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                   State of Nebraska, appellee, v.
                   Shawn R. Erpelding, appellant.
                                ___ N.W.2d ___

                   Filed December 31, 2015.   No. S-14-813.

 1.	 Statutes: Jury Instructions: Appeal and Error. Statutory interpreta-
     tion and whether jury instructions are correct are questions of law,
     which an appellate court reviews independently of the lower court’s
     determination.
 2.	 Convictions: Evidence: Appeal and Error. When reviewing the suf-
     ficiency of the evidence to sustain a criminal conviction, it is not the
     province of an appellate court to resolve conflicts in the evidence, pass
     on the credibility of witnesses, determine the plausibility of explana-
     tions, or reweigh the evidence; such matters are for the finder of fact.
 3.	 ____: ____: ____. When reviewing a criminal conviction for suffi-
     ciency of the evidence to sustain the conviction, the relevant question
     is whether, after viewing the evidence in the light most favorable to the
     prosecution, any rational trier of fact could have found the essential ele-
     ments of the crime beyond a reasonable doubt.
 4.	 Sentences: Appeal and Error. When reviewing a sentence within the
     statutory limits, whether for leniency or excessiveness, an appellate
     court reviews for an abuse of discretion.
 5.	 Criminal Law: Intent: Words and Phrases. In the context of a crimi-
     nal statute such as Neb. Rev. Stat. § 28-706 (Reissue 2008), “intention-
     ally” means willfully or purposely, and not accidentally or involuntarily.
 6.	 Criminal Law: Child Support: Proof. Generally, the burden of prov-
     ing an exemption to criminal nonsupport is on the party claiming it.
 7.	 Criminal Law: Child Support: Proof: Intent. The State is not required
     to prove that a defendant was able to pay in order to show that he or she
     intentionally failed to provide support.
 8.	 Criminal Law: Child Support: Evidence: Intent. Evidence of ability
     to pay support, coupled with evidence of nonpayment, is key circum-
     stantial evidence of an intent not to pay.
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  9.	 ____: ____: ____: ____. A defendant may present evidence to establish
      an “inability to pay” support in order to disprove intent.
10.	 Criminal Law: Intent. Intent may be inferred from the words or acts of
      a defendant and from the circumstances surrounding the incident.
11.	 Child Support. An obligation to support a minor child is not affected
      by the assignment of child support to the Department of Health and
      Human Services, which occurs pursuant to Neb. Rev. Stat. § 43-512.07
      (Cum. Supp. 2014).
12.	 Judgments: Collateral Attack. A collateral attack occurs when the
      validity of a judgment is attacked in a way other than in a proceeding in
      the original action.
13.	 Collateral Attack: Jurisdiction. Unless grounded upon the court’s lack
      of jurisdiction over the parties or subject matter, collateral attacks are
      impermissible.
14.	 Collateral Attack. The rule against collateral attacks applies equally to
      interlocutory orders and final judgments.
15.	 Collateral Attack: Jurisdiction. The policy of the collateral bar rule is
      to respect the jurisdiction of the court rendering the order and to encour-
      age obedience of courts’ orders.
16.	 Child Support: Judgments: Appeal and Error. A temporary child sup-
      port order is appealable from a final judgment on the issue of support.
17.	 Jury Instructions: Appeal and Error. Failure to object to a jury
      instruction after it has been submitted to counsel for review precludes
      raising an objection on appeal absent plain error indicative of a probable
      miscarriage of justice.
18.	 Appeal and Error. Plain error may be found on appeal when an error
      unasserted or uncomplained of at trial, but plainly evident from the
      record, prejudicially affects a litigant’s substantial right and, if uncor-
      rected, would result in damage to the integrity, reputation, and fairness
      of the judicial process.
19.	 Jury Instructions. As a general rule, in giving instructions to the jury,
      it is proper for the court to describe the offense in the language of
      the statute.
20.	 Jury Instructions: Statutes. The law does not require that a jury
      instruction track the exact language of the statute.
21.	 Lesser-Included Offenses: Jury Instructions: Evidence. A court must
      instruct a jury on a lesser-included offense if (1) the elements of the
      lesser offense are such that one cannot commit the greater offense with-
      out simultaneously committing the lesser offense and (2) the evidence
      produces a rational basis for acquitting the defendant of the greater
      offense and convicting the defendant of the lesser offense.
22.	 Effectiveness of Counsel: Jury Instructions. Defense counsel is not
      ineffective for failing to raise an argument that has no merit or for
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       failing to object to jury instructions that, when read together and taken
       as a whole, correctly state the law and are not misleading.
23.	   Criminal Law: Statutes. It is a fundamental principle of statutory con-
       struction that penal statutes be strictly construed, and it is not for the
       courts to supply missing words or sentences to make clear that which is
       indefinite, or to supply that which is not there.
24.	   Habitual Criminals: Notice: Time. Neb. Rev. Stat. § 29-2221 (Reissue
       2008) requires 3 days’ notice of an enhancement hearing and not merely
       notice of the sentencing hearing.
25.	   Statutes: Legislature: Intent. When interpreting a statute, a court’s
       objective is to determine and give effect to the legislative intent of
       the enactment.
26.	   Habitual Criminals: Notice. The purpose of the notice requirement in
       Neb. Rev. Stat. § 29-2221 (Reissue 2008) is to ensure that the defendant
       has reasonable time to prepare a defense.
27.	   Constitutional Law: Sentences. The Eighth Amendment’s proscrip-
       tion of cruel and unusual punishment prohibits not only barbaric pun-
       ishments, but also sentences that are grossly disproportionate to the
       crime committed.
28.	   Constitutional Law: Habitual Criminals: Legislature: Intent. When
       a court is faced with a habitual criminal enhancement, its Eighth
       Amendment proportionality review must take into account the
       Legislature’s goals in enacting such statute.
29.	   Constitutional Law: Sentences. With regard to whether the length
       of a sentence constitutes cruel and unusual punishment, the Nebraska
       Constitution does not require more than does the Eighth Amendment to
       the U.S. Constitution.
30.	   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 violence involved in the
       commission of the crime.

   Appeal from the District Court for Buffalo County: John P.
Icenogle, Judge. Affirmed.
   Jonathan R. Brandt, of Anderson, Klein, Swan & Brewster,
for appellant.
  Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
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  Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
  McCormack, J.
                     I. NATURE OF CASE
   Shawn R. Erpelding was convicted in a jury trial in the
district court for Buffalo County, Nebraska, of four counts of
criminal nonsupport under Neb. Rev. Stat. § 28-706 (Reissue
2008) for failure to pay 4 months of child support totaling
$900. After his sentences were enhanced by the habitual crimi-
nal statute, Neb. Rev. Stat. § 29-2221 (Reissue 2008), he was
sentenced to concurrent terms of 10 to 15 years on each count.
Erpelding appeals both his convictions and his sentences.
                       II. BACKGROUND
   On May 14, 2012, Erpelding filed a complaint with the dis-
trict court to establish paternity, custody, visitation, and child
support of his 4-year-old daughter, Grace Erpelding, who was
born out of wedlock. In July 2012, the court entered a tempo-
rary parenting plan granting primary physical and legal custody
of Grace to her mother, Diane Southall. On August 20, the
court ordered Erpelding to pay temporary child support in the
amount of $225 per month.
   The district court later held a final hearing on the plead-
ings to establish paternity, custody, parenting time, and child
support. Despite adequate notice of the hearing, Erpelding did
not appear. Pursuant to an order filed July 15, 2013, custody
was awarded to Southall. Erpelding was then ordered to pay
child support in the amount of $379 per month. The July 15
order did not mention the temporary child support obligation
or any arrearages.
   Erpelding failed to make any payments on the temporary
support order for over a year. He also did not make any pay-
ments on the July 15, 2013, child support order during that
time. On August 5, he was charged with criminal nonsupport
pursuant to § 28-706 based on his failure to pay the first 4
months of the temporary child support obligation. He was also
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charged with being a habitual criminal per § 29-2221 in the
information filed September 9.
               1. Temporary Child Support Order
   The journal entry filed August 20, 2012—the temporary
child support order—was entered into evidence at trial. It
reflects that Erpelding failed to provide adequate evidence of
his income for the district court to determine the amount of
temporary child support he was to pay:
      [Erpelding] has provided the court with an affidavit which
      is essentially, unenlightening. . . . Erpelding states that
      he is and has been engaged in a carpentry business for
      a number of years. He has not, apparently, filed income
      tax returns since tax year 2008. He states that his books
      reflect that he essentially breaks even in his business,
      though he admits he has had the ability to withdraw
      adequate funds to support his family prior to the departure
      of . . . Southall from his home. Essentially, the court is
      unable to determine the actual extent of any income being
      earned by . . . Erpelding and has been advised that . . .
      Southall has no current earning capacity. Absent a better
      showing of actual income, profit, and the nature to which
      business income has been utilized for personal expenses,
      the court has no real alternative but to pluck a number out
      of the air.
   Erpelding did not attempt to appeal that temporary child
support order or the July 15, 2013, judgment.
                    2. Efforts to Collect
   Southall began to receive Aid to Dependent Children (ADC)
assistance for Grace through the Department of Health and
Human Services (DHHS) in August 2012. By operation of law,
child support was assigned to DHHS.1 DHHS automatically
referred Erpelding’s case to Jann Davidson, a support enforce-
ment officer with the Buffalo County Attorney’s office.

 1	
      See Neb. Rev. Stat. § 43-512.07 (Cum. Supp. 2014).
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   As an enforcement officer, Davidson has the authority to
take a number of enforcement actions, including suspending
delinquent parties’ operator’s licenses, as well as professional
and recreational licenses. She apparently took such action
against Erpelding. On December 13, 2012, Erpelding received
a notice of intent to suspend his operator’s and recreational
licenses due to his delinquent child support payments. This
notice was in addition to the regular notices that Erpelding
received monthly.
   In March 2013, Erpelding’s operator’s and recreational
licenses were both suspended. Despite Davidson’s efforts, she
received no payments and no communication from Erpelding.
She eventually referred his case for criminal prosecution.
   On October 8, 2013, 2 months after Erpelding was charged
with criminal nonsupport, Erpelding paid $857 in child sup-
port. About a week after his payment, he contacted Davidson to
find out how to get his operator’s license back. Davidson testi-
fied that her office usually requires 3 months’ worth of pay-
ments, a withholding, and at least one payment from that with-
holding before it will certify compliance with the Department
of Motor Vehicles. But, in this case, Davidson agreed to give
Erpelding credit for the $857 in payments he had already made
and to allow his license to be reinstated if he let her put into
place a withholding from his employment. Erpelding disclosed
to Davidson the identity of one of his employers, and Davidson
was able to initiate the withholding. In addition to the $857
payment, Davidson was able to collect $644.95 less than a
month later.
   At Erpelding’s trial on nonsupport, Erpelding adduced evi-
dence suggesting that he had provided some undocumented
support to Grace. Southall testified that Erpelding paid half
of Grace’s daycare expenses directly to Southall and provided
things for Grace during visitations. But, on cross-examination,
Southall admitted she had previously testified at the hearing
on custody and support that she had not received any support
from Erpelding.
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                3. A bility to Pay Child Support
   The State called three witnesses who testified about
Erpelding’s financial status in the 3 months preceding the
months that he was charged with nonpayment (May, June,
and July 2012), as well as during those months he was
charged with nonpayment (August, September, October, and
November 2012).
   Vikki Stamm, an attorney in Buffalo County, testified that
she hired Erpelding to construct a building for her in May
2012. Stamm agreed to pay Erpelding $8,500 total for labor,
half to be paid up front and half to be paid upon completion
by the end of July. On May 7, Stamm paid Erpelding $4,250.
Stamm testified that Erpelding began work and had a crew
of four or five men working with him. After Erpelding failed
to show up consistently and Stamm saw his business vehicle
at other farms and businesses, she fired him mid-July before
he completed the project. Stamm testified that at the time she
terminated Erpelding, about 40 percent of the project was
completed, and that she did not pay Erpelding any additional
money. She also did not get back any part of the $4,250
already paid.
   Collin Nabity, a Buffalo County business owner, testified
that he hired Erpelding to do multiple jobs over the years,
including building a shed in the summer of 2012. Nabity testi-
fied that between June 29 and July 21, 2012, he paid Erpelding
$2,000 for labor to build the shed. Nabity said Erpelding had a
crew working with him, but did not know how much the crew
was paid.
   Wade Regier, a former branch manager of the Pinnacle Bank
in Palmer, Nebraska, also testified to Erpelding’s financial
situation. Regier testified that by June or July 2012, Erpelding
had fallen behind on payments for prior loans made to him by
Pinnacle Bank. In October 2012, Erpelding’s Pinnacle Bank
debt was consolidated into a single loan of $17,951.90. Under
this “new” loan, Erpelding was required to make monthly pay-
ments of $586.31 to begin on November 24, 2012.
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   Pinnacle Bank took as security for the loan a motorcy-
cle, three pickup trucks, a “Bobcat,” and a camper trailer
(Erpelding’s home), which Erpelding estimated to be valued at
$31,500 total. Regier testified that at the time of Erpelding’s
October 2012 loan application, Erpelding represented that he
had work lined up and had listed a few references.
   Erpelding’s loan application with Pinnacle Bank showed
additional assets, monthly obligations, and outstanding judg-
ments against him. Additional assets included tools and an
enclosed trailer, which Erpelding valued at $25,000 at the time
of his loan. The loan application showed monthly expenses
of $1,136 for housing and a vehicle. No value was given for
the outstanding judgments, but he listed “Care Credit - teeth,”
“Frontier,” and “Verizon - cellphone.” It also appears Erpelding
filed bankruptcy in 2007.
   Regier testified that Erpelding attempted to make at least
partial payments on the loan. Based on Regier’s testimony
that the bank attempted to recover the debt in 2013 and seized
all available assets, it appears Erpelding must have eventually
stopped making payments.
                    4. Jury Instructions on
                     Criminal Nonsupport
   Under § 28-706, a person commits criminal nonsupport if
he or she “intentionally fails, refuses, or neglects to provide
proper support which he or she knows or reasonably should
know he or she is legally obliged to provide to a . . . minor
child.” That crime is a misdemeanor unless “it is in violation
of any order of any court.” If in violation of a court order, the
crime is a felony.
   The jury was instructed that the elements of the crime
charged were as follows:
         (1) The defendant, . . . Erpelding, intentionally failed,
      refused, or neglected to provide proper support for his
      minor child, Grace . . . , born in 2008;
         (2) That [Erpelding] knew he was legally obliged to
      provide support to that child by an order of the District
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     Court of Buffalo County, Nebraska, entered on August 20,
     2012, in Case CI 12-291;
       (3) That these events occurred [in August, September,
     October, and November 2012]; and
       (4) These events occurred in Buffalo County, Nebraska.
Erpelding’s trial counsel did not object to these instructions
and did not offer additional instructions. The jury found
Erpelding guilty on all four counts of criminal nonsupport.
                       5. H abitual Criminal
                       Enhancement Hearing
   On June 12, 2014, about a week after his conviction,
Erpelding was ordered to appear for the sentencing hearing
to be held on August 22. The order did not contain a separate
notice that the habitual criminal enhancement hearing required
by § 29-2221 was to occur the same day.
   Habitual criminal enhancement is governed by § 29-2221,
which provides:
        (2) . . . If the accused is convicted of a felony, before
     sentence is imposed a hearing shall be had before the
     court alone as to whether such person has been previ-
     ously convicted of prior felonies. The court shall fix a
     time for the hearing and notice thereof shall be given
     to the accused at least three days prior thereto. At the
     hearing, if the court finds from the evidence submit-
     ted that the accused has been convicted two or more
     times of felonies and sentences imposed therefor by the
     courts of this or any other state or by the United States,
     the court shall sentence such person so convicted as a
     habitual criminal.
(Emphasis supplied.)
   At the sentencing hearing, Erpelding objected to proceed-
ing on the habitual criminal count. He asked that the count be
dismissed on the grounds that he did not receive the 3 days’
notice required by § 29-2221.
   The State argued it was not required to give separate notice
of the enhancement hearing, because Erpelding should have
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known that such hearing would occur immediately before the
sentencing hearing by virtue of the fact that § 29-2221 requires
the enhancement hearing to take place before sentencing. The
State cited State v. Poe,2 a Nebraska Court of Appeals case
not designated for publication in the permanent law reports,
for the proposition that the purpose of the notice requirement
in § 29-2221 is to ensure that the defendant has a reasonable
time to prepare a defense. Based on Poe, the State argued that
Erpelding had been given notice of the district court’s setting
of the sentencing date and was aware of the habitual criminal
allegations in the information, which were filed almost a year
before the enhancement hearing. Thus, the State argued, there
was no lack of notice and no prejudice to Erpelding. The sen-
tencing judge reviewed Poe, agreed with the State, and allowed
the hearing to proceed.
   Erpelding’s criminal history includes two prior felonies. In
1995, he was convicted of aggravated assault with a deadly
weapon; he was sentenced to 71⁄2 years’ imprisonment and
served less than 7 years. In 2004, Erpelding pled no contest to
his charge of felon in possession of a deadly weapon; he was
sentenced to 18 months to 3 years’ imprisonment and served
only 11 months 7 days.
   Besides those felonies on which his habitual criminal
enhancement was based, Erpelding has been convicted of a
number of other crimes. In December 2004, Erpelding was con-
victed of “Criminal Mischief, $500 to $1,500” and “Avoid[ing]
Arrest.” He was sentenced to 1 year of imprisonment for each
of those crimes. In 2005, he was convicted of “Deliver/Intent
to Deliver Controlled Substances” and was sentenced to 5
years’ probation. In 2011, he was convicted of “Driving Under
the Influence.” In 2012, he was found guilty of “Steal[ing]
Money o[r] Goods, less than $300,” and in June 2014, he was
convicted of “Attempted Unlawful Possession of a Deadly

 2	
      State v. Poe, No. A-91-102, 1992 WL 90034 (Neb. App. May 5, 1992) (not
      designated for permanent publication).
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Weapon.” These crimes are in addition to a number of traffic
violations, including six speeding tickets, four instances of
driving without a valid operator’s license, and three incidents
of driving under suspension.
   After both parties were heard, the district court stated:
         I don’t think the Legislature clearly intended that the
      habitual criminal enhancement would be attached to a
      criminal non-support conviction. It was clearly the pur-
      pose of the Legislature to punish people who were habit-
      ual criminal[s], particularly in the sense of either violent
      crimes or crimes that create substantial hazard to society
      and the community. Nonetheless they didn’t make an
      exception. I think it is unusual and probably not within
      the intent of our Legislature that an enhancement be
      attached to this type of a Class IV felony. But nonetheless
      I don’t have a choice. That’s what the Legislature requires
      me to do.
The court sentenced Erpelding to concurrent terms of 10 to 15
years’ imprisonment on each count. Erpelding appeals and is
no longer represented by trial counsel.

               III. ASSIGNMENTS OF ERROR
   Erpelding asserts, renumbered and restated, that (1) there
was insufficient evidence to support a finding of felony non-
support, (2) the district court violated the Sixth Amendment
of the federal Constitution when it failed to submit to the jury
the issue of whether Erpelding’s nonsupport was in violation
of any order of any court, (3) the district court erred for fail-
ing to require a jury instruction on a lesser-included offense
of misdemeanor criminal nonsupport and that his counsel was
ineffective for not requesting one, (4) the district court erred
in finding Erpelding was a habitual criminal and enhancing
his sentences, and (5) Erpelding received excessive and illegal
sentences contrary to the Eighth Amendment of the federal
Constitution, as well as the state Constitution.
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                 IV. STANDARD OF REVIEW
   [1] Statutory interpretation and whether jury instructions are
correct are questions of law, which an appellate court reviews
independently of the lower court’s determination.3
   [2,3] When reviewing the sufficiency of the evidence to
sustain a criminal conviction, it is not the province of this
court to resolve conflicts in the evidence, pass on the credibil-
ity of witnesses, determine the plausibility of explanations, or
reweigh the evidence; such matters are for the finder of fact.4
The relevant question 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 reasonable doubt.5
   [4] When reviewing a sentence within the statutory lim-
its, whether for leniency or excessiveness, an appellate court
reviews for an abuse of discretion.6

                         V. ANALYSIS
   A person commits the misdemeanor of criminal nonsup-
port when he or she “intentionally fails, refuses, or neglects to
provide proper support which he or she knows or reasonably
should know he or she is legally obliged to provide to a spouse
[or] minor child.”7 “[I]f it is in violation of any order of any
court,” the crime is a Class IV felony.8

 3	
      See State v. Loyuk, 289 Neb. 967, 857 N.W.2d 833 (2015).
 4	
      See, State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012); State v. Epp,
      278 Neb. 683, 773 N.W.2d 356 (2009); State v. Davis, 277 Neb. 161, 762
      N.W.2d 287 (2009).
 5	
      State v. Covey, 290 Neb. 257, 859 N.W.2d 558 (2015); State v. Nave, 284
      Neb. 477, 821 N.W.2d 723 (2012).
 6	
      State v. Parminter, 283 Neb. 754, 811 N.W.2d 694 (2012).
 7	
      § 28-706(1) (emphasis supplied).
 8	
      § 28-706(7).
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                     1. Insufficient Evidence
   Erpelding attacks the sufficiency of the evidence on almost
every element of felony nonsupport. Erpelding argues that the
State failed to prove Erpelding’s ability to pay and that, as a
result, there was insufficient evidence to demonstrate Erpelding
intentionally withheld support. Erpelding also argues that any
nonsupport was really to DHHS and not to his minor child.
Finally, Erpelding attacks the validity of the underlying order
and argues that his failure to pay could not have been “in viola-
tion of any order of any court.”9
                            (a) Intent
   Erpelding contends that the State failed to demonstrate he
had the requisite intent to commit the crime of nonsupport.
   Both parties argue under the assumption that the State must,
and has the burden to, prove that Erpelding was able to pay in
order to show that he intentionally failed to provide support.
Erpelding argues that the State failed to produce evidence
of his income sufficient to demonstrate he was able to pay.
The State, in contrast, asserts that Erpelding owned his own
business and was not out of work during the months he was
charged with nonsupport. The State argues that “[i]f Erpelding
was not earning enough to pay his support obligation with his
business, then he should have taken a second job to make ends
meet . . . .”10 The State also lists Erpelding’s assets and con-
tends that he could have sold them to pay his obligation. Some
other states’ nonsupport statutes explicitly make sufficient
ability to provide support an element of the crime,11 and other
states’ nonsupport statutes provide for an affirmative “inability

 9	
      Brief for appellant at 23.
10	
      Brief for appellee at 16.
11	
      23 Am. Jur. 2d Desertion and Nonsupport § 42 (2013) (citing Streater v.
      Cox, 336 Fed. Appx. 470 (6th Cir. 2009); Brooke v. State, 99 Fla. 1275,
      128 So. 814 (1930)).
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to pay” defense.12 Nebraska’s nonsupport statute does neither;
instead, § 28-706 merely requires proof that the defendant
intentionally failed to support his minor child.
   [5] We have said that in the context of a criminal statute
such as § 28-706, “intentionally” means willfully or purposely,
and not accidentally or involuntarily.13 But it does not follow
that the State must prove beyond a reasonable doubt, as part
of its prima facie case, both that the defendant’s nonpayment
was intentional and that the defendant’s nonpayment was not
accidental and not involuntary, e.g., that the defendant had the
ability to pay.
   [6] Requiring the State to prove that the defendant’s fail-
ure to provide support was not accidental and not involuntary
would force the State to try to prove a negative with informa-
tion not in its control. Generally, the burden of proving an
exemption rests on the party claiming it.14
   [7] We thus conclude that the State is not required to prove
that the defendant was able to pay in order to show that he or
she intentionally failed to provide support.
   [8] Nevertheless, evidence of ability to pay is not irrelevant
to the question of whether the defendant intentionally failed to
provide support. Often, evidence of ability to pay, coupled with
evidence of nonpayment, is key circumstantial evidence of an
intent not to pay.15
   [9] And, of course, a defendant may present evidence to
establish an “inability to pay” in order to disprove intent.

12	
      See, Ind. Code Ann. § 35-46-1-5 (LexisNexis 2009); Tex. Penal Code Ann.
      § 25.05 (West 2011).
13	
      State v. Bright, 238 Neb. 348, 470 N.W.2d 181 (1991); State v. Eichelberger,
      227 Neb. 545, 418 N.W.2d 580 (1988).
14	
      See Hamilton Cty. EMS Assn. v. Hamilton Cty., 291 Neb. 495, 866 N.W.2d
      523 (2015).
15	
      See, State v. Menuey, 239 Neb. 513, 476 N.W.2d 846 (1991); State v.
      Bright, supra note 13; State v. Meyer, 236 Neb. 253, 460 N.W.2d 656
      (1990); State v. Eichelberger, supra note 13.
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Indeed, Erpelding’s trial counsel argued during his closing
statement that Erpelding did not have the financial ability
to pay his child support obligation and thus could not have
intended not to pay. Erpelding brought up evidence that he
had fallen behind on his loan payments and had various
expenses. But the trier of fact implicitly rejected these argu-
ments. And we view the evidence in the light most favorable
to the State.
   Although Erpelding’s precise income is not clear, viewing
the evidence most favorable to the State, we conclude that
an ability to pay could be inferred from the totality of the
evidence and that the jury could have considered such ability
to pay in evaluating whether Erpelding intentionally failed to
provide for his minor child.
   The evidence shows Erpelding was not without work during
or in the 3 months preceding those months he was charged with
nonsupport. He had at least two construction jobs in May, June,
and July 2012. From Stamm’s testimony that Erpelding’s busi-
ness trailer was seen at other farms and businesses, and from
Regier’s testimony that Erpelding represented he had work
lined up, a jury could infer that Erpelding was also engaged in
other jobs during that time.
   The fact that Erpelding made partial payments on his bank
loan and was able to pay over 5 months’ worth of child sup-
port payments, or $1,252.95, during the 1-month period from
October 8 to November 8, 2013, in order to have his license
reinstated, also suggests that Erpelding had the ability to pay
before that time, but simply chose not to.
   Because we conclude that an ability to pay could be inferred
without requiring Erpelding to sell the tools and vehicle used
in his business, we do not respond to the State’s argument
that Erpelding should have sold them to pay his child sup-
port obligation.
   [10] Evidence of ability to pay is not the only circumstantial
evidence that may be used to prove intent to commit the crime
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of nonsupport. We have said that intent may be inferred from
the words or acts of the defendant and from the circumstances
surrounding the incident.16
   Assuming a defendant has notice of the support obligation
at issue, intent not to pay can be inferred from a continuous
failure to make even partial payments and from a failure to
communicate with child support services until after his or her
licenses were suspended and he or she was charged with crimi-
nal nonsupport.17
   Although Erpelding received monthly notices of his child
support obligation, he did not make even a partial payment
for over a year. He did not dispute the amount, contact child
support services, or appear to make any effort to satisfy his
child support obligations during that time. It was only after
Erpelding’s operator’s license was suspended and after he was
charged with felony nonsupport that Erpelding made any pay-
ments or reached out to child support services.
   In evaluating whether Erpelding intentionally failed to pay
support, the jury was free to reject Southall’s testimony that
Erpelding paid half of Grace’s daycare directly to Southall
and supported Grace during his visitations. After all, Southall
admitted she had previously testified at a custody hearing that
she had never received any child support from him.
   Viewing the evidence in a light most favorable to the State,
we conclude that a reasonable trier of fact could find, beyond
a reasonable doubt, that Erpelding intentionally failed, refused,
or neglected to pay the child support for the months of August,
September, October, and November 2012.

              (b) Nonsupport to His Minor Child
   [11] We quickly dispose of Erpelding’s meritless argument
that his nonsupport was really to DHHS and not to his minor

16	
      See, State v. Bright, supra note 13; State v. Eichelberger, supra note 13.
17	
      See In re Interest of Gabriella H., 289 Neb. 323, 855 N.W.2d 368 (2014).
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child. An obligation to support a minor child is not affected
by the assignment of child support to DHHS, which occurred
here by operation of law upon Southall’s receipt of ADC sup-
port for Grace.18
                     (c) Validity of Temporary
                        Child Support Order
   Erpelding next contends that any failure to support his minor
child could not have been “a violation of any order of any
court,” because the underlying temporary child support order
was “invalid,” and he claims that his trial counsel was ineffec-
tive for failing to challenge it at his criminal nonsupport trial.19
The State responds that his trial counsel could not be ineffec-
tive for failing to launch an impermissible collateral attack. We
agree with the State.
   [12,13] A collateral attack occurs when the validity of a
judgment is attacked in a way other than in a proceeding in
the original action.20 Unless grounded upon the court’s lack of
jurisdiction over the parties or subject matter, collateral attacks
are impermissible.21
   Erpelding does not attack the underlying temporary child
support order on a jurisdictional basis; rather, he argues that
the order was invalid because no child support calculation
was attached and because “the district court . . . ‘pluck[ed] a
number out of the air.’”22 Nonjurisdictional defects, such as
the one Erpelding alleges, render a judgment voidable, not
void, and may only be attacked directly.23 Thus, any challenge

18	
      See § 43-512.07.
19	
      Brief for appellant at 12, 13.
20	
      See State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005).
21	
      State v. Macek, 278 Neb. 967, 774 N.W.2d 749 (2009); State v. Smith,
      supra note 20.
22	
      Brief for appellant at 12.
23	
      Mayfield v. Hartmann, 221 Neb. 122, 375 N.W.2d 146 (1985); State ex rel.
      Casselman v. Macken, 194 Neb. 806, 235 N.W.2d 867 (1975).
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to the temporary support order at his criminal nonsupport trial
would have been an impermissible collateral attack. As a mat-
ter of law, counsel cannot be ineffective for failing to raise a
meritless argument.24
   Erpelding takes the position that a challenge of the underly-
ing order at his nonsupport trial would not have been a col-
lateral attack on a judgment, because, he argues, the temporary
child support order was not a final, appealable order. This argu-
ment assumes that an interlocutory order can be collaterally
attacked for reasons other than the court’s lack of jurisdiction
over the parties or the subject matter.
   [14,15] It is well established that the rule against col-
lateral attacks applies equally to interlocutory orders and
final judgments.25 The broad application of the rule comports
with the rule’s policy, which is to respect the jurisdiction of
the court rendering the order and to encourage obedience of
courts’ orders.26
   [16] We recognize an exception to the collateral bar rule
may exist where a defendant’s constitutional rights are at risk,
e.g., where a defendant is charged with a crime based on an
interlocutory order not yet appealable.27 But we need not con-
sider such circumstance here, because the temporary child sup-
port order at issue was followed by a final resolution of cus-
tody and support—the July 15, 2013, judgment—from which

24	
      State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011).
25	
      50 C.J.S. Judgments § 713 (2009). See, also, State, ex rel. C., B. & Q. R.
      Co., v. N. Lincoln St. Ry. Co., 34 Neb. 634, 52 N.W. 369 (1892); Annot.,
      12 A.L.R. 1165 (1921); John R.B. Palmer, Collateral Bar and Contempt:
      Challenging a Court Order After Disobeying It, 88 Cornell L. Rev. 215
      (2002).
26	
      Penny v. Alliance Trust Co., 259 F. 558 (8th Cir. 1919); Palmer, supra note
      25; Doug Rendleman, Toward Due Process in Injunction Procedure, 1973
      Ill. Law Forum 221. See, also, Maness v. Meyers, 419 U.S. 449, 95 S. Ct.
      584, 42 L. Ed. 2d 574 (1975).
27	
      See, Maness v. Meyers, supra note 26; Palmer, supra note 25.
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Erpelding could have appealed the temporary child support
order.28 He did not.
   Because Erpelding could have appealed the temporary
child support order at the time of the July 15, 2013, judg-
ment, he was precluded from collaterally attacking the tem-
porary child support order at his criminal nonsupport trial.
And he is precluded from collaterally attacking it now on
appeal. Likewise, for these reasons, trial counsel was not
ineffective for failing to collaterally attack the temporary
child support order.

                       2. Jury Instructions
   Erpelding makes two arguments with respect to the jury
instructions. First, he argues that the district court violated the
Sixth Amendment and the U.S. Supreme Court’s decision in
Apprendi v. New Jersey,29 when it allegedly failed to provide
for a jury determination of an essential element of the crime,
i.e., whether Erpelding’s nonsupport was “in violation of any
order of any court.” Second, Erpelding argues that the district
court erred in, and his counsel was ineffective for, failing to
require a jury instruction on the lesser-included offense of mis-
demeanor child support.

                  (a) Sixth Amendment Claim
   [17] Erpelding did not object at trial to the jury instructions
he now assigns as error. Failure to object to a jury instruction
after it has been submitted to counsel for review precludes
raising an objection on appeal absent plain error indicative of

28	
      See, Jessen v. Jessen, 259 Neb. 644, 611 N.W.2d 834 (2000); Gainsforth
      v. Peterson, 113 Neb. 1, 201 N.W. 645 (1924); Dartmann v. Dartmann,
      14 Neb. App. 864, 717 N.W.2d 519 (2006). See, also, Schropp Indus. v.
      Washington Cty. Atty.’s Ofc., 281 Neb. 152, 794 N.W.2d 685 (2011); Hallie
      Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006).
29	
      Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
      (2000).
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a probable miscarriage of justice.30 Erpelding does not argue
that trial counsel was ineffective for failing to object to the jury
instructions at trial.
    [18] Plain error may be found on appeal when an error unas-
serted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if
uncorrected, would result in damage to the integrity, reputa-
tion, and fairness of the judicial process.31
    We find no error in the jury instruction that is plainly evi-
dent, nor do we find prejudice that affected any substantial
right of Erpelding.
    A person commits criminal nonsupport when he or she
“intentionally fails, refuses, or neglects to provide proper sup-
port which he or she knows or reasonably should know he
or she is legally obliged to provide to a . . . minor child.”32
The crime is a felony if “it is in violation of any order of
any court.”33
    The district court instructed the jury that Erpelding was
guilty of felony nonsupport if the jury found that Erpelding
“(1) . . . intentionally failed, refused, or neglected to provide
proper support for his minor child” and “(2) . . . knew he was
legally obliged to provide support to that child by an order
of the District Court of Buffalo County, Nebraska, entered
on August 20, 2012, in Case CI 12-291.” The court also
instructed the jury that it must find that the events occurred
in Buffalo County during August, September, October, and
November 2012.
    [19,20] As a general rule, in giving instructions to the jury,
it is proper for the court to describe the offense in the language

30	
      State v. Abdulkadir, 286 Neb. 417, 837 N.W.2d 510 (2013); State v. Watt,
      285 Neb. 647, 832 N.W.2d 459 (2013).
31	
      State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012); State v. Williams,
      282 Neb. 182, 802 N.W.2d 421 (2011).
32	
      § 28-706(1).
33	
      § 28-706(7).
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of the statute.34 But the law does not require that a jury instruc-
tion track the exact language of the statute.35 Thus, we do not
find that the district court’s failure to include the exact phrase
“in violation of any order of any court,” if error at all, is error
which is plainly evident from the record.
   Furthermore, no evidence suggests that the instructions
given to the jury prejudicially affected a substantial right of
Erpelding. In fact, Erpelding does not contest that he violated
the temporary child support order. Instead, he takes the posi-
tion that the order was “invalid” and that its validity should
have been submitted to the jury. As we already explained, the
validity of the order was not subject to attack.
   We find that the jury instructions were not plain error and
that there was no indication of a miscarriage of justice.

                  (b) Lesser-Included Offense
   Erpelding also argues that the district court erred for fail-
ing to require a jury instruction on a lesser-included offense
of misdemeanor criminal nonsupport and that his counsel was
ineffective for not requesting one. Erpelding’s argument fails
because it is premised on the incorrect assumption that the tem-
porary child support order was subject to attack at his criminal
nonsupport trial.
   [21,22] A court must instruct a jury on a lesser-included
offense if (1) the elements of the lesser offense are such that
one cannot commit the greater offense without simultaneously
committing the lesser offense and (2) the evidence produces
a rational basis for acquitting the defendant of the greater

34	
      State v. Glantz, 251 Neb. 947, 560 N.W.2d 783 (1997); State v. Neujahr,
      248 Neb. 965, 540 N.W.2d 566 (1995); State v. Friend, 230 Neb. 765, 433
      N.W.2d 512 (1988), disapproved on other grounds, State v. Harney, 237
      Neb. 512, 466 N.W.2d 540 (1991).
35	
      89 C.J.S. Trial § 730 (2012). See, State v. Loyuk, supra note 3; State
      v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010); State v. Glantz, supra
      note 34.
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offense and convicting the defendant of the lesser offense.36
Defense counsel is not ineffective for failing to raise an argu-
ment that has no merit or for failing to object to jury instruc-
tions that, when read together and taken as a whole, correctly
state the law and are not misleading.37
   Although felony nonsupport cannot be committed without
simultaneously committing the lesser offense of misdemeanor
nonsupport, no evidence was or could have been produced
at Erpelding’s criminal nonsupport trial that would provide a
rational basis for acquitting him of felony nonsupport. The
only difference between misdemeanor and felony nonsupport
is that felony nonsupport is in violation of any order of any
court. Erpelding’s counsel did not and could not have chal-
lenged the validity of the underlying support order at his crimi-
nal nonsupport trial for the reasons discussed above.
   We conclude that the court was not required to instruct the
jury on the lesser-included offense, and Erpelding’s counsel
could not have been ineffective for failing to request the court
to do so. Erpelding’s argument is without merit.

             3. H abitual Criminal Enhancement
  Habitual criminal enhancement is governed by § 29-2221,
which provides:
       (1) Whoever has been twice convicted of a crime,
    sentenced, and committed to prison . . . for terms of not
    less than one year each shall, upon conviction of a felony
    committed in this state, be deemed to be a habitual crimi-
    nal and shall be punished by imprisonment . . . for a man-
    datory minimum term of ten years and a maximum term
    of not more than sixty years . . . .

36	
      State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009); State v. Robinson,
      272 Neb. 582, 724 N.W.2d 35 (2006), abrogated on other grounds, State
      v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010); State v. Weaver, 267 Neb.
      826, 677 N.W.2d 502 (2004).
37	
      State v. Young, supra note 35.
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         ....
         (2) . . . If the accused is convicted of a felony, before
      sentence is imposed a hearing shall be had before the
      court alone as to whether such person has been previ-
      ously convicted of prior felonies. The court shall fix a
      time for the hearing and notice thereof shall be given
      to the accused at least three days prior thereto. At the
      hearing, if the court finds from the evidence submit-
      ted that the accused has been convicted two or more
      times of felonies and sentences imposed therefor by the
      courts of this or any other state or by the United States,
      the court shall sentence such person so convicted as a
      habitual criminal.
(Emphasis supplied.)
   Erpelding argues that his sentences should not have been
enhanced, because he did not receive notice of the enhance-
ment hearing as required by § 29-2221. The State’s position
appears to be that it is not required to provide the defendant
with a separate notice of the enhancement hearing, but, rather,
that it is sufficient that “[Erpelding] have three days’ notice
supplied in a manner calculated to give him notice that there
will be such a hearing.”38
   The State argues that because Erpelding was aware of the
habitual criminal charge and because § 29-2221 requires that
the enhancement hearing occur before sentencing, Erpelding
should have known that the enhancement hearing would occur
immediately before the sentencing hearing. Under the State’s
theory, notice of the sentencing hearing constitutes notice of
the enhancement hearing, so long as the defendant is aware of
his or her habitual criminal charge.
   [23,24] It is a fundamental principle of statutory construc-
tion that penal statutes be strictly construed, and it is not for
the courts to supply missing words or sentences to make clear

38	
      Brief for appellee at 19.
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that which is indefinite, or to supply that which is not there.39
Section 29-2221 clearly requires 3 days’ notice of the enhance-
ment hearing and not merely notice of the sentencing hearing.
The problem is that the statute does not specify the conse-
quence of inadequate notice of the enhancement hearing.
   [25,26] When interpreting a statute, a court’s objective is to
determine and give effect to the legislative intent of the enact-
ment.40 The purpose of the notice requirement in § 29-2221
is to ensure that the defendant has reasonable time to prepare
a defense.41 Thus, we conclude that the effect of inadequate
notice of the enhancement hearing depends on whether the
defendant was prejudiced by the lack of notice.
   Even if Erpelding had received 3 days’ notice of the enhance-
ment hearing, the result would not be different. On appeal,
Erpelding raises only one substantive issue with respect to the
enhancement, and it is without merit.
   Erpelding argues that his nonsupport conviction is not a fel-
ony as required for enhancement, because his failure to provide
support was not “in violation of any order of any court.” We
already explained that Erpelding could not have attacked the
validity of the temporary child support order at his nonsupport
trial. Under the same reasoning, he could not have attacked the
validity of the order at his criminal enhancement or sentencing
hearing. Because this argument is without merit, we conclude
that the lack of notice of the enhancement hearing was harm-
less and that no prejudice occurred.
   We realize this result is essentially in line with the State’s
position that notice of the sentencing hearing constitutes notice
of the enhancement hearing. But we cannot endorse the State’s
approach. It is our duty to uphold the law, and § 29-2221
requires notice of the enhancement hearing. The defendant

39	
      State v. Thacker, 286 Neb. 16, 834 N.W.2d 597 (2013); State v. McCarthy,
      284 Neb. 572, 822 N.W.2d 386 (2012).
40	
      State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).
41	
      See State v. Cole, 192 Neb. 466, 222 N.W.2d 560 (1974).
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should be given the notice that the statute requires. We deter-
mine that the State violated § 29-2221, but that such violation
does not result in reversal under the facts of this case. We
admonish the State to follow the 3-day notice requirement
of § 29-2221.
                          4. Sentencing
   Erpelding argues that his sentences are excessive and violate
the Eighth Amendment to the U.S. Constitution and article
I, § 9, of the Nebraska Constitution, both of which prohibit
the infliction of cruel and unusual punishment. Erpelding
complains that his concurrent sentences of 10 to 15 years’
imprisonment are grossly disproportionate to his crime of
nonsupport, i.e., his failure to pay 4 months of child support,
totaling $900.
                     (a) Eighth Amendment
   [27] Erpelding is correct that the Eighth Amendment’s pro-
scription of cruel and unusual punishment prohibits not only
barbaric punishments, but also sentences that are grossly dis-
proportionate to the crime committed. But when weighing the
punishment and the crime, Erpelding fails to place all relevant
items on the scale.
   [28] In weighing the gravity of his offense, we must place
on the scale, not only Erpelding’s crime of nonsupport, but
also his history of felony recidivism. The U.S. Supreme Court,
in Ewing v. California,42 made clear that when a court is faced
with a habitual criminal enhancement, its Eighth Amendment
proportionality review must take into account the Legislature’s
goals in enacting such statute, i.e., to deter repeat offenders
and to separate from society those who are “‘incapable of
conforming to the norms of society as established by its crimi-
nal law.’”43

42	
      Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108
      (2003).
43	
      Id., 538 U.S. at 29.
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    In Ewing, the defendant was convicted of felony grand theft
for stealing three golf clubs after two other felony convic-
tions. California’s habitual criminal statute allowed Ewing
to be sentenced to 25 years’ to life imprisonment. The Court
explained that the Constitution “‘does not mandate adoption
of any one penological theory,’” but that instead, “[a] sentence
can have a variety of justifications . . . .”44 In Ewing, the Court
explained that the defendant’s sentence was justified by the
State’s public safety interest in deterring repeat felons and was
sufficiently supported by his criminal record, which involved
numerous misdemeanor and felony offenses.
    [29] With regard to whether the length of a sentence consti-
tutes cruel and unusual punishment, the Nebraska Constitution
does not require more than does the Eighth Amendment to the
U.S. Constitution.45 That is why we followed the reasoning of
Ewing in State v. Hurbenca.46
    In Hurbenca, the defendant’s sentence for attempted escape
was enhanced per § 29-2221, to 10 to 15 years’ imprisonment,
based on his prior felony convictions. He had previously been
convicted of possession of a forged certificate of title, theft by
receiving stolen property, attempting to procure a fraudulent
title, and possession of a firearm by a felon. We concluded that
the defendant’s sentence was not grossly disproportionate and
did not violate the Eighth Amendment’s prohibition against
cruel and unusual punishment.
    In the present case, Erpelding was convicted of two prior
felonies, aggravated assault with a deadly weapon and felon
in possession of a deadly weapon. Those crimes form the
basis for the habitual criminal enhancement on Erpelding’s
felony nonsupport conviction. Additionally, Erpelding’s pre-
sentencing report shows he has been convicted of several

44	
      Id., 538 U.S. at 25.
45	
      State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008); State v. Hurbenca, 266
      Neb. 853, 669 N.W.2d 668 (2003).
46	
      State v. Hurbenca, supra note 45.
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other crimes. In 2004, Erpelding was convicted of “Criminal
Mischief, $500 to $1,500” and “Avoid[ing] Arrest.” In 2005,
he was convicted of “Deliver/Intent to Deliver Controlled
Substances.” In 2011, he was convicted of “Driving Under the
Influence.” In 2012, he was found to have “St[olen] Money
o[r] Goods,” and in 2014, he was convicted of “Attempted
Unlawful Possession of a Deadly Weapon.” He has also com-
mitted a number of traffic violations throughout the years,
including six speeding incidents, four incidents of driving
without a valid operator’s license, and three incidents of driv-
ing under suspension.
   Though we think 10 to 15 years’ imprisonment may be the
maximum end of the spectrum, it is not unconstitutional. It is
justified by the State’s public safety interest in deterring repeat
felons and sufficiently supported by his criminal record.

                        (b) Excessiveness
   [30] Erpelding also claims his sentences are excessive.
When reviewing a sentence within the statutory limits, whether
for leniency or excessiveness, an appellate court reviews for an
abuse of discretion.47 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 violence involved in the commission of
the crime.48
   We find no abuse of discretion on the part of the district
court in imposing Erpelding’s sentences. The Legislature
made the intentional failure to pay child support a felony
if it is “in violation of any order of any court.”49 Erpelding

47	
      State v. Parminter, supra note 6.
48	
      State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011); State v. Vasquez, 271
      Neb. 906, 716 N.W.2d 443 (2006).
49	
      See § 28-706(7).
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clearly had a court order directing him to pay support, and
the jury found that Erpelding failed to pay that support.
Under the law, Erpelding committed a felony. Because non-
support was Erpelding’s third felony, the prosecutor had the
discretion to, and ultimately chose to, charge Erpelding with
being a habitual criminal. When a defendant is charged with
being a habitual criminal under § 29-2221, upon proof that
the latest felony conviction is, at least, the defendant’s third
felony conviction, the statute requires the court to impose a
mandatory minimum term of 10 years in prison. The maxi-
mum term is 60 years. Erpelding was sentenced to 10 to
15 years’ imprisonment. Given Erpelding’s criminal history
already discussed, we conclude that the district court did not
abuse its discretion in sentencing Erpelding to 10 to 15 years’
imprisonment.

                     VI. CONCLUSION
  For the reasons set forth herein, the judgment of the district
court is affirmed.
                                                   A ffirmed.

   Miller-Lerman, J., concurring.
   I concur and write separately only to address the habitual
criminal charge. By focusing on the triggering offenses of non-
payment of child support, the imposition of a habitual criminal
charge may seem out of line; however, in view of the purpose
of the habitual criminal statute and Erpelding’s long history of
criminal conduct, I believe the decision to pursue the habitual
criminal charge in this case makes more sense.
   At the enhancement hearing, the evidence showed that
Erpelding had been convicted of two prior felonies: aggravated
assault with a deadly weapon, for which he received a 71⁄2-
year sentence, and felon in possession of a deadly weapon, for
which he received an 18-month sentence. These felony convic-
tions formed the basis for enhancement pursuant to Neb. Rev.
Stat. § 29-2221 (Reissue 2008).
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                       STATE v. ERPELDING
                        Cite as 292 Neb. 351

   The record also showed that Erpelding had been convicted
of numerous other crimes and violations as outlined in the
majority opinion:
      In 2004, Erpelding was convicted of “Criminal Mischief,
      $500 to $1,500” and “Avoid[ing] Arrest.” In 2005, he
      was convicted of “Deliver/Intent to Deliver Controlled
      Substances.” In 2011, he was convicted of “Driving
      Under the Influence.” In 2012, he was found to have
      “St[olen] Money o[r] Goods,” and in 2014, he was
      convicted of “Attempted Unlawful Possession of a
      Deadly Weapon.” He has also committed a number of
      traffic violations throughout the years, including six
      speeding incidents, four incidents of driving without a
      valid operator’s license, and three incidents of driving
      under suspension.
   Erpelding’s crimes resulted variously in fines, probation, and
1-year sentences. Taken together, Erpelding’s crimes occurred
in the State of Arizona and in the following Nebraska coun-
ties: Buffalo, Nance, Kearney, Harlan, Dawson, Lancaster,
Seward, and Gage. According to the presentence investigation,
there were charges pending: in Buffalo County for assault
in the third degree and in Jefferson County for manufactur-
ing or delivery of methamphetamine, felon in possession of
a deadly weapon, and habitual criminal. During the pendency
of this case, an additional action in Buffalo County, in which
Erpelding was charged with escape from custody and being a
habitual criminal, was dismissed. At the time of the enhance-
ment hearing, Erpelding was serving a sentence for a Seward
County conviction for attempted unlawful possession of a
deadly weapon.
   Claims that the habitual criminal sentence is disproportion-
ate to the offense are not uncommon. In fact, this court has
rejected such a challenge. See State v. Hurbenca, 266 Neb.
853, 669 N.W.2d 668 (2003). In Hurbenca, we gave defer-
ence to the Legislature’s choice of sanctions and cited the
U.S. Supreme Court decision in Ewing v. California, 538 U.S.
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                        STATE v. ERPELDING
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11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003). In Ewing, the
Court stated:
      [T]he State’s interest is not merely punishing the offense
      of conviction, or the “triggering” offense: “[I]t is in addi-
      tion the interest . . . in dealing in a harsher manner with
      those who by repeated criminal acts have shown that they
      are simply incapable of conforming to the norms of soci-
      ety as established by its criminal law.” . . . To give full
      effect to the State’s choice of this legitimate penological
      goal, our proportionality review of [the defendant’s] sen-
      tence must take that goal into account.
         [The defendant’s] sentence is justified by the State’s
      public-safety interest in incapacitating and deterring
      recidivist felons, and amply supported by [the defend­
      ant’s] own long, serious criminal record.
538 U.S. at 29-30.
   The “sentence-related” characteristics considered in the
context of a proportionality analysis commonly include the
length of prison term the defendant is likely to actually serve,
the sentence-triggering conduct, and the defendant’s crimi-
nal history. See id., 538 U.S. at 37 (Breyer, J., dissenting;
Stevens, Souter, and Ginsburg, JJ., join). See, also, Rummel
v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382
(1980). Focusing on the triggering crimes in this case does
not initially seem to warrant enhancement to habitual criminal
status, and the actual cost of incarceration to the public and
to Erpelding initially may appear disproportionate. However,
when viewed in the context demonstrated in the record, the
prosecutorial decision to go forward with the habitual criminal
charge in this particular case has a rational, if not particularly
economical, basis.
