State v. Bol

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falsehood. This result demonstrates that without a remedial
procedure in place, hospital acknowledgments of paternity
easily become a child support system that is unconcerned
with actual paternity.24
McCormack, J., joins in this dissent.
24
See Ronald K. Henry, The Innocent Third Party: Victims of Paternity
Fraud, 40 Fam. L.Q. 51 (2006).
State of Nebraska, appellee, v. Yai Bol, also known as
Daniel D. Matit, appellant.
___ N.W.2d ___
Filed May 16, 2014. No. S-13-317.
1. Constitutional Law: Search and Seizure: Investigative Stops: Arrests:
Probable Cause. The Fourth Amendment guarantees the right to be free of
unreasonable search and seizure. This guarantee requires that an arrest be based
on probable cause and limits investigatory stops to those made upon an articu-
lable suspicion of criminal activity.
2. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, the appellate court reviews the trial
court’s findings for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that the appellate court reviews inde-
pendently of the trial court’s determination.
3. Criminal Law: Investigative Stops: Motor Vehicles: Police Officers and
Sheriffs. A traffic stop requires only that the stopping officer have specific and
articulable facts sufficient to give rise to a reasonable suspicion that a person has
committed or is committing a crime.
4. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable
Cause. If an officer has probable cause to stop a traffic violator, the stop is objec-
tively reasonable.
5. Investigative Stops: Police Officers and Sheriffs: Probable Cause. In deter-
mining whether there is reasonable suspicion for an officer to make an investiga-
tory stop, the totality of the circumstances must be taken into account.
6. ____: ____: ____. The factual basis for an investigatory stop need not arise from
the officer’s personal observation, but may be supplied by information acquired
from another person.
7. Investigative Stops: Arrests: Police Officers and Sheriffs: Probable Cause.
Under what is commonly called the collective knowledge doctrine, an officer
who does not have personal knowledge of the facts establishing probable cause
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for the arrest or reasonable suspicion for the stop may nevertheless make an
arrest or a stop if the officer is merely carrying out directions of another officer
who does have probable cause or reasonable suspicion.
8. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact. The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a rea-
sonable doubt.
9. Prior Convictions: Proof. In a proceeding to enhance punishment because of
prior convictions, the State has the burden of proving such prior convictions by a
preponderance of the evidence.
10. Prior Convictions: Records: Proof. The existence of a prior conviction and the
identity of the accused as the person convicted may be shown by any competent
evidence, including the oral testimony of the accused and duly authenticated
records maintained by the courts or penal and custodial authorities.
11. Drunk Driving: Prior Convictions: States. Under Nebraska law, a prior con-
viction for purposes of a prosecution for driving under the influence includes
any conviction under a law of another state if, at the time of the conviction,
the offense would have been a violation of Nebraska’s driving under the influ-
ence statutes.
12. Drunk Driving: Prior Convictions: States: Proof. Where prior convictions of
driving under the influence in other states are alleged as grounds for sentence
enhancement, the prosecutor is required to present a court-certified copy or an
authenticated copy of a prior conviction in another state which shall be prima
facie evidence of such prior conviction.
13. Criminal Law: Judgments: Records. A court has inherent power in a criminal
case to correct its records to reflect the “truth,” nunc pro tunc.
14. Judgments: Records. The purpose of an order nunc pro tunc is to correct a
record which has been made so that it will truly record the action had, which
through inadvertence or mistake was not truly recorded.
15. ____: ____. It is not the function of an order nunc pro tunc to change or revise
a judgment or order, or to set aside a judgment actually rendered, or to render an
order different from the one actually rendered, even though such order was not
the order intended.
16. Judgments. Clerical errors may be corrected by an order nunc pro tunc, but judi-
cial errors may not.
17. 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.
18. ____: ____. Where a sentence imposed within the statutory limits is alleged
on appeal to be excessive, the appellate court must determine whether the
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.
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19. Sentences. 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 amount of violence involved in the commission of the crime.
Appeal from the District Court for Lancaster County: Paul
D. Merritt, Jr., Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, Jennifer
M. Houlden, and, on brief, Elizabeth D. Elliott, for appellant.
Jon Bruning, Attorney General, George R. Love, and Joel R.
Rische, Senior Certified Law Student, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
Yai Bol, also known as Daniel D. Matit, was convicted of
one count of driving under the influence (DUI) with refusal of
a chemical test and one count of driving during revocation. He
appeals, challenging his convictions and sentences. Finding no
error, we affirm the judgment of the district court.
I. FACTS
An information filed in the district court for Lancaster
County charged Matit, also known as Bol, with three counts.
The charges arose out of a traffic stop that occurred on May 7,
2012. The information was later amended to charge Bol, also
known as Matit, with two counts: DUI with refusal of a chemi-
cal test, three prior convictions, and driving during revocation
or impoundment, first offense. Because the operative informa-
tion uses the name “Bol,” so will we in this opinion.
1. Motion to Suppress
Bol filed a motion to suppress evidence gathered during
the traffic stop, claiming police lacked probable cause to
initiate the stop. Sgt. Benjamin Miller of the Lincoln Police
Department testified at a hearing on the motion. Miller testi-
fied that he was on patrol in the area of 13th and E Streets
in Lincoln, Nebraska, at about 1:20 a.m. on May 7, 2012.
While traveling west, he saw a sport utility vehicle (SUV)
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traveling east toward his patrol car begin to make a right
turn at the intersection of 14th and E Streets, then erratically
change direction, and then make another erratic turn, so that
it ultimately made a complete U-turn and was heading west.
The SUV did not use turn signals. After the SUV turned to
head west, it almost immediately parked along the street.
As Miller passed the SUV, he noticed it was parked almost
3 feet from the curb, which he believed was a violation of a
city ordinance.
Miller decided to turn his car around and contact the driver
of the SUV. As he did so, he saw Officer Anthony Gratz of the
Lincoln Police Department turn onto E Street and drive toward
the parked SUV. Miller asked Gratz to make contact with the
driver of the SUV, because Gratz could get there more quickly.
Gratz was thus the first officer to contact the SUV driver;
Miller arrived shortly after Gratz.
After hearing this evidence, the district court denied Bol’s
motion to suppress. It found there was probable cause for
police to initiate contact with the driver of the SUV based on
Miller’s observations of the erratic driving, the failure to use
turn signals, and the manner in which the SUV was parked.
2. Trial
The case proceeded to a jury trial. At trial, Miller again
explained what he observed prior to contacting the driver of
the SUV and explained that he learned upon contacting the
driver that he was Bol. Miller testified that he immediately
noticed both that Bol had “bloodshot, watery eyes” and that
there was an “odor of alcoholic beverage coming” from Bol
and the SUV.
Bol agreed to participate in field sobriety tests, and Miller
administered three: the horizontal gaze nystagmus test, the
nine-step walk-and-turn test, and the one-leg stand test. Miller
testified that Bol showed signs of impairment on each test.
After Miller administered the tests, he placed Bol in his
patrol car and asked him to take a preliminary breath test.
Bol refused.
Miller then transported Bol to a detoxification center.
At the center, Miller read Bol a postarrest chemical test
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advisement form, which informed Bol that he was required
to take a chemical test and that refusal to do so was a sepa-
rate crime. Bol refused to submit to the chemical test. Miller
testified that after Bol refused the chemical test, Miller read
Bol his Miranda rights.1 Miller further testified that based
upon his experience and training, Bol was under the influence
of alcohol.
After Miller’s testimony, the State rested. Bol’s counsel
then moved for a directed verdict, which was denied. Counsel
for the State then informed the court, “I guess there’s an issue
we have to take up as far — There’s a trial stipulation that
did not get into evidence.” The court then acknowledged that
there had been no evidence presented on the charge of driv-
ing under revocation and asked, “So, are we going to take
out” that count? The State responded that it was asking for
leave to reopen its case in chief to submit a written stipula-
tion entered into by the parties on the revocation issue, which
stipulation it had inadvertently failed to offer into evidence.
Over Bol’s objection, the court allowed the State to offer the
written stipulation as an exhibit. The stipulation states that
on May 7, 2012, Bol’s driver’s license had been administra-
tively revoked.
Bol then testified in his own defense. He acknowledged
that he also goes by the name “Daniel Matit.” He stated that
he performed the U-turn because he was looking for a park-
ing spot and there was one available on the south side of the
street. He thought the turn might have been erratic because
his SUV was quite large and he was having trouble with its
power steering. Bol testified that he parked the SUV close to
the curb. He denied drinking on May 7, 2012, and testified
that Miller gave him Miranda warnings prior to asking him
to take a preliminary breath test. Bol stated that he refused
that test and the later chemical test based on his understand-
ing that anything he said or did could be used against him.
Bol admitted that he was read the postarrest chemical test
1
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
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advisement and that he understood it was a crime not to take
the test.
Gratz also testified and generally corroborated Miller’s tes-
timony about how the traffic stop occurred. He was unable to
recall many details about the stop, however. After deliberation,
the jury returned a verdict of guilty on both counts.
3. Sentencing
A sentence enhancement hearing was held on February 14,
2013. The State attempted to establish that Bol had three prior
DUI convictions: one in Hall County, Nebraska, and two in
Vermont. Bol objected to the Vermont convictions. After an
enhancement hearing, the district court entered an order finding
Bol had two prior DUI convictions, making the current convic-
tion a third offense. Four days later, the court entered an order
“nunc pro tunc,” finding Bol had three prior DUI convictions,
making the current conviction a fourth offense.
Bol was sentenced to 2 to 3 years’ imprisonment for fourth-
offense DUI with refusal of a chemical test and to 6 months’
imprisonment for driving under revocation, the sentences to
run concurrently. He filed this timely appeal.
II. ASSIGNMENTS OF ERROR
Bol assigns (1) the district court abused its discretion in
failing to grant the motion to suppress, (2) the district court
abused its discretion by allowing the State to reopen its case
after it rested, (3) the evidence adduced at trial was insufficient
to sustain a conviction for DUI with refusal of a chemical test,
(4) the district court erred in finding the Vermont convictions
were valid prior convictions for purposes of sentence enhance-
ment, (5) the district court erred in issuing the order nunc pro
tunc and changing the number of prior convictions from two
to three, and (6) the sentences imposed by the district court
were excessive.
III. ANALYSIS
1. Motion to Suppress
[1,2] The Fourth Amendment guarantees the right to be free
of unreasonable search and seizure. This guarantee requires that
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an arrest be based on probable cause and limits investigatory
stops to those made upon an articulable suspicion of criminal
activity.2 In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
we apply a two-part standard of review. Regarding historical
facts, we review the trial court’s findings for clear error. But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that we review independently of
the trial court’s determination.3
[3,4] Bol argues that the police lacked authority to contact
him. A traffic stop requires only that the stopping officer have
specific and articulable facts sufficient to give rise to a reason-
able suspicion that a person has committed or is committing
a crime.4 In this context, if an officer has probable cause to
stop a traffic violator, the stop is objectively reasonable.5 The
district court found there was probable cause for police to ini-
tiate contact with Bol, because Miller observed Bol’s erratic
driving, his failure to use turn signals, and the irregular man-
ner in which the SUV was parked. These findings of fact are
not clearly erroneous, and we agree they provided police with
at least the reasonable suspicion necessary to initiate contact
with Bol.
Bol contends the motion to suppress should have been
granted, because Gratz, the first officer to make contact with
him, did not personally testify about the facts justifying the
stop. Bol contends that it is “unreasonable that the Court
should rely upon an officer’s explanation of what another
officer considered appropriate grounds to initiate a traffic
stop.”6 But even assuming this is so, that is not what hap-
pened in this case. Miller testified about the grounds he con-
sidered appropriate to initiate the stop. And Miller testified
2
State v. Wollam, 280 Neb. 43, 783 N.W.2d 612 (2010).
3
Id.
4
Id.
5
See State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012), cert. denied ___
U.S. ___, 133 S. Ct. 158, 184 L. Ed. 2d 78.
6
Brief for appellant at 24.
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that based on those grounds, he asked Gratz to initiate contact
with Bol.
[5-7] In determining whether there is reasonable suspicion
for an officer to make an investigatory stop, the totality of
the circumstances must be taken into account.7 The factual
basis for a stop “‘need not arise from the officer’s personal
observation, but may be supplied by information acquired
from another person.’”8 Under what is commonly called the
collective knowledge doctrine, an officer who does not have
personal knowledge of the facts establishing probable cause
for the arrest or reasonable suspicion for the stop may never-
theless make an arrest or a stop if the officer is merely carry-
ing out directions of another officer who does have probable
cause or reasonable suspicion.9 It is thus clear that the relevant
analysis is whether the information Miller possessed justified
the traffic stop, not what information Gratz had prior to initi-
ating the stop. And as we have noted, the information Miller
possessed supplied reasonable suspicion to justify the initial
contact with Bol. The district court did not err in denying the
motion to suppress.
2. State’s R eopening of Its
Case in Chief
After it rested, the State requested leave to reopen its case
in chief in order to submit an exhibit that it had inadvertently
failed to offer into evidence. The court allowed the State to do
so. Bol asserts this was error.
In criminal prosecutions, the withdrawal of a rest in a trial
on the merits is within the discretion of the trial court.10 Bol
contends that the district court abused its discretion because it
7
See State v. Wollam, supra note 2.
8
Id. at 50, 783 N.W.2d at 620, quoting State v. Bowley, 232 Neb. 771, 442
N.W.2d 215 (1989).
9
State v. Wollam, supra note 2, citing State v. Wegener, 239 Neb. 946, 479
N.W.2d 783 (1992).
10
State v. Thomas, 236 Neb. 84, 459 N.W.2d 204 (1990), disapproved on
other grounds, State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999).
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“abused its position as a neutral party and encouraged the State
to reopen its case to present evidence.”11
Bol relies heavily on State v. Gray.12 In Gray, the defend­
ant was found guilty of forgery. An enhancement hearing was
held prior to his sentencing, and at that hearing, the State
offered three exhibits as evidence of his prior convictions and
then rested. The defendant was then granted a continuance.
Before the hearing resumed, the court, on its own motion,
notified all parties that the exhibits offered by the State
were not sufficient to prove the prior convictions, because
they contained no showing that the defendant had knowingly
and intelligently waived counsel at the time he pled to the
convictions. After receiving this notification from the court,
the State sought to withdraw its rest to present additional
evidence, and the court allowed it to do so. The defendant
appealed, and the Nebraska Court of Appeals concluded the
court had abused its discretion in allowing the State to with-
draw its rest. It reasoned that the judge had “departed from
his role as neutral fact finder” by informing the State that the
evidence was insufficient and then allowing the State to pro-
duce additional evidence.13
Two other Nebraska cases are also of import. In State v.
Thomas,14 the defendant was charged with failure to appear and
a jury trial was held. The State called two witnesses, offered
certain exhibits, and then rested. The defendant moved for a
directed verdict, contending the prosecution was barred by the
statute of limitations, because the State had failed to produce
evidence showing an exception to the statute of limitations
applied. The State then moved for leave to withdraw its rest in
order to adduce evidence on the issue, and the court allowed it
to do so. On appeal, the defendant contended this was an abuse
of discretion, because had the court not so acted, he would
11
Brief for appellant at 26.
12
State v. Gray, 8 Neb. Ct. App. 973, 606 N.W.2d 478 (2000), overruled in part
on other grounds, State v. Nelson, 262 Neb. 896, 636 N.W.2d 620 (2001).
13
Id. at 992, 606 N.W.2d at 495.
14
State v. Thomas, supra note 10.
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have been entitled to a directed verdict in his favor. We held
the court did not abuse its discretion in allowing the State to
withdraw its rest.
In State v. McKay,15 the defendant was charged with
assault by a confined person. After the State rested, the
defendant moved for a directed verdict, arguing the State
failed to prove that he was “legally” confined at the time of
the assault and thus failed to prove an element of the offense.
Although the court agreed with the defendant’s legal argu-
ment, it granted the State’s motion to withdraw its rest in
order to present additional evidence on the issue. On appeal,
the defendant contended this was an abuse of discretion,
because the court had concluded the State had failed to prove
its case prior to resting. The Court of Appeals found the facts
in McKay were comparable to those in Thomas, not those
in Gray. It reasoned that an abuse of discretion was found
in Gray not because the State was allowed to fill in gaps in
proof, but because the court failed to maintain the appearance
of impartiality.
The instant case is also much more similar to Thomas than
to Gray. It is true that without the evidence submitted by the
State after being allowed to withdraw its rest, Bol could not
have been convicted of driving during a period of revocation.
However, Thomas makes it clear that withdrawal of rest to
fill in gaps in proof is proper, as long as the court does not
advocate for or advise the State to withdraw its rest. Here,
Bol argues that the court alerted the State that it had failed to
offer proof of the driving on revocation charge and thus acted
improperly. But this is not what the record shows. It is clear
that the State initiated discussion about the lack of proof on the
revocation charge with the court, and it was only after the State
had initiated the discussion that the court agreed there had been
a lack of proof on the issue. On the facts before us, the court
did not improperly abdicate its role as a neutral fact finder and
did not abuse its discretion in allowing the State to withdraw
its rest to put on additional evidence.
15
State v. McKay, 15 Neb. Ct. App. 169, 723 N.W.2d 644 (2006).
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3. Sufficiency of Evidence
[8] Bol argues the evidence was insufficient to support the
jury’s verdict. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion thereof, the standard is the same: An appellate court does
not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact.16 The relevant question for an appellate court
is whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.17
In his brief, Bol challenges the sufficiency of the evidence
as it relates to both his conviction for DUI and his conviction
for refusing to submit to a chemical test. But his arguments go
to nothing more than the credibility of the witnesses or fac-
tual disputes between the witnesses. Viewed in the light most
favorable to the State, the evidence is sufficient to support
both convictions.
4. P rior Convictions
(a) Identity of Person Convicted
At the enhancement hearing, the State sought to estab-
lish that Bol had three prior DUI convictions: one in Hall
County and two in Vermont. Bol does not dispute the Hall
County conviction, but he contends on appeal that the State
failed to prove that he was the defendant in the two Vermont
prosecutions.
[9,10] In a proceeding to enhance punishment because of
prior convictions, the State has the burden of proving such
prior convictions by a preponderance of the evidence.18 The
existence of a prior conviction and the identity of the accused
as the person convicted may be shown by any competent
16
State v. Watson, 285 Neb. 497, 827 N.W.2d 507 (2013); State v. McGee,
282 Neb. 387, 803 N.W.2d 497 (2011).
17
State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013); State v. Eagle
Bull, 285 Neb. 369, 827 N.W.2d 466 (2013).
18
State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).
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evidence, including the oral testimony of the accused and duly
authenticated records maintained by the courts or penal and
custodial authorities.19
[11,12] Under Nebraska law, a prior conviction for purposes
of a DUI prosecution includes any conviction under a law of
another state if, at the time of the conviction, the offense would
have been a violation of Nebraska’s DUI statutes.20 Where prior
DUI convictions in other states are alleged as grounds for DUI
sentence enhancement, the prosecutor is required to present “a
court-certified copy or an authenticated copy of a prior convic-
tion in another state” which “shall be prima facie evidence of
such prior conviction.”21 In the context of Nebraska’s habitual
criminal statute, we have held that an authenticated record
establishing a prior conviction of a defendant with the same
name is prima facie evidence sufficient to establish identity
for the purpose of enhancing punishment and, in the absence
of any denial or contradictory evidence, is sufficient to support
a finding that the accused has been convicted prior thereto.22
The same principle applies to proof of prior convictions under
Nebraska’s DUI statutes.
One of the Vermont convictions was in 2006. The 2006
Vermont conviction record identifies the defendant as “Yai
Bol” and “Yai D. Bol,” born on January 1, 1986. At the
enhancement hearing, Bol testified that he was born on
January 1, 1986. Thus, Bol has the same name and birth date
as the person convicted of DUI in Vermont in 2006. This
is sufficient to establish a prima facie showing that he is
that person.
Bol contends that because he denied being the person con-
victed in Vermont in 2006, the burden shifted to the State to
show he was that person. But we do not see any such denial in
the record before us. At the enhancement hearing, Bol was not
asked any questions about the 2006 Vermont conviction, and
19
State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
20
See Neb. Rev. Stat. § 60-6,197.02(1)(a)(i)(C) (Cum. Supp. 2012).
21
§ 60-6,197.02(2).
22
State v. Dixon, supra note 18; State v. Thomas, supra note 19.
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he made no reference to it in his testimony. Accordingly, the
prima facie showing was not rebutted, and the evidence was
sufficient to establish that Bol was the same person convicted
of DUI in Vermont in 2006.
The other Vermont conviction occurred in 2009. The record
from this conviction identifies the defendant at various places
as “Daniel A. Matit,” “Daniel D. Matit,” and “Daniel Matit,”
born on January 1, 1989. It was established at trial that Bol
uses the name “Daniel Matit.” The 2009 conviction record
indicates that the “Daniel Matit” convicted was married and
living at a street address in Vergennes, Vermont. It also reflects
that at the time of his arrest, he was driving a green Ford
Explorer registered in Mississippi. At the enhancement hear-
ing, Bol denied that he was convicted of DUI in Vermont in
2009. He stated that he had never been married. He acknowl-
edged living in Vermont in 2009, but he testified that he never
resided at the street address shown on the 2009 conviction
record. On cross-examination, however, Bol admitted that in
2009, he owned a green Ford Explorer which was registered
in Mississippi. Although there is a discrepancy between Bol’s
stated birth date of January 1, 1986, and the January 1, 1989,
birth date reflected in the 2009 Vermont conviction records,
the 1989 date is also reflected in the 2011 Hall County DUI
conviction record of “Daniel D. Matit.” At the enhancement
hearing, Bol’s counsel acknowledged that he was the person
identified in the Hall County record.
There is also fingerprint evidence linking Bol to a person
named “Yai Bol” who resided in Vermont in 2009. David
Sobotka, a fingerprint examiner for the identification bureau
of the Lincoln Police Department, testified that he compared
fingerprint cards of “Yai Dau Bol” and “Daniel Deng Matit”
which he obtained from the “IAFIS” database of the Federal
Bureau of Investigation (FBI). The fingerprints did not match,
and Sobotka testified that this meant that there is a “Daniel
Matit” who is not the same person as the “Yai Bol” who pro-
vided the fingerprints.
But Sobotka also compared the fingerprints of “Yai Dau
Bol” obtained from the FBI database to fingerprints from
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“Daniel Deng Matit” taken by the Lincoln Police Department
on May 7, 2012, and determined they were made by the same
person. He also compared Bol’s fingerprints from the FBI
database and Matit’s fingerprints taken by the Grand Island,
Nebraska, police department in 2011 and determined they
were made by the same person. Finally, Sobotka compared the
same fingerprints of Bol from the FBI database with those of
a “Yai Bol” who was arrested in Vermont on various charges
in May 2009, approximately 2 months after the Vermont DUI
conviction which is at issue. Again, the two sets of finger-
prints matched. The date of birth of “Yai Bol” on the Vermont
fingerprint card was January 1, 1986. Also, the photograph
on the Vermont fingerprint card bears a striking resemblance
to the photographs on the Lincoln and Grand Island finger-
print cards.
Thus, the record reflects (1) that Bol had the same name as
the person convicted of DUI in Vermont in 2009, (2) that Bol
lived in Vermont in 2009, (3) that Bol owned a green Ford
Explorer registered in Mississippi which matches the descrip-
tion of the vehicle operated by the person who was convicted
of DUI in Vermont in 2009, and (4) that the date of birth on the
2009 Vermont conviction matches the date of birth which Bol
gave to Grand Island police when he was arrested for DUI in
2011. On this record, the State proved by a preponderance of
the evidence that Bol is the same person who was convicted of
DUI in Vermont in 2009.
For completeness, we note Bol’s additional argument that
the State should not be permitted to rely on the principle of
collateral estoppel to argue that he is barred from challenging
the use of the 2009 Vermont conviction to enhance his current
conviction on the ground that it was used to enhance a DUI
conviction in Lancaster County, Nebraska, in 2012. It is clear
from the record that the court did not refer to the Lancaster
County conviction or the use of the 2009 Vermont conviction
to enhance that conviction in its finding that the current con-
viction is Bol’s fourth offense. Therefore, we need not reach
the collateral estoppel argument, because an appellate court is
not obligated to engage in an analysis that is not necessary to
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158 288 NEBRASKA REPORTS
adjudicate the case and controversy before it.23 We note, how-
ever, that we recently held that collateral estoppel principles do
not apply at enhancement proceedings.24
(b) Number of Prior Convictions
When entering a judgment of conviction for DUI, “the
court shall, as a part of the judgment of conviction, make a
finding on the record as to the number of the convicted per-
son’s prior convictions.”25 Following the enhancement hear-
ing in this case, the district court entered an order finding
that Bol “has two prior convictions for [DUI], making the
current [DUI] conviction a third offense.” Four days later, the
court entered an order nunc pro tunc, in which it stated that
“[d]ue to a scrivener’s error,” it was amending its prior order
to read:
Hav[ing] reviewed the evidence presented at the
enhancement hearing held on February l4, 2013, includ-
ing the prior convictions, fingerprint documents and tes-
timony, the court finds that [Bol] has three prior convic-
tions for [DUI] (i.e., Chittenden County, Vermont (2006);
Addison County, Vermont (2009); and Hall County,
Nebraska (2011)), making the current [DUI] conviction a
fourth offense.
At the subsequent sentencing hearing, the court stated, “I
truly do not understand how or why I typed and then signed
[the order] showing a third offense rather than a fourth offense,
because those findings were not and are not consistent with
the evidence presented at the enhancement hearing.” The court
continued by noting that the order nunc pro tunc reflected the
evidence from the enhancement hearing that Bol had three
prior DUI convictions that could be used for enhancement
purposes. The court also noted that it had determined Bol
was represented by counsel or waived counsel at all critical
stages in each of those cases. Bol argues that the court erred
23
State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013); State v. Au, 285
Neb. 797, 829 N.W.2d 695 (2013).
24
State v. Bruckner, 287 Neb. 280, 842 N.W.2d 597 (2014).
25
§ 60-6,197.02(3).
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STATE v. BOL 159
Cite as 288 Neb. 144
in issuing the order nunc pro tunc changing the number of
prior convictions.
[13-16] A court has inherent power in a criminal case to
correct its records to reflect the “truth,” nunc pro tunc.26 The
purpose of an order nunc pro tunc is to correct a record which
has been made so that it will truly record the action had, which
through inadvertence or mistake was not truly recorded.27 It is
not the function of an order nunc pro tunc to change or revise a
judgment or order, or to set aside a judgment actually rendered,
or to render an order different from the one actually rendered,
even though such order was not the order intended.28 Clerical
errors may be corrected by an order nunc pro tunc, but judicial
errors may not.29
In State v. Painter,30 a district court sitting as an intermedi-
ate appellate court entered an order affirming what it charac-
terized as concurrent sentences imposed by a county court.
On its own motion, the district court subsequently entered an
order nunc pro tunc stating that its reference to concurrent sen-
tences was incorrect and that the sentences were to be served
consecutively, as the county court had pronounced them. We
determined that the district court erred in designating its sec-
ond order as “nunc pro tunc,” because “the error was not com-
mitted by the scrivener but was caused by a misstatement made
by the judge.”31 But reasoning that “[w]hat the court entitles
the order . . . is not controlling,”32 we examined whether the
court had authority to modify its earlier order and concluded
that it did.
26
State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009); State v. Kortum, 176
Neb. 108, 125 N.W.2d 196 (1963).
27
See, Interstate Printing Co. v. Department of Revenue, 236 Neb. 110, 459
N.W.2d 519 (1990); Continental Oil Co. v. Harris, 214 Neb. 422, 333
N.W.2d 921 (1983).
28
Id.
29
Interstate Printing Co. v. Department of Revenue, supra note 27. See, also,
State v. Painter, 224 Neb. 905, 402 N.W.2d 677 (1987).
30
State v. Painter, supra note 29.
31
Id. at 912, 402 N.W.2d at 682.
32
Id.
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160 288 NEBRASKA REPORTS
In this case, as in Painter, the error in question was a mis-
statement by the judge, not an error by a scrivener. Thus, the
second order which modified the court’s finding with respect
to the number of prior convictions cannot be properly termed
an order nunc pro tunc. But if the court had jurisdiction and
authority to enter the second order, its incorrect characteriza-
tion as an order nunc pro tunc is of no consequence.33
Relying upon State v. Cousins,34 Bol argues that the district
court lacked authority to find that he had three prior DUI
convictions after previously determining that he had only
two. In Cousins, we held that a district court lacks authority
to modify a valid criminal sentence after it is pronounced,
even if the modification is for the purpose of imposing the
sentence which the judge had originally intended to impose.
We have consistently applied this principle in subsequent
cases involving the pronouncement or imposition of crimi-
nal sentences.35
But these cases are not controlling here, because we are
not dealing with a purported modification of a sentence.
Instead, the district court’s order finding there were two prior
convictions was simply a finding of fact which, like other
facts in the case, would subsequently be considered by the
court in imposing a sentence. Nothing prevents a court from
changing a factual finding while it still has jurisdiction over
the case.
In State v. Hausmann,36 we observed that “[j]udicial effi-
ciency is served when any court . . . is given the opportunity
to reconsider its own rulings, either to supplement its reason-
ing or correct its own mistakes.” Here, the district court real-
ized its own error prior to entry of final judgment when it still
had jurisdiction over the case, and it acted appropriately to
33
See id.
34
State v. Cousins, 208 Neb. 245, 302 N.W.2d 731 (1981).
35
See, State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013); State v.
Sims, 277 Neb. 192, 761 N.W.2d 527 (2009); State v. Schnabel, 260 Neb.
618, 618 N.W.2d 699 (2000).
36
State v. Hausmann, 277 Neb. 819, 827, 765 N.W.2d 219, 225 (2009).
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STATE v. BOL 161
Cite as 288 Neb. 144
correct its finding regarding the number of prior convictions to
properly reflect the evidence before it. The fact that the court
incorrectly labeled its corrective order “nunc pro tunc” does
not invalidate it. We conclude that the district court did not err
in modifying its prior finding to reflect that Bol had three prior
DUI convictions instead of two.
5. Excessive Sentences
Bol contends the sentences imposed by the district court
are excessive. DUI, aggravated fourth offense, is a Class III
felony.37 A Class III felony is punishable by a minimum of 1
year’s imprisonment and a maximum of 20 years’ imprison-
ment, a $25,000 fine, or both.38 The court sentenced Bol to 2 to
3 years’ imprisonment for the DUI conviction. Driving under
revocation is a Class II misdemeanor.39 A Class II misdemeanor
is punishable by up to 6 months’ imprisonment, a $1,000 fine,
or both.40 The court sentenced Bol to 6 months’ imprisonment
for the conviction of driving under revocation. Both sentences
were thus within the statutory limits.
[17-19] An appellate court will not disturb a sentence
imposed within the statutory limits absent an abuse of dis-
cretion by the trial court.41 Where a sentence imposed within
the statutory limits is alleged on appeal to be excessive, the
appellate court must determine whether the sentencing court
abused its discretion in considering and applying the relevant
factors as well as any applicable legal principles in determin-
ing the sentence to be imposed.42 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
37
Neb. Rev. Stat. § 60-6,197.03(8) (Cum. Supp. 2012).
38
Neb. Rev. Stat. § 28-105 (Cum. Supp. 2012).
39
Neb. Rev. Stat. § 60-4,108 (Cum. Supp. 2012).
40
Neb. Rev. Stat. § 28-106 (Cum. Supp. 2012).
41
State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013); State v. Dixon,
286 Neb. 334, 837 N.W.2d 496 (2013).
42
State v. Dixon, supra note 41.
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162 288 NEBRASKA REPORTS
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.43
The presentence report indicates that Bol has filed two other
appeals. One, decided by this court, involved a conviction
for DUI, fourth offense, a Class III felony.44 The second was
decided by the Court of Appeals and involved a conviction for
criminal impersonation, a Class IV felony.45 Bol’s criminal his-
tory also includes a DUI in Vermont in 2005, for which he was
incarcerated for 6 to 11 months; a DUI in Texas in 2008, dis-
position unknown; possession of cocaine and providing false
information to a police officer in Vermont in 2009, for which
he was fined $5,500 and ordered to serve 11⁄2 to 21⁄2 years in
prison, but the sentences were suspended; a DUI and refusal
to submit to a chemical test in Hall County in 2011, for which
he was fined and placed on probation; and a third-offense DUI
in Lancaster County in 2011, for which he was sent to jail
for 120 days. He also was convicted of third degree domestic
assault in Hall County in 2012 and was sentenced to 60 days
in jail.
The sentences imposed by the trial court were within the
statutory limits. Based on Bol’s criminal record and after
considering the relevant sentencing factors, we conclude
the district court did not abuse its discretion in imposing
the sentences.
IV. CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court.
Affirmed.
43
State v. McGuire, supra note 41; State v. Dixon, supra note 41.
44
State v. Matit, post p. 163, ___ N.W.2d ___ (2014).
45
State v. Bol, 21 Neb. Ct. App. 931, ___ N.W.2d ___ (2014).