State v. Brown

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/25/2018 09:06 AM CDT

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Nebraska Supreme Court A dvance Sheets

300 Nebraska R eports

STATE v. BROWN

Cite as 300 Neb. 57

State of Nebraska, appellee, v.

Darwin E. Brown, appellant.

___ N.W.2d ___

Filed May 25, 2018. Nos. S-17-442 through S-17-444.

1. Statutes: Judgments: Appeal and Error. The meaning of a statute is a

question of law, on which an appellate court has an obligation to reach

an independent conclusion irrespective of the decision made by the

court below.

2. Sentences: Appeal and Error. A sentence imposed within statutory

limits will not be disturbed on appeal absent an abuse of discretion by

the trial court.

3. ____: ____. An abuse of discretion in imposing a sentence occurs when

a sentencing court’s reasons or rulings are clearly untenable and unfairly

deprive the litigant of a substantial right and a just result.

4. Sentences. The appropriateness of a sentence is necessarily a subjec-

tive judgment and includes the sentencing judge’s observation of the

defendant’s demeanor and attitude and all the facts and circumstances

surrounding the defendant’s life.

5. ____. In determining a sentence to be imposed, relevant factors custom-

arily considered and applied are the defendant’s (1) age, (2) mentality,

(3) education and experience, (4) social and cultural background, (5)

past criminal record or record of law-abiding conduct, and (6) motiva-

tion for the offense, as well as (7) the nature of the offense and (8) the

amount of violence involved in the commission of the crime.

Appeals from the District Court for Lancaster County: Lori

A. M aret, Judge. Affirmed.

Joe Nigro, Lancaster County Public Defender, Bradley A.

Sipp, and, on brief, Jennifer M. Houlden for appellant.

Douglas J. Peterson, Attorney General, and Joe Meyer for

appellee.

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STATE v. BROWN

Cite as 300 Neb. 57

Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,

JJ., and H arder and Noakes, District Judges.

Miller-Lerman, J.

NATURE OF CASE

Cases Nos. S-17-442 through S-17-444 have been con-

solidated before us on appeal. In each of these three appeals,

Darwin E. Brown appeals his conviction and sentence in the

district court for Lancaster County for driving under the influ-

ence. With regard to each conviction, Brown was found to

have had two prior convictions as defined by Neb. Rev. Stat.

§ 60-6,197.02(1)(a) (Cum. Supp. 2016). Brown claims, inter

alia, that a prior conviction in Missouri should not have been

used for purposes of enhancing his sentences for these convic-

tions. Because we conclude that the Missouri conviction was

valid for use as a prior conviction in each of these cases, we

affirm Brown’s convictions and sentences.

STATEMENT OF FACTS

In each of these three cases, the State filed an information

against Brown in the district court for Lancaster County alleg-

ing that he committed the crime of driving under the influence

(hereinafter DUI) in violation of Neb. Rev. Stat. § 60-6,196

(Reissue 2010). The dates of the charged offenses were July

19, 2015, and January 16 and May 6, 2016. The State also

alleged in each information that at the time of the offense,

Brown had a breath alcohol concentration of .15 grams or

above of alcohol per 210 liters of breath. The State further

alleged in each information that at the time of the offense,

Brown had two prior convictions as defined by § 60-6,197.02:

one for an offense that occurred on December 1, 2013, in

Nebraska and one for an offense that occurred on December

17, 2003, in Missouri.

Pursuant to a plea agreement, Brown pled guilty to the three

DUI charges and, in exchange, the State refrained from filing

additional charges and from charging a separate DUI offense,

which was pending in the county court, as a third offense

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rather than as a second offense. At the plea hearing, the State

gave a factual basis as to each charge, which factual basis was

generally that on the alleged date, Brown was subjected to a

traffic stop by a law enforcement officer, that the officer saw

signs of impairment and conducted preliminary tests, and that

a breath test performed after Brown was transported to jail

showed that he had an alcohol concentration in excess of .15.

The court accepted Brown’s pleas and found him guilty of the

charged offenses.

At an enhancement hearing, the district court received evi-

dence of the two alleged prior offenses. At the hearing, the

court found that the Nebraska conviction was a valid prior con-

viction for purposes of enhancement. The court reserved ruling

on the Missouri conviction; but at the sentencing hearing, the

court found that the Missouri conviction was a valid prior con-

viction for purposes of enhancement. The court concluded that

as to each of the current offenses, Brown had two prior DUI

convictions, including the Missouri conviction, and that he

had a breath alcohol concentration in excess of .15. Therefore,

under Neb. Rev. Stat. § 60-6,197.03(6) (Supp. 2013 & Cum.

Supp. 2014), each offense was a Class IIIA felony.

The court sentenced Brown to consecutive terms of impris-

onment for 3 to 5 years for the conviction of the July 2015

incident, for 3 to 3 years for the conviction of the January

2016 incident, and for 3 to 3 years for the conviction of the

May 2016 incident. Because the July 2015 incident occurred

before the August 30, 2015, effective date of statutory changes

made by 2015 Neb. Laws, L.B. 605, a higher maximum

penalty of 5 years’ imprisonment applied to that conviction.

However, the two other convictions for the offenses which

occurred after August 30, 2015, were subject to a maximum

penalty of 3 years’ imprisonment because of changes made

by L.B. 605. Further, Brown’s sentences for the convictions

of the January and May 2016 offenses were not subject to

postrelease supervision, because the court imposed the sen-

tences in those cases consecutively to the sentence for the July

2015 offense. In State v. Chacon, 296 Neb. 203, 894 N.W.2d

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238 (2017), we cited Neb. Rev. Stat. § 29-2204.02(4) (Reissue

2016), which provides:

For any sentence of imprisonment for a Class III, IIIA,

or IV felony for an offense committed on or after August

30, 2015, imposed consecutively or concurrently with

(a) a sentence for a Class III, IIIA, or IV felony for an

offense committed prior to August 30, 2015, or (b) a

sentence of imprisonment for a Class I, IA, IB, IC, ID,

II, or IIA felony, the court shall impose an indeterminate

sentence within the applicable range in section 28-105

that does not include a period of post-release supervi-

sion, in accord­ance with the process set forth in sec-

tion 29-2204.

Section 29-2204.02(4) became effective April 20, 2016, and

we held in Chacon that § 29-2204.02(4) applied to a sen-

tence that was not final on the effective date of the statute.

Section 29-2204.02(4) applied to the sentencing in these cases,

which sentencing occurred on April 4, 2017. In addition to the

sentences of imprisonment in each of these cases, the court

ordered that Brown’s driver’s license be revoked for 15 years.

Brown appeals his three convictions and sentences. We con-

solidated the three appeals.

ASSIGNMENTS OF ERROR

In each of these appeals, Brown claims that the district court

erred when it used the Missouri conviction as a prior convic-

tion to enhance his sentences for the present DUI convictions.

He also claims the court imposed excessive sentences.

STANDARDS OF REVIEW

[1] The meaning of a statute is a question of law, on which

an appellate court has an obligation to reach an independent

conclusion irrespective of the decision made by the court

below. State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011).

[2,3] A sentence imposed within statutory limits will not be

disturbed on appeal absent an abuse of discretion by the trial

court. State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017).

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An abuse of discretion in imposing a sentence occurs when a

sentencing court’s reasons or rulings are clearly untenable and

unfairly deprive the litigant of a substantial right and a just

result. Id.

ANALYSIS

Use of Missouri Conviction as a Prior

Conviction Was Not In Error.

Brown first claims that the district court erred when it used

the Missouri conviction as a prior conviction to enhance his

sentences for the present DUI convictions. We conclude that

the use of the Missouri conviction as a prior conviction was

not in error.

Section 60-6,197.03 sets forth penalties for DUI convic-

tions under § 60-6,196. The promulgated penalties include

enhanced sentences for offenders who have had prior convic-

tions. In these cases, Brown’s convictions were sentenced as

Class IIIA felonies pursuant to § 60-6,197.03(6) which applies

when the defendant “has had two prior convictions and, as part

of the current violation, had a [blood or breath alcohol] con-

centration” in excess of .15. Section 60-6,197.02(1)(a)(i)(C)

provides that for purposes of sentencing for a violation of

§ 60-6,196, a prior conviction includes, inter alia, “[a]ny con-

viction under a law of another state if, at the time of the

conviction under the law of such other state, the offense for

which the person was convicted would have been a violation

of . . .” § 60-6,196 or one of the other enumerated Nebraska

DUI-related statutes.

Brown argues that his Missouri conviction for driving

while intoxicated (DWI) in 2003 would not necessarily have

been a DUI in Nebraska, because the Missouri statute under

which he was convicted provided a lower threshold for intoxi-

cation than under Nebraska law. Brown relies in part on our

decision in State v. Mitchell, 285 Neb. 88, 95, 825 N.W.2d

429, 434 (2013), in which we held that a Colorado convic-

tion for “driving while ability impaired” (DWAI) was not a

prior DUI conviction for enhancement purposes, because the

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threshold for proving a DWAI in Colorado was the “slightest

degree” of impairment and was lower than the threshold for

proving DUI in Nebraska.

The evidence presented by the State in these cases indi-

cated that Brown’s 2003 conviction in Missouri was for “Dwi

- Alcohol” pursuant to Mo. Rev. Stat. § 577.010 (West 2003),

which provided that “[a] person commits the crime of ‘driv-

ing while intoxicated’ if he operates a motor vehicle while

in an intoxicated or drugged condition.” Another Missouri

statute, Mo. Rev. Stat. § 577.001(2) (West 2003), defined

“‘intoxicated condition’” as being “under the influence of

alcohol, a controlled substance, or drug, or any combina-

tion thereof.”

At the time of Brown’s Missouri conviction, § 60-6,196(1)

(Supp. 2003) provided that it was “unlawful for any person

to operate or be in the actual physical control of any motor

vehicle . . . [w]hile under the influence of alcoholic liquor or

of any drug.” Comparing the language of the relevant statutes

in Missouri and Nebraska, we determine that a conviction for

the offense of DWI under the Missouri statutes would have

established a DUI violation under § 60-6,196.

A conviction under the Missouri statutes required that

one “operates a motor vehicle while in an intoxicated or

drugged condition,” see § 577.010, and defined “intoxicated

condition” as being “under the influence of alcohol, a con-

trolled substance, or drug, or any combination thereof,” see

§ 577.001(2). Reading the two statutes together, a conviction

for DWI in Missouri required proof that one “operate[d] a

motor vehicle while . . . under the influence of alcohol, a con-

trolled substance, or . . . any combination thereof.” This statu-

tory language setting forth the offense of DWI in Missouri

was substantially the same as the language of § 60-6,196(1),

which defined proof of DUI to include that one “operate[d]

. . . any motor vehicle . . . [w]hile under the influence of

alcoholic liquor or of any drug.” Both the Missouri and

the Nebraska statutory schemes effectively required that one

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operate a motor vehicle while “under the influence” of alcohol

or a drug. Although the Missouri statute referred to the offense

as “DWI” rather than “DUI,” it included essentially the statu-

tory elements that were necessary to establish DUI under

§ 60-6,196 in Nebraska.

Brown’s argument looks beyond the statutory language and

relies on court interpretations of the two states’ statutes. He

notes that Missouri courts clarified that “‘under the influ-

ence of alcohol’” meant “‘any intoxication that in any manner

impairs the ability of a person to operate an automobile.’”

State v. Edwards, 280 S.W.2d 184, 189 (Mo. App. 2009). He

compares Missouri case law to cases in which this court has

stated that the Nebraska statutory phrase “‘under the influ-

ence of alcoholic liquor or of any drug’” requires the ingestion

of alcohol or drugs in an amount sufficient to impair to “any

appreciable degree” the driver’s ability to operate a motor vehi-

cle in a prudent and cautious manner. State v. Falcon, 260 Neb.

119, 123, 615 N.W.2d 436, 439 (2000). Brown contends that

Missouri and Nebraska required different levels of impairment

and that Missouri’s standard of impairment “‘in any manner’”

was a lower threshold than Nebraska’s requirement of impair-

ment to “‘any appreciable degree.’” Briefs for appellant at 10.

He likens the Missouri standard of impairment “in any man-

ner” to the Colorado statutory language referring to impairment

to the “slightest degree” that we found in State v. Mitchell,

285 Neb. 88, 825 N.W.2d 429 (2015), to be a lower threshold

than Nebraska’s standard of impairment to “‘an appreciable

degree.’” Briefs for appellant at 13.

Contrary to Brown’s analysis, the starting point in a compar-

ison of another state’s statutorily defined offense to Nebraska’s

statutory DUI offenses should be to compare the statutory

language in the other state to the language of the relevant

Nebraska statute. The definition of “[p]rior conviction” under

§ 60-6,197.02(1)(a)(i)(C) includes a conviction in another state

when “the offense for which the person was convicted would

have been a violation of” § 60-6,196 or one of the other

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enumerated Nebraska DUI-related statutes. We read this defini-

tion as requiring an initial comparison of the other state’s statu-

tory definition of the offense to Nebraska’s statutory definition

of a DUI-related offense. If it is clear that the offense as statu-

torily defined in the other state would have been a violation of

the relevant Nebraska statute, no further inquiry is required.

In the present case, as we determined above, the minimum

requirements for a conviction under the Missouri statutes under

which Brown was convicted would have been a violation of

§ 60-6,196.

This focus on statutory language and the statutory elements

of the offenses in the two states was recognized in Mitchell,

wherein we stated that the defendant’s Colorado “conviction

of DWAI was a determination that his conduct met the mini-

mum requirement for violation of the DWAI statute” and that

the conviction made no other determination. 285 Neb. at 94,

825 N.W.2d at 434. We stated that it was the fact of convic-

tion under the other state’s statutorily defined offense, and “not

the record of a defendant’s conduct at the time of the arrest,

that is relevant to our analysis.” Id. We therefore concluded

that punishment for the Nebraska conviction could not be

enhanced solely “because the facts of his arrest and convic-

tion in Colorado could support the higher requirement for a

Nebraska DUI,” id., when the minimum requirements to estab-

lish the Colorado offense would not support a conviction for

DUI in Nebraska.

The analytical lesson from Mitchell directs us to focus

initially on a comparison of statutes and only if the outcome

is unclear do we then expand the inquiry to case law inter-

pretation of the statutes. And trivial differences in statutory

language do not necessarily make the comparison unclear. In

Mitchell, this initial comparison did not show that conduct

meeting the minimum requirement of the Colorado DWAI

statute would constitute a violation of the Nebraska statute,

§ 60-6,196. The Colorado DWAI statutes required only that “a

person has consumed alcohol . . . that affects the person to the

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slightest degree.” See Colo. Rev. Stat. Ann. § 42-4-1301(g)

(West Cum. Supp. 2017). Because this statutory language

did not clearly establish a violation of § 60-6,196(1), which

required that the defendant be “under the influence of alco-

holic liquor or of any drug,” we looked to Nebraska case

law interpreting § 60-6,196 to see whether evidence of being

affected “to the slightest degree” would nevertheless con-

stitute being “under the influence of alcoholic liquor” under

Nebraska statutory law. Because case law required impair-

ment to “any appreciable degree” rather than to “the slightest

degree,” we concluded that a conviction establishing the mini-

mum requirements for DWAI in Colorado did not constitute a

violation of § 60-6,196.

Compared to the Colorado statute in State v. Mitchell, 285

Neb. 88, 825 N.W.2d 429 (2013), if one met the minimum

statutory requirements of the offense of DWI in the Missouri

statutes discussed above, one would also be in violation of

§ 60-6,196. Both statutory schemes used the standard of

being “under the influence” of alcohol. We conclude that the

Missouri and Nebraska statutes require the same elements, and

the fact that case law in each state may describe that standard

with slightly different language does not inform or change

our determination.

One key factor in our decision in Mitchell was that in addi-

tion to the DWAI statute at issue, Colorado had a separate

DUI subsection that required a higher level of impairment

than was required for DWAI. See § 42-4-1301(f). We found

Colorado’s distinction between DUI and DWAI relevant to our

determination that conviction for DWAI in Colorado did not

establish DUI under § 60-6,196. Brown attempts to apply this

aspect of Mitchell to his advantage and notes that Missouri

also had a statute, Mo. Rev. Stat. § 577.012 (West 2003), that

set forth an offense of “‘driving with excessive blood alcohol

content,’” which required that the person have a certain level

of alcohol in his or her blood. Brown argues that the existence

of this separate statute in Missouri is similar to Colorado’s

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statutory distinction between DWAI and DUI and indicates

that a conviction under Missouri’s DWI statute would not be a

violation of § 60-6,196. However, the existence of § 577.012

does not support Brown’s argument. Instead, it shows that

Missouri’s statutory scheme is similar to § 60-6,196, which

provides that one can commit DUI by, inter alia, being “under

the influence” pursuant to subsection (1)(a) or by having a

specified concentration of alcohol in one’s blood or breath

pursuant to subsections (1)(b) and (c). The difference between

Nebraska’s and Missouri’s statutory scheme is merely that

Nebraska includes in one statute what Missouri included in

more than one statute. Missouri’s separate statutes, which each

correspond to a separate part of § 60-6,196, do not inform

our analysis in the same way that Colorado’s two subsections,

which set forth different levels of impairment, compelled our

analysis in Mitchell.

We conclude that Brown’s conviction for DWI in Missouri

would have constituted a violation of § 60-6,196. We there-

fore conclude that the district court’s determination that the

Missouri conviction was a prior conviction for purposes of

enhancing the current offenses was not in error.

District Court Did Not Abuse Its

Discretion in Sentencing Brown.

Brown also claims that the court imposed excessive sen-

tences. We conclude that the district court did not abuse its

discretion in sentencing Brown.

After an enhancement hearing, each of Brown’s offenses

in this appeal was determined to be a Class IIIA felony

under § 60-6,197.03(6). With regard to the conviction of the

offense that occurred in July 2015, the statutory range for a

Class IIIA felony included imprisonment for a maximum of 5

years. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014). For the

convictions of the offenses that occurred in January and May

2016, the statutory range for a Class IIIA felony included

imprisonment for a maximum of 3 years. § 28-105 (Supp.

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2015). As noted above, Brown’s sentences for the convictions

of the January and May 2016 offenses were not subject to

postrelease supervision requirements under L.B. 605, because

the court imposed those sentences consecutively to the sen-

tence for the conviction of the July 2015 offense. The sen-

tences of imprisonment for 3 to 5 years for the conviction of

the July 2015 incident, for 3 to 3 years for the conviction of

the January 2016 incident, and for 3 to 3 years for the convic-

tion of the May 2016 incident are therefore within statutory

limits, so we next consider whether the sentences were an

abuse of discretion.

[4,5] The appropriateness of a sentence is necessarily a

subjective judgment and includes the sentencing judge’s obser-

vation of the defendant’s demeanor and attitude and all the

facts and circumstances surrounding the defendant’s life. State

v. Cerritos-Valdez, 295 Neb. 563, 889 N.W.2d 605 (2017).

Relevant factors customarily considered and applied are the

defendant’s (1) age, (2) mentality, (3) education and experi-

ence, (4) social and cultural background, (5) past criminal

record or record of law-abiding conduct, and (6) motivation

for the offense, as well as (7) the nature of the offense and

(8) the amount of violence involved in the commission of the

crime. State v. Russell, 299 Neb. 483, 908 N.W.2d 669 (2018).

Additionally, when deciding if it is appropriate to withhold a

sentence of imprisonment and grant probation, a sentencing

court is guided by the statutory grounds set forth in Neb. Rev.

Stat. § 29-2260 (Reissue 2016).

Brown notes that the court imposed the maximum sentence

of imprisonment in each case and ordered the sentences to be

served consecutively. He argues that the court focused almost

exclusively on his history of committing DUI’s and did not

give adequate consideration to mitigating factors both when

it determined the length of his sentences and when it decided

against imposing a sentence of probation instead of imprison-

ment. He acknowledges his history and his problems with alco-

holism, but he argues that the court ignored his rehabilitative

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needs, his life circumstances, his employment history, and his

willingness to enter pleas in these cases.

With regard to Brown’s willingness to enter pleas, we note

that as part of the plea agreement, the State agreed to refrain

from filing additional charges and from enhancing the penalty

in a separate case pending in county court. Although the court

did not extensively discuss mitigating factors, such factors

were presented to and considered by the court. The court’s

comments at sentencing indicated that to the extent mitigating

factors were present, the court found them to be substantially

outweighed by concerns regarding the seriousness of Brown’s

offenses and the danger he presented to the community. The

court noted that including the pending case in county court

and the three cases in this appeal, Brown had been arrested

for driving drunk four times within a year and that at least

in the three cases on appeal, he had an alcohol concentration

well over .15.

We do not think the court considered inappropriate fac-

tors, nor did it fail to consider mitigating factors. The court

determined that factors such as the seriousness of the offense

and the danger Brown posed to the community favored the

imposition of a long term of imprisonment; such determina-

tion was within the court’s discretion. We conclude that the

district court did not abuse its discretion in sentencing Brown

in these cases.

CONCLUSION

We conclude that the court’s use of the Missouri convic-

tion as a prior conviction in these cases was not in error.

We further conclude that the district court did not abuse its

discretion in sentencing Brown in these cases. We therefore

affirm Brown’s convictions and sentences in these consoli-

dated appeals.

A ffirmed.