State v. Ezell ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/04/2023 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. EZELL
Cite as 314 Neb. 825State of Nebraska, appellee, v.
John C. Ezell, appellant.
___ N.W.2d ___
Filed August 4, 2023. No. S-22-411.
1. Judges: Recusal: Appeal and Error. A motion requesting a judge to
recuse himself or herself on the ground of bias or prejudice is addressed
to the discretion of the judge, and an order overruling such a motion will
be affirmed on appeal unless the record establishes bias or prejudice as a
matter of law.
2. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Sentences. Generally, it is within a trial court’s discretion to direct that
sentences imposed for separate crimes be served either concurrently
or consecutively.
5. Sentences: Appeal and Error. For a defendant who has been sentenced
consecutively for two or more crimes, appellate courts generally con-
sider the aggregate sentence to determine if it is excessive.
6. Constitutional Law: Sentences: Appeal and Error. Whether a sen-
tence constitutes cruel and unusual punishment in violation of the
Eighth Amendment presents a question of law, which an appellate court
resolves independently of the lower court’s decision.
7. ____: ____: ____. When conducting a proportionality review under the
Eighth Amendment, each sentence is considered individually to deter-
mine whether it was grossly disproportionate to the crime. The issue on
review is whether the defendant received an appropriate sentence.
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STATE V. EZELL
Cite as 314 Neb. 8258. Judges: Recusal: Appeal and Error. Appellate review of the district
court’s denial of a motion for disqualification is a proper subject for
review on appeal only once a judgment has been rendered or a final
order has been made.
9. Judges: Recusal. It is a judge’s duty to disqualify himself or herself
whenever the judge’s impartiality might reasonably be questioned. This
duty exists even in the absence of a motion by a party and continues
throughout the proceedings.
10. Judges: Recusal: Waiver. A party cannot waive the disqualification of
a judge due to the judge’s personal bias or prejudice toward the party or
the party’s lawyer.
11. Judges: Recusal. Absent any direct personal connection to the proceed-
ing, a judge’s disqualification is not required as a matter of law.
12. Sentences: Appeal and Error. In reviewing a sentence, an appellate
court does not employ its discretion; instead, it reviews the sentence for
abuse by the trial court of its discretion.
13. Trial: Courts: Judgments. When a trial court exercises its discretion
within the limits prescribed by law, that judgment cannot be controlled
in the absence of an abuse of discretion.
Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed.
Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
John C. Ezell appeals from the district court’s overruling
of his motion for disqualification and his sentences follow-
ing his no contest pleas to four felony charges in relation to
an officer-involved shooting. Finding no error by the district
court, we affirm.
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STATE V. EZELL
Cite as 314 Neb. 825FACTUAL BACKGROUND
Circumstances of Offenses.
All four felony charges to which Ezell pleaded no contest
stem from the same incident. We recount the circumstances
of the incident as set forth in the factual basis presented at
the plea hearing, which was set forth by the State and supple-
mented by Ezell.
Three officers of the Omaha, Nebraska, police department
gang unit wanted to search the vehicle of an individual des-
ignated as a gang-affiliated person or known gang member, in
response to a tip that the individual was a prohibited person in
possession of a firearm. The officers located the individual’s
vehicle around the Miller Park area, which is known to the
gang unit as “Killer Park.” The officers drove an unmarked
black sedan with tinted windows and civilian license plates.
The officers were not in uniform; rather, they wore black bal-
listic vests that had a 2-inch by 4-inch patch on the front that
read “Police.”
The individual’s vehicle was parked, seemingly with the
engine running, in front of a fire hydrant when the officers
approached the vehicle on foot. The officers did not know
Ezell was in the vehicle. As they approached the vehicle and
before the officers made any contact, the vehicle drove away
at a normal rate of speed. As the officers returned to their
unmarked sedan, they exchanged comments, including “[T]hey
didn’t see us” and “I don’t think they knew we were cops.” The
officers followed the vehicle in their unmarked sedan.
After about three blocks, when the vehicle stopped at a
stop sign, one of the officers exited the unmarked sedan,
approached the vehicle, and placed a “stop stick” under one
of the vehicle’s tires to deflate it. As a result, the vehicle
rounded the corner and stopped after traveling no more than
a few car lengths. The unmarked sedan was equipped with
small police lights on one of its visors as well as with a siren.
Although it is not entirely clear from the factual basis, the
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Nebraska Supreme Court Advance Sheets
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STATE V. EZELL
Cite as 314 Neb. 825record from the sentencing hearing suggests the small police
lights were employed, while the siren was not.
The officer who placed the stop stick approached the vehi-
cle’s passenger side and blocked the door. The officer did not
announce his identity or issue any commands. The officer
heard Ezell state, “[W]hat’s going on[?]” Ezell discharged a
firearm, which resulted in an injury to the officer that was
described as “a flesh wound.” Ezell then exited the vehicle,
which the officers perceived to be an attempt to flee.
The two other officers exited the unmarked sedan and dis-
charged their firearms at Ezell. Ezell responded by discharging
his firearm at one of the two officers. Ezell was struck by the
officers’ fire. The police apprehended Ezell and recovered the
firearm. It was undisputed that at the time of the incident, Ezell
was a person legally prohibited from possessing a firearm.
Ezell asserted that he saw an armed man, dressed in black,
who positioned himself in front of the passenger door and
blocked it. Ezell maintained that he did not know the man was
a police officer and believed he was being “carjacked.” At least
one lay witness who observed these events reported that she
had been unable to identify any of the gang unit officers as
police officers, based on their attire and unmarked sedan.
Motion for Judicial Disqualification.
After the information against Ezell was filed, it was assigned
to the district court. Ezell timely filed a motion to disqualify
the trial judge under Neb. Rev. Code of Judicial Conduct
§ 5-302.11. At the hearing on the motion, Ezell offered an
affidavit in support, which was received by the court. Ezell
averred, in part, that the officers were classified as “‘victims’”
of the crimes for which Ezell was charged and that he learned
the trial judge was “married to a law-enforcement officer,
specifically, an active, on-the-job Douglas County Sheriff’s
Deputy with extensive experience in criminal investigations
and extensive professional relationships with other law-
enforcement agencies/officials/officers in the Omaha, Douglas
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STATE V. EZELL
Cite as 314 Neb. 825County, Nebraska area.” Ezell contended in his affidavit that
because the trial judge’s spouse was a law-enforcement offi-
cer, “and [because] the State alleges that [he] committed
serious and violent crimes directly against law-enforcement
officers, the circumstances of the matter demonstrate that
the Judge’s impartiality might reasonably be questioned.” No
other evidence was offered by Ezell or the State.
Ezell argued that because the victims were on-duty officers,
a reasonable person viewing the circumstances, who had no
vested interest in the outcome of the case, would question
the court’s impartiality. The State disagreed and argued that
Ezell failed to produce any specific evidence showing that
the judge could not be fair. The State reasoned that there was
no appearance of impropriety, because the judge had no per-
sonal relationship with the victims and no personal interest in
the outcome.
The court made no disclosures on the record 1 or any factual
findings. It “considered the affidavit that has been presented
here, [and] the argument.” The court overruled Ezell’s motion.
Ezell then filed an interlocutory appeal, which the Nebraska
Court of Appeals dismissed for lack of jurisdiction because the
order appealed from was not a final order. We denied Ezell’s
petition for further review.
No Contest Pleas.
Thereafter, Ezell pleaded no contest to four felony charges.
After the State presented its factual basis, the court asked
Ezell if there was anything he wished to add to the factual
basis. Ezell contributed substantial additional factual details
surrounding the incident. Neither party objected to any portion
of the factual basis.
After the court accepted Ezell’s pleas, the State provided,
but did not offer, the court with video from body-worn cam-
eras of two of the gang unit officers. The State told the
1
See Neb. Rev. Code of Judicial Conduct § 5-302.11(C).
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STATE V. EZELL
Cite as 314 Neb. 825court that it intended to offer the videos at sentencing and
make them a part of the presentence investigation. Ezell stated
on the record that he had no objection to the State’s providing
the court with the videos or to the court’s watching the videos
before the sentencing hearing. The court received the videos
as part of the presentence investigation. These videos were not
offered or received at sentencing, included in the presentence
investigation report (PSR), 2 or otherwise made a part of the
record on appeal.
Sentencing.
At sentencing, the court stated it had received and reviewed
the PSR. The bulk of the parties’ arguments referenced the
video evidence the State gave to the court at the plea hearing.
Ezell played various video clips of officers’ testimony, seem-
ingly from depositions that were not offered and are not in
the record on appeal. Ezell offered a copy of a digital media
presentation utilized during his argument, as well as a letter of
support, which the court received and made a part of the PSR.
However, neither of these documents is in the PSR or other-
wise in the appellate record.
Ezell’s argument in mitigation was focused on the facts that
at the time of the incident, Ezell believed he was a victim of a
carjacking, and that his actions were reasonable considering the
circumstances. For example:
At that moment [the] Officer [approaching] does not
identify himself as a police officer. He does not identify
himself as a law enforcement agent. He doesn’t say any-
thing. He is a man dressed in black. He’s emerged from
an all black vehicle. He provides no notice of any kind
that he’s a police officer. And yet that is to be imputed to
. . . Ezell.
The State countered that the carjacking theory was “ridic-
ulous” and “appalling.” It argued that Ezell showed “no
2
See Neb. Rev. Stat. § 29-2261 (Cum. Supp. 2020).
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STATE V. EZELL
Cite as 314 Neb. 825measure of remorse.” Additionally, the State emphasized
Ezell’s criminal history to the court.
Relevant to Ezell’s appeal, the court noted that Ezell was
at a very high risk for reoffending; that his criminal his-
tory showed “multiple felonies, multiple gun charges, multiple
resistance and non-cooperation with the law”; and that he was
on federal supervised release at the time he committed the
instant offenses. The court acknowledged:
[There was] argument as to mitigation of these charges,
but you do stand convicted of the . . . four felonies. And
these four felonies involve violence. These four felonies
have a wide range. And in determining what would be an
appropriate sentence, [the court takes] into consideration
everything that happened, everything that has happened
since then, and your past criminal history.
The court stated that it had reviewed the videos, police
reports, medical information, victim impact statements, and
witness accounts and had fashioned a total sentence it thought
appropriate under the circumstances, one that would not depre-
ciate the seriousness of Ezell’s actions or promote disrespect
for the law.
The court sentenced Ezell to consecutive terms of incar-
ceration for a total of 96 to 116 years’ 3 imprisonment: 40 to
45 years’ imprisonment for assault on an officer, a Class ID
felony 4; 26 to 30 years’ imprisonment for attempted assault
on an officer in the first degree, a Class II felony 5; 10 to 16
years’ imprisonment for possession of a deadly weapon (fire-
arm) during the commission of a felony, a Class II felony 6;
and 20 to 25 years’ imprisonment for possession of a deadly
weapon by a prohibited person, a Class ID felony. 7 The
3
See Neb. Rev. Stat. § 28-105 (Reissue 2016).
4
Neb. Rev. Stat. § 28-929(2) (Reissue 2016).
5
Neb. Rev. Stat. §§ 28-201(3)(a) (Reissue 2016) and 28-929.
6
Neb. Rev. Stat. § 28-1205(2)(c) (Reissue 2016).
7
Neb. Rev. Stat. § 28-1206 (Cum. Supp. 2020).
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STATE V. EZELL
Cite as 314 Neb. 825district court stated that absent any loss of good time, Ezell
will first be eligible for parole after he serves 51 years, and
that his mandatory discharge date would be after he serves 61
years. Ezell filed a timely appeal, and we moved his appeal
to our docket. 8
ASSIGNMENTS OF ERROR
Ezell assigns that the district court erred when it abused its
discretion by (1) denying his motion to disqualify, (2) order-
ing him to serve excessive sentences, (3) ordering him to
serve consecutive sentences, and (4) imposing sentences that
constituted cruel and unusual punishment in violation of the
Eighth Amendment.
STANDARD OF REVIEW
[1] A motion requesting a judge to recuse himself or herself
on the ground of bias or prejudice is addressed to the discre-
tion of the judge, and an order overruling such a motion will
be affirmed on appeal unless the record establishes bias or
prejudice as a matter of law. 9
[2,3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. 10 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. 11
[4,5] Generally, it is within a trial court’s discretion to
direct that sentences imposed for separate crimes be served
either concurrently or consecutively. 12 For a defendant who
8
See, Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022); Neb. Ct. R. App. P.
§ 2-102(C) (rev. 2022).
9
State v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017).
10
State v. Hines, 313 Neb. 685, 985 N.W.2d 625 (2023).
11
State v. Abligo, 312 Neb. 74, 978 N.W.2d 42 (2022). See State v. Trevino,
230 Neb. 494, 432 N.W.2d 503 (1988).
12
State v. Canaday, 307 Neb. 407, 949 N.W.2d 348 (2020).
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STATE V. EZELL
Cite as 314 Neb. 825has been sentenced consecutively for two or more crimes, we
generally consider the aggregate sentence to determine if it
is excessive. 13
[6,7] Whether a sentence constitutes cruel and unusual
punishment in violation of the Eighth Amendment presents
a question of law, 14 which an appellate court resolves inde-
pendently of the lower court’s decision. 15 When conducting a
proportionality review under the Eighth Amendment, each sen-
tence is considered individually to determine whether it was
grossly disproportionate to the crime. 16 The issue on review is
whether the defendant received an appropriate sentence. 17
ANALYSIS
Time to Appeal Denial of
Judicial Disqualification.
As a preliminary matter, Ezell asserts that “there is a con-
flict in Nebraska law regarding the proper time for a criminal
defend­ant to initiate an appeal from an adverse ruling regard-
ing a motion to disqualify/recuse.” 18 The State disagrees and
correctly points out that the overruling of a motion to disqual-
ify is not a final, appealable order. 19
However, as Ezell points out, our prior case law contains
the following proposition: “Once a case has been litigated,
an appellate court will not disturb the denial of a motion
to disqualify a judge and give litigants a second bite at the
13
State v. Morton, 310 Neb. 355, 966 N.W.2d 57 (2021).
14
State v. Becker, 304 Neb. 693, 936 N.W.2d 505 (2019).
15
State v. Fernandez, 313 Neb. 745, 986 N.W.2d 53 (2023).
16
See, State v. Morton, supra note 13; State v. Becker, supra note 14.
17
See State v. Morton, supra note 13.
18
Brief for appellant at 19.
19
See, Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017); State of
Florida v. Countrywide Truck Ins. Agency, 270 Neb. 454, 703 N.W.2d 905(2005).
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STATE V. EZELL
Cite as 314 Neb. 825apple.” 20 This proposition predates our decision in Heckman v.
Marchio, 21 where we unanimously abrogated the “Richardson
exception,” 22 referring to a judicially constructed exception to
the final order doctrine that allowed an interlocutory appeal
from a denial of a motion to disqualify. Because we have
abrogated that exception, the cited proposition is no longer a
correct statement of law.
[8] Appellate review of the district court’s denial of a motion
for disqualification is a proper subject for review on appeal
only once a judgment has been rendered or a final order has
been made. In Ezell’s case, as the Court of Appeals already
determined, his interlocutory appeal was improper. However,
Ezell’s appeal after sentencing is from a judgment and, there-
fore, is properly before us now.
Waiver of Judicial Disqualification.
Before turning to the merits of Ezell’s appeal, we first
consider the State’s argument that by entering his no contest
pleas, Ezell waived his right to appeal from the district court’s
overruling of his motion to disqualify. It contends that Ezell
waived his right to an impartial judge because the voluntary
entry of a guilty plea or a plea of no contest waives “every
defense to a charge, whether the defense is procedural, statu-
tory, or constitutional.” 23
The right to an impartial judge is guaranteed under the
Due Process Clauses of the U.S. and Nebraska Constitutions,
20
In re Interest of J.K., 300 Neb. 510, 517, 915 N.W.2d 91, 97 (2018). See,
State v. Buttercase, supra note 9; Blaser v. County of Madison, 285 Neb.
290, 826 N.W.2d 554 (2013); Tierney v. Four H Land Co., 281 Neb. 658,
798 N.W.2d 586 (2011); McCully, Inc. v. Baccaro Ranch, 279 Neb. 443,
778 N.W.2d 115 (2010); CenTra, Inc. v. Chandler Ins. Co., 248 Neb. 844,
540 N.W.2d 318 (1995).
21
Heckman v. Marchio, supra note 19.
22
Id. at 464, 894 N.W.2d at 301. See Richardson v. Griffiths, 251 Neb. 825,
560 N.W.2d 430 (1997), overruled, Heckman v. Marchio, supra note 19.
23
Brief for appellee at 18 (citing State v. Manjikian, 303 Neb. 100, 927
N.W.2d 48 (2019)).
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STATE V. EZELL
Cite as 314 Neb. 825the parameters of which are coextensive. 24 “It is axiomatic
that ‘[a] fair trial in a fair tribunal is a basic requirement of
due process.’” 25 The U.S. Supreme Court has held that “[d]ue
process guarantees ‘an absence of actual bias’ on the part of a
judge” 26 and that even in the absence of actual bias, disquali-
fication “is required when, objectively speaking, ‘the prob-
ability of actual bias on the part of the judge or decisionmaker
is too high to be constitutionally tolerable.’” 27 To determine
whether the probability is too high, “the test requires only a
showing of an undue risk of bias, based on the psychological
temptations affecting an ‘average judge.’” 28
An insistence on the appearance of neutrality is not some
artificial attempt to mask imperfection in the judicial
proc­ess, but rather an essential means of ensuring the
reality of a fair adjudication. Both the appearance and
reality of impartial justice are necessary to the public
legitimacy of judicial pronouncements and thus to the rule
of law itself. When the objective risk of actual bias on
the part of a judge rises to an unconstitutional level, the
failure to recuse cannot be deemed harmless. 29
[9] Moreover, while litigants normally need to take the
initiative in litigation, judicial disqualification is an exception
to the norm. The Nebraska Revised Code of Judicial Conduct
says that a judge “shall perform all duties of judicial office
24
State v. Fuentes, 302 Neb. 919, 926 N.W.2d 63 (2019).
25
Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 876, 129 S. Ct. 2252,
173 L. Ed. 2d 1208 (2009) (quoting In re Murchison, 349 U.S. 133, 75 S.
Ct. 623, 99 L. Ed. 942 (1955)).
26
Williams v. Pennsylvania, 579 U.S. 1, 8, 136 S. Ct. 1899, 195 L. Ed. 2d
132 (2016) (quoting In re Murchison, supra note 25).
27
Rippo v. Baker, 580 U.S. 285, 287, 137 S. Ct. 905, 197 L. Ed. 2d 167(2017) (quoting Withrow v. Larkin, 421 U.S. 35, 95 S. Ct. 1456, 43 L. Ed.
2d 712 (1975)).
28
Echavarria v. Filson, 896 F.3d 1118, 1128 (9th Cir. 2018) (citing Caperton
v. A. T. Massey Coal Co., supra note 25).
29
Williams v. Pennsylvania, supra note 26, 579 U.S. at 15-16.
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Cite as 314 Neb. 825fairly and impartially.” 30 It is a judge’s duty to disqualify him-
self or herself whenever “the judge’s impartiality might rea-
sonably be questioned.” 31 This duty exists even in the absence
of a motion by a party and continues throughout the proceed-
ings. 32 Judges are under a continuing obligation to disqualify
themselves whenever their impartiality may be reasonably
questioned, and although a judge may initially be free from
bias and prejudice, disqualification may well become neces-
sary over the course of a proceeding. 33
[10] As the Nebraska Revised Code of Judicial Conduct
provides, a judge should disclose on the record any informa-
tion that the judge believes the parties or their lawyers “might
reasonably consider relevant to a possible motion for dis-
qualification, even if the judge believes there is no basis for
disqualification.” 34 Upon such disclosure, particular enumer-
ated grounds for disqualification can be waived by the parties
after consideration “outside the presence of the judge and court
personnel.” 35 However, a party cannot waive the disqualifica-
tion of a judge due to the judge’s personal bias or prejudice
toward the party or the party’s lawyer. 36 It is a necessary com-
ponent of due process.
Merits of Ezell’s Motion for Disqualification.
Turning to the merits of Ezell’s motion for disqualifica-
tion, Ezell argues that the district court erred in denying his
30
Neb. Rev. Code of Judicial Conduct § 5-302.2.
31
Neb. Rev. Code of Judicial Conduct § 5-302.11(A).
32
See Neb. Rev. Code of Judicial Conduct § 5-302.11, comment 2. See, also,
Fowler v. Butts, 829 F.3d 788 (7th Cir. 2016).
33
See Neb. Rev. Code of Judicial Conduct § 5-302.11. See, also, Caperton v.
A. T. Massey Coal Co., supra note 25.
34
Neb. Rev. Code of Judicial Conduct § 5-302.11, comment 5.
35
See Neb. Rev. Code of Judicial Conduct § 5-302.11(C).
36
See Neb. Rev. Code of Judicial Conduct § 5-302.11(A)(1) and (C). See,
also, Fowler v. Butts, supra note 32.
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Cite as 314 Neb. 825motion because the judge’s spouse is an active-duty, on-duty
law enforcement officer and the victims of the charged offenses
are on-duty law enforcement officers. The State disagrees and
contends that there was nothing more than a de minimis inter-
est, which could not raise a reasonable question regarding the
judge’s impartiality, and that therefore, the judge did not err in
overruling Ezell’s motion.
“Impartial” means, in part, the “absence of bias or prejudice
in favor of, or against, particular parties or classes of parties.” 37
A judge must recuse himself or herself from a case if the
judge’s impartiality might reasonably be questioned, which can
occur even in the absence of an enumerated circumstance. 38
Indeed, “a judge is disqualified whenever the judge’s impar-
tiality might reasonably be questioned, regardless of whether
any of the specific provisions of paragraphs (A)(1) through (6)
apply.” 39 Thus, whether there is only a de minimus interest is
not dispositive.
When evaluating a trial judge’s alleged bias, the question
is whether a reasonable person who knew the circumstances
of the case would question the judge’s impartiality under an
objective standard of reasonableness, even though no actual
bias or prejudice was shown. 40 In other words, the question
is not simply whether someone could conceivably question a
judge’s impartiality. 41
It is presumed that all judges in this state carry out all
of their duties competently and diligently. 42 One such duty
is that judges have a responsibility to “hear and decide
37
Neb. Rev. Code of Judicial Conduct, Terminology.
38
State v. Buttercase, supra note 9. See Neb. Rev. Code of Judicial Conduct
§ 5-302.11(A).
39
Neb. Rev. Code of Judicial Conduct § 5-302.11, comment 1.
40
State v. Buttercase, supra note 9.
41
See Burke v. Regalado, 935 F.3d 960 (10th Cir. 2019).
42
See Neb. Rev. Code of Judicial Conduct § 5-302.5 (rev. 2018).
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Cite as 314 Neb. 825matters assigned to the judge, except when disqualification is
required.” 43 In so doing, every judge “shall uphold and apply
the law, and shall perform all duties of judicial office fairly and
impartially.” 44 In addition:
(A) A judge shall not be swayed by public clamor or
fear of criticism.
(B) A judge shall not permit family, social, political,
financial, or other interests or relationships to influence
the judge’s judicial conduct or judgment.
(C) A judge shall not convey or permit others to con-
vey the impression that any person or organization is in a
position to influence the judge. 45
Accordingly, a defendant seeking to disqualify a judge on the
basis of bias or prejudice bears the heavy burden of overcom-
ing the presumption of judicial impartiality. 46
Ezell contends that in the instant case, a reasonable person
would question the trial judge’s impartiality under an objec-
tive standard of reasonableness because the judge’s spouse
was a law enforcement officer with extensive relationships
in the Omaha area. We understand Ezell’s position to be that
a reasonable person knowing this circumstance would ques-
tion the impartiality of the judge because the judge’s spouse
could have been in the position of the victims of the charged
crimes. At its core, Ezell’s assertion is that such a circum-
stance creates an undue risk of implicit bias, such that the
judge is biased or prejudiced as a matter of law.
But we decline to hold that a judge is disqualified as a
matter of law whenever a victim of a crime has commonali-
ties with someone in the judge’s family. Absent a direct per-
sonal connection to the proceeding, we cannot conclude that
a reasonable person who knew the circumstances of the case
43
Neb. Rev. Code of Judicial Conduct § 5-302.7.
44
Neb. Rev. Code of Judicial Conduct § 5-302.2.
45
Neb. Rev. Code of Judicial Conduct § 5-302.4.
46
State v. Buttercase, supra note 9.
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Cite as 314 Neb. 825would reasonably question a judge’s impartiality. 47 “Extensive
relationships” that do not include direct connections are not
enough to create a reasonable specter of partiality or an undue
risk of bias such that disqualification is required as a matter
of law.
[11] A judge must disqualify himself or herself whenever the
judge’s impartiality might reasonably be questioned. However,
absent any direct personal connection to the proceeding, a
judge’s disqualification is not required as a matter of law.
Because neither the trial judge nor the judge’s spouse had any
direct personal connection to the proceeding, we find no error
in the district court’s decision.
Sentencing.
Ezell assigns that the district court abused its discretion by
imposing excessive and consecutive sentences and that those
sentences violated the Cruel and Unusual Punishment Clause
of the Eighth Amendment. It is undisputed that Ezell’s sen-
tences are within the statutory limits for each offense.
Where a sentence imposed within the statutory limits is
alleged on appeal to be excessive, the appellate court must
determine whether a sentencing court abused its discretion in
considering and applying the relevant factors, as well as any
applicable legal principles in determining the sentence to be
imposed. 48 When imposing a sentence, the sentencing court is
to consider the defendant’s (1) age, (2) mentality, (3) educa-
tion 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 com-
mission of the crime. 49
47
See U.S. v. Norwood, 854 F.3d 469 (8th Cir. 2017) (quoting Williams v.
Pennsylvania, supra note 26). See, also, U.S. v. Williams, 949 F.3d 1056(7th Cir. 2020) (discussing cases).
48
State v. Hines, supra note 10.
49
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STATE V. EZELL
Cite as 314 Neb. 825While these factors should instruct a sentencing court, they
do not comprise a mathematical formula that must be rigidly
implemented. 50 Rather, they are among the relevant factors that
may be considered. 51 A sentence should be tailored and based
on factors that fit the offender and not merely the crime. 52
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. 53
Ezell asserts that the district court failed to consider, or over-
simplified, the undisputed factual record; failed to consider
the sentencing factors within Neb. Rev. Stat. § 29-2260(2)
(Reissue 2016); and failed to sufficiently set forth its ratio-
nale for the sentences imposed. Additionally, Ezell avers that
criminal defendants lack meaningful appellate review of the
issue of excessive sentences in Nebraska and that the mat-
ter is simply a pro forma exercise of whether the sentence is
within the statutory limits for the offense. He further urges
us to employ a comparative approach in our review of sen-
tences for the purpose of considering the proportionality of
sentences under the Eighth Amendment, wherein the sentence
of one offender would be compared to those of others for the
same offense.
First, we disagree with Ezell that the district court gave
insufficient consideration in fashioning his sentences. The
record belies Ezell’s assertions in this regard. The bill of
exceptions of the sentencing hearing shows that the parties
made extensive arguments before the district court and that the
court had a thorough understanding of the record, Ezell’s PSR,
and the arguments made by both parties. Further, the court
50
State v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021).
51
Id.52
Id.53
State v. Johnson, ante p. 20, 988 N.W.2d 159 (2023).
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STATE V. EZELL
Cite as 314 Neb. 825expressly considered the factors under § 29-2260(2) and fash-
ioned sentences it thought appropriate under the circumstances,
sentences that would not depreciate the seriousness of Ezell’s
actions or promote disrespect for the law.
As to Ezell’s other arguments, we have already considered
and discussed them in detail in State v. Morton. 54 Ultimately,
Ezell misunderstands the role of an appellate court in review-
ing sentences imposed by a trial court.
[12,13] It has long been recognized that sentencing is a
matter that rests with the trial court. 55 In reviewing a sentence,
an appellate court does not employ its discretion; instead, it
reviews the sentence for abuse by the trial court of its discre-
tion. 56 The Legislature has provided trial courts with significant
discretion in sentencing, such as their discretion to impose 1 to
50 years’ imprisonment for Class II felonies and their discre-
tion to order sentences to be served consecutively or concur-
rently. 57 When a trial court exercises its discretion within the
limits prescribed by law, that judgment cannot be controlled in
the absence of an abuse of discretion. 58
At argument, Ezell conceded that fashioning an appropriate
sentence that is tailored to each individual offender is no easy
task. It is certainly one that trial courts do not take lightly. Yet,
the appropriateness of the sentence is necessarily a subjective
judgment left mainly to the trial court’s discretion, and the
boundaries of that discretion are a matter for the Legislature.
We recognize that Ezell’s aggregate sentence is substantial.
So, too, is his criminal history and his risk of reoffending. We
also recognize that the parties provided the district court with
more information than is in the record on appeal.
54
State v. Morton, supra note 13.
55
See, e.g., Geiger v. State, 6 Neb. 545 (1877).
56
See, e.g., Morrison v. State, 13 Neb. 527, 14 N.W. 475 (1882).
57
See § 28-105.
58
See, e.g., Wright v. State, 45 Neb. 44, 63 N.W. 147 (1895).
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STATE V. EZELL
Cite as 314 Neb. 825Our review for an abuse of discretion is key. 59 The standard
is not what sentences we would have imposed. 60 As the U.S.
Supreme Court has noted, “‘[t]he law threatens certain pains
if you do certain things, intending thereby to give you a new
motive for not doing them. If you persist in doing them, it has
to inflict the pains in order that its threats may continue to be
believed.’” 61 On our review of the limited record, we cannot
say that the district court abused its discretion.
CONCLUSION
We conclude that the district court did not err in overruling
Ezell’s motion for disqualification and did not abuse its discre-
tion in fashioning Ezell’s sentences.
Affirmed.
59
State v. McGovern, 311 Neb. 705, 974 N.W.2d 595 (2022), cert. denied
___ U.S. ___, 143 S. Ct. 404, 214 L. Ed. 2d 201 (2022).
60
State v. Gibson, 302 Neb. 833, 925 N.W.2d 678 (2019).
61
Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000) (quoting Oliver Wendell Holmes, Jr., The Common Law 40
(Mark D. Howe ed. 1963)).