State v. Greer

S
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/02/2021 08:09 AM CDT




                                                         - 667 -
                               Nebraska Supreme Court Advance Sheets
                                        309 Nebraska Reports
                                                   STATE v. GREER
                                                  Cite as 

309 Neb. 667




                                        State of Nebraska, appellee, v.
                                          Kenneth Greer, appellant.
                                                    ___ N.W.2d ___

                                           Filed July 2, 2021.     No. S-20-639.

                 1. Jurisdiction: Appeal and Error. A jurisdictional question which does
                    not involve a factual dispute is determined by an appellate court as a
                    matter of law.
                 2. Sentences: Judges: Appeal and Error: Words and Phrases. A sen-
                    tence imposed within the statutory limits will not be disturbed on appeal
                    in the absence of an abuse of discretion by the trial court. A judicial
                    abuse of discretion exists only when the reasons or rulings of a trial
                    judge are clearly untenable, unfairly depriving a litigant of a substantial
                    right and denying a just result in matters submitted for disposition.
                 3. Jurisdiction: Appeal and Error. It is the power and duty of an appel-
                    late court to determine whether it has jurisdiction over the matter before
                    it, irrespective of whether the issue is raised by the parties.
                 4. ____: ____. An appeal is deemed perfected and the appellate court shall
                    have jurisdiction of the cause when such notice of appeal has been filed
                    and the required docket fee has been deposited in the office of the clerk
                    of the district court.
                 5. Jurisdiction: Affidavits: Fees: Appeal and Error. In lieu of deposit-
                    ing the required docket fee, Neb. Rev. Stat. § 29-2306 (Reissue 2016)
                    allows a criminal defendant to request to proceed in forma pauperis on
                    appeal, and, in this situation, a poverty affidavit serves as a substitute
                    for the docket fee otherwise required upon appeal.
                 6. Jurisdiction: Affidavits: Appeal and Error. An in forma pauperis
                    appeal is perfected when the appellant timely files a notice of appeal and
                    a proper affidavit of poverty.
                 7. Sentences: Appeal and Error. When sentences imposed within statu-
                    tory limits are alleged on appeal to be excessive, the appellate court must
                    determine whether the sentencing court abused its discretion in consid-
                    ering well-established factors and any applicable legal principles.
                                  - 668 -
           Nebraska Supreme Court Advance Sheets
                    309 Nebraska Reports
                             STATE v. GREER
                            Cite as 

309 Neb. 667

 8. Sentences. When imposing a sentence, a sentencing judge should con-
    sider the defendant’s (1) age, (2) mentality, (3) education and experi-
    ence, (4) social and cultural background, (5) past criminal record or
    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.
 9. ____. The sentencing court is not limited to any mathematically applied
    set of factors, but the appropriateness of the sentence is necessarily a
    subjective judgment that includes the sentencing judge’s observations
    of the defendant’s demeanor and attitude and all the facts and circum-
    stances surrounding the defendant’s life.

  Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed.
  Thomas C. Riley, Douglas County Public Defender, and
April M. Lucas for appellant.
   Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
  Freudenberg, J.
                      NATURE OF CASE
   In an appeal from a second degree assault conviction, a
question of appellate court jurisdiction arose with regard to
the defendant’s second attempt to appeal after he dismissed
his first attempt due to his failure to properly perfect it. In his
appeal, the defendant challenges the district court’s sentence
of 19 to 20 years’ imprisonment as excessive, asserting that
the district court abused its discretion by failing to adequately
consider all mitigating factors.
                       BACKGROUND
                    Plea and Conviction
   Pursuant to a plea agreement, Kenneth Greer pled no con-
test to second degree assault, a Class IIA felony, and the State
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         Nebraska Supreme Court Advance Sheets
                  309 Nebraska Reports
                         STATE v. GREER
                        Cite as 

309 Neb. 667

dismissed the charge of driving under the influence (DUI)
causing serious bodily injury, a Class IIIA felony. The State’s
factual basis alleged that on November 6, 2019, Greer caused
a collision and fled the scene at a high rate of speed. Greer
struck another vehicle approximately two blocks away and then
continued through a stop sign at a controlled intersection where
he struck the rear of a van.
   One of the passengers of the van was a 6-year-old girl who
sustained traumatic head and spinal injuries. She was hospi-
talized and remained unresponsive for a period of time. In
January 2020, the girl was admitted to a rehabilitation center,
and at the time of the sentencing hearing on August 6, she
remained partially paralyzed.
   Based on the data from the airbag control module in Greer’s
vehicle, he was traveling 67 miles per hour at the time of
impact, which occurred in a 25-mile-per-hour speed zone.
When officers arrived, Greer smelled of alcohol, had slurred
speech, and failed a preliminary breath test. Pursuant to a
search warrant, a blood draw was performed, and Greer’s
blood alcohol content was .311 of a gram of alcohol per 100
milliliters of his blood. After accepting Greer’s no contest plea,
the court ordered that a presentence report (PSR) be prepared
and continued the matter for sentencing.

                            Sentence
   At the sentencing hearing, Greer’s counsel asked the court
to fashion a sentence that took into consideration Greer’s age
of 51 years; his medical condition of cirrhosis of the liver; his
expression of remorse; his 11th grade education; and, while he
denies it, his mental learning deficit.
   Counsel acknowledged that this was Greer’s third DUI,
but pointed out his prior convictions were not recent and
the death of Greer’s brother played a role in his alcohol use.
Defense counsel further stated that Greer took the plea without
hesitation, taking responsibility for what he did. When Greer
was asked if he wanted to say anything, he stated, “Yes. I’m
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         Nebraska Supreme Court Advance Sheets
                  309 Nebraska Reports
                         STATE v. GREER
                        Cite as 

309 Neb. 667

very, very, sorry for the accident and for everything that I
caused. But I apologize for that.”
   The PSR sets forth the serious injuries suffered by the vic-
tim and indicates that the family continues to experience post-­
traumatic stress disorder. The mother of the injured child had to
quit her job to care for her child, who is now a paraplegic and
has already incurred $850,000 in ongoing medical expenses.
Greer’s criminal history included two prior DUI convictions,
a felony possession of cocaine conviction, and multiple traffic
infractions. Greer’s criminal history also indicated that he did
not satisfactorily complete probation two of the three times it
had been granted to him. It was also noted that Greer’s driv-
ing privileges had been listed as revoked by the Department of
Motor Vehicles since 2004, as a result of his second DUI.
   Greer denied ever being diagnosed with a learning disabil-
ity, but admitted that he was required to participate in special
education programming at times and continues to experience
educational difficulties. Greer reported that during his senior
year of high school, he chose to drop out so he could work to
financially help his mother because she was on her own rais-
ing him and his siblings. Greer reported that he had not held
a regular job since 2005, when he ended his 16-year janitorial
career at a university, and that he has survived on money he
has earned by performing “odd jobs” for cash.
   Greer reported having his first drink of alcohol at the age
of 16 and described himself as a social level drinker with no
“lifetime alcohol induced blackouts.” Despite his history of
DUI arrests, Greer denied ever feeling he had problems with
alcohol and stated he had decreased his drinking levels to
two to three beers once per month. The PSR noted Greer’s
reported blood alcohol content was .311 and that he told the
accident investigator that he “blacked out” after consuming
just two beers.
   The PSR concluded that rehabilitative services of probation
appear to be inappropriate due to Greer’s past performance
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         Nebraska Supreme Court Advance Sheets
                  309 Nebraska Reports
                         STATE v. GREER
                        Cite as 

309 Neb. 667

on probation and to the fact that he is at a very high risk to
reoffend. Greer showed a great deal of denial and minimiza-
tion regarding the actual negative effect that alcohol has placed
in his life and exhibited very little remorse for the injuries
and financial stress he has caused. Ultimately, the PSR recom-
mended that Greer’s case “be handled with a straight sentence
of incarceration.”
   At the sentencing hearing on August 6, 2020, the district
court noted Greer’s prior criminal history and the probation
officer’s perception that Greer showed no remorse. The court
then set forth the long-term, life-altering effects on the minor
victim and her family resulting from the choice Greer made to
drink and drive. The court sentenced Greer to 19 to 20 years’
imprisonment, which sentence was memorialized in its order
file stamped on August 7, 2020.
                       Multiple Appeals
   Greer first filed a notice of appeal on August 24, 2020,
along with an application to proceed in forma pauperis and an
affidavit in support of the application. This appeal was dock-
eted as case No. A-20-606. The notary stamp on the affidavit
indicated that the notary’s commission had expired. On August
28, the Nebraska Court of Appeals filed an order to show
cause, ordering Greer to “provide . . . an affidavit attesting
that the purported notary was a duly qualified notary public in
the State of Nebraska at the time of the signing of [his] pov-
erty affidavit.”
   On September 2, 2020, Greer, along with the State, filed
a stipulation to dismiss the appeal. Accordingly, the Court of
Appeals issued a mandate dated September 3, 2020, ordering
the appeal be dismissed. The order on the mandate was filed
September 11.
   Meanwhile, Greer filed a second notice of appeal with the
application to proceed in forma pauperis and a valid affida-
vit in support of the application on September 3, 2020. This
appeal was docketed as case No. A-20-639.
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            Nebraska Supreme Court Advance Sheets
                     309 Nebraska Reports
                              STATE v. GREER
                             Cite as 

309 Neb. 667

                 ASSIGNMENT OF ERROR
   Greer assigns that the district court abused its discretion by
imposing an excessive sentence because the district court failed
to adequately consider mitigating factors.
                   STANDARD OF REVIEW
   [1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law. 1
   [2] A sentence imposed within the statutory limits will not
be disturbed on appeal in the absence of an abuse of discretion
by the trial court. 2 A judicial abuse of discretion exists only
when the reasons or rulings of a trial judge are clearly unten-
able, unfairly depriving a litigant of a substantial right and
denying a just result in matters submitted for disposition. 3
                           ANALYSIS
                          Jurisdiction
   [3] It is the power and duty of an appellate court to deter-
mine whether it has jurisdiction over the matter before it, irre-
spective of whether the issue is raised by the parties. 4 Citing
L. J. Vontz Constr. Co. v. City of Alliance 5 and In re Estate of
Marsh, 6 the Court of Appeals requested that the parties brief
the issue of whether the prior dismissal of case No. A-20-606—
without addressing its merits—acted as an affirmance of the
judgment, which operated as res judicata in relation to the
appeal in case No. A-20-639. Both parties believe this court
has jurisdiction over this refiled appeal. We agree.
1
    Porter v. Porter, ante p. 167, 

959 N.W.2d 235

 (2021).
2
    State v. Gray, 

307 Neb. 418

, 

949 N.W.2d 320

 (2020).
3
    

Id.
4

    Porter, supra note 1.
5
    L. J. Vontz Constr. Co. v. City of Alliance, 

243 Neb. 334

, 

500 N.W.2d 173

    (1993).
6
    In re Estate of Marsh, 

145 Neb. 559

, 

17 N.W.2d 471

 (1945).
                                     - 673 -
              Nebraska Supreme Court Advance Sheets
                       309 Nebraska Reports
                                STATE v. GREER
                               Cite as 

309 Neb. 667

   [4-6] Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2020) gov-
erns appellate jurisdiction and sets out the requirements for an
appeal to be perfected in the appellate court. Section 25-1912
requires that a notice of appeal must be filed and the required
docket fee deposited in the office of the clerk of the district in
which a judgment and sentence upon conviction was rendered
within 30 days after the entry of such judgment. An appeal is
deemed perfected and the appellate court shall have jurisdic-
tion of the cause when such notice of appeal has been filed and
the required docket fee has been deposited in the office of the
clerk of the district court. 7 In lieu of depositing the required
docket fee, Neb. Rev. Stat. § 29-2306 (Reissue 2016) allows
a criminal defendant to request to proceed in forma pauperis
on appeal, and, in this situation, a poverty affidavit serves
as a substitute for the docket fee otherwise required upon
appeal. 8 An in forma pauperis appeal is perfected when the
appellant timely files a notice of appeal and a proper affidavit
of poverty. 9
   L. J. Vontz Constr. Co. and In re Estate of Marsh both
state the general rule that the dismissal of an appeal from an
appellate court without an examination of the case upon its
merits operates as an affirmance of the judgment appealed
or attempted to be appealed from. 10 But both of these cases
are factually distinguishable from this matter. In both cases,
the dismissed appeals were properly perfected prior to their
dismissals. Here, Greer failed to perfect his first attempt to
appeal due to an expired notary stamp on the affidavit accom-
panying Greer’s application to proceed in forma pauperis.
Therefore, in this case, appellate court jurisdiction had never
been established.
 7
     State v. Melton, 

308 Neb. 159

, 

953 N.W.2d 246

 (2021). See § 25-1912(4).
 8
     Melton, supra note 7.
 9
     Id.
10
     L. J. Vontz Constr. Co., supra note 5; In re Estate of Marsh, supra note 6.
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             Nebraska Supreme Court Advance Sheets
                      309 Nebraska Reports
                               STATE v. GREER
                              Cite as 

309 Neb. 667

   Despite the absence of a properly perfected appeal, the par-
ties stipulated that the appeal would be dismissed. Greer then
properly perfected his second attempt to appeal within the
30-day filing limitation established by § 25-1912.
   Since Greer did not perfect his first appeal attempt, appellate
jurisdiction was never established to allow the determination
of any question relative to Greer’s appeal and nothing was
presented for review. 11 For that reason, Greer’s first appeal
was a procedural and legal nullity. As we have often stated in
other contexts, “‘[n]othing comes from nothing.’” 12 Therefore,
appellate jurisdiction was established when Greer properly per-
fected his second attempt to appeal.

                      Excessive Sentence
   Greer alleges that the sentence of 19 to 20 years’ imprison­
ment imposed for his second degree assault conviction was
excessive because the district court did not seriously or ade-
quately consider all of the mitigating sentencing factors, spe-
cifically Greer’s age, education and experience, mentality,
criminal history, and the circumstances of the offense. Greer
argues that the district court did not tailor his sentences to fit
him as the offender, but instead imposed the sentence to fit
the crime.
   [7] Greer’s conviction for second degree assault, a Class IIA
felony, is punishable by no minimum and a maximum of 20
years’ imprisonment. 13 When sentences imposed within statu-
tory limits are alleged on appeal to be excessive, the appellate
court must determine whether the sentencing court abused
its discretion in considering well-established factors and any
applicable legal principles. 14
11
     See State v. Miller, 

240 Neb. 297

, 

481 N.W.2d 580

 (1992).
12
     

Id. at 299,

 

481 N.W.2d at 581

.
13
     See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020).
14
     Gray, supra note 2.
                               - 675 -
           Nebraska Supreme Court Advance Sheets
                    309 Nebraska Reports
                          STATE v. GREER
                         Cite as 

309 Neb. 667

   [8,9] 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) moti-
vation 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. 15 The sentencing court is not limited to any math-
ematically applied set of factors, but the appropriateness of the
sentence is necessarily a subjective judgment that includes the
sentencing judge’s observations of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding the
defendant’s life. 16
   We review the sentence imposed for an abuse of discretion. 17
A judicial abuse of discretion exists only when the reasons or
rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in mat-
ters submitted for disposition. 18
   Greer was 51 years old at the time of sentencing and had
two prior DUI convictions. He had a poor history of perform­
ance while on probation and was operating his motor vehicle
in violation of a court’s license revocation order at the time of
the offense. Greer was driving with a blood alcohol content of
.311 of a gram of alcohol per 100 milliliters of his blood and
acknowledged to the probation officer that he was aware that
he should not have been driving. Finally, while Greer perhaps
showed some remorse for his actions, such remorse does not
counteract the lifelong effects of Greer’s choice to drink and
drive on his victim and her family.
   The district court recognized the appropriate factors when
imposing Greer’s sentence. The district court stated on the
15
     

Id.
16

     

Id.
17

     

Id.
18

     

Id.

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             Nebraska Supreme Court Advance Sheets
                      309 Nebraska Reports
                              STATE v. GREER
                             Cite as 

309 Neb. 667

record that it considered the PSR, which included information
for all of the factors to be considered by a sentencing court.
Though it may be good practice for district courts to provide
a record of their reasoning, we do not require the sentencing
court to articulate on the record that it has considered each
sentencing factor nor to make specific findings as to the facts
pertaining to the factors or the weight given them. 19
   Greer also argues that the sentence imposed fits only
the crime and not the offender. We disagree. The sentence
imposed properly reflected the seriousness of the crime com-
mitted, the long-lasting effect on the victim and her family, and
Greer’s prior criminal record and performance on probation.
Considering the totality of the circumstances, we cannot say
that the district court’s sentence was untenable. We find the
district court did not abuse its discretion in imposing a sen-
tence of 19 to 20 years’ imprisonment in this matter.

                       CONCLUSION
   For the foregoing reasons, the district court’s judgment is
affirmed.
                                                   Affirmed.
19
     See State v. McCulley, 

305 Neb. 139

, 

939 N.W.2d 373

 (2020).

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