882, 359 N.W.2d 816 (1984)).
7
Harrison, supra note 6, 255 Neb. at 1000, 588 N.W.2d at 562.
8
State v. Ruisi, 9 Neb. App. 435, 444, 616 N.W.2d 19, 27 (2000) (quoting
State v. Hopkins, 7 Neb. App. 895, 587 N.W.2d 408 (1998)).
9
Ruisi, supra note 8, 9 Neb. App. at 444, 616 N.W.2d at 26.
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“any sentence—without exception—that is within statutory
limits is not an abuse of discretion and thus not excessive.” 10
Further review was not sought in that appeal.
Nonetheless, this court soon disapproved the State v. Ruisi 11
majority opinion to the extent it suggested that a sentence
within statutory limits can never be the product of an abuse
of discretion. 12 In doing so, this court quoted the Ruisi dis-
sent’s observation that “‘[t]he Nebraska Supreme Court has
left the door ajar—however slightly. It has not foreclosed any
sentence within statutory limits from being excessive, but it
strongly [has] suggest[ed] it is a rare exception.’” 13 This court
also stated that the Ruisi dissent “sets forth an accurate char-
acterization of the law by which appellate courts must review
sentences claimed to be excessive.” 14
In the intervening years, instances of excessive or exces-
sively lenient sentences have indeed been rare. 15 On similarly
rare occasions, this court has on further review reversed an
intermediate appellate court’s conclusion that a sentencing
court abused its discretion. 16 This suggests to me that both sen-
tencing courts and intermediate appellate courts have largely
embraced their respective roles. Yet, recalling these jurispru-
dential developments seems worthwhile, because, in words
attributed to Winston Churchill, the farther backward you can
look, the farther forward you are likely to see.
10
Id. at 451, 616 N.W.2d at 31 (Buckley, District Judge, Retired, dissenting).
11
Ruisi, supra note 8.
12
State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).
13
Id. at 398, 622 N.W.2d at 917 (quoting Ruisi, supra note 8 (Buckley,
District Judge, Retired, dissenting)).
14
Decker, supra note 12, 261 Neb. at 398, 622 N.W.2d at 917.
15
See, e.g., State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006); State
v. Rice, 269 Neb. 717, 695 N.W.2d 418 (2005).
16
See, e.g., State v. Gibson, 302 Neb. 833, 925 N.W.2d 678 (2019); State v.
Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005).