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04/23/2020 10:10 AM CDT




                                                          - 441 -
                               Nebraska Supreme Court Advance Sheets
                                        305 Nebraska Reports
                                                  STATE v. VALDEZ
                                                  Cite as 305 Neb. 441




                                        State of Nebraska, appellee, v.
                                          Jose A. Valdez, appellant.
                                                     ___ N.W.2d ___

                                           Filed April 3, 2020.     No. S-19-475.

                 1. Judgments: Appeal and Error. When dispositive issues on appeal
                    pre­sent questions of law, an appellate court has an obligation to reach
                    an independent conclusion irrespective of the decision of the court
                    below.
                 2. Prior Convictions: Motor Vehicles: Homicide: Sentences: Evidence.
                    Evidence of a prior conviction must be introduced in order to enhance a
                    sentence for motor vehicle homicide.
                 3. Sentences. A sentence is illegal when it is not authorized by the judg-
                    ment of conviction or when it is greater or less than the permissible
                    statutory penalty for the crime.
                 4. Prior Convictions: Evidence: Appeal and Error. Where an appel-
                    late court determines that the evidence was insufficient to establish a
                    qualifying prior conviction, the appellate court’s determination does not
                    act as an acquittal or preclude a trial court from receiving additional
                    evidence of a qualifying prior conviction.
                 5. Waiver: Words and Phrases. A waiver is the voluntary and intentional
                    relinquishment of a known right, privilege, or claim, and may be dem-
                    onstrated by or inferred from a person’s conduct.
                 6. Waiver: Estoppel. To establish a waiver of a legal right, there must be
                    a clear, unequivocal, and decisive act of a party showing such a purpose,
                    or acts amounting to an estoppel on his or her part.

                 Appeal from the District Court for Madison County: Mark
               A. Johnson, Judge. Sentence vacated, and cause remanded
               with direction.
                 Matthew A. Headley, Madison County Public Defender, for
               appellant.
                              - 442 -
         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. VALDEZ
                        Cite as 305 Neb. 441

   Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
   Funke, J.
   Jose A. Valdez appeals his conviction and sentence from
the district court for Madison County. Valdez pled guilty
to enhanced motor vehicle homicide, a Class II felony. The
court accepted Valdez’ guilty plea, subject to enhancement,
which the parties agreed to address at the time of sentencing.
At the sentencing hearing, the issue of enhancement was not
addressed and no evidence was adduced on the matter, but the
court treated the offense as enhanced and sentenced Valdez
to a period of 24 to 25 years’ imprisonment and revoked his
driver’s license for 15 years.
   Valdez argues that the district court erred in failing to
receive evidence of a prior conviction, as required to sub-
ject him to enhancement penalties under Neb. Rev. Stat.
§ 28-306(3)(c) (Reissue 2016). Valdez contends that the sen-
tence should be vacated and the matter remanded to the district
court for resentencing as a Class IIA felony. The State agrees
that the district court erred in failing to hold an enhancement
hearing, but claims that the appropriate remedy is to remand
for a new enhancement and sentencing hearing. We remand
the cause with direction for a new enhancement and sentenc-
ing hearing.
                        BACKGROUND
   On the evening of December 8, 2017, in Norfolk, Nebraska,
Valdez attended a holiday gathering where he consumed alco-
hol to the point that his ability to operate a vehicle became
appreciably diminished. He left the party and drove east on
a highway until he attempted to turn left at an intersection.
Valdez turned left and crashed into the driver’s side of a vehi-
cle traveling west in the outside lane of the highway.
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. VALDEZ
                        Cite as 305 Neb. 441

   Upon arrival, officers observed Valdez sitting in the pas-
senger seat of his vehicle, which had extensive front-end dam-
age and sat off the roadway. An officer spoke with Valdez and
observed that he was slurring his words, that his eyes were
bloodshot and watery, and that he had alcohol on his breath.
Valdez admitted to drinking earlier. Another vehicle was
located in the intersection which had its driver’s side ripped
open. The driver of the second vehicle was unresponsive at the
scene. She was taken to a hospital and died from her injuries
approximately 1 week later.
   Valdez was transported to the emergency room of a Norfolk
hospital. A police officer with the Norfolk Police Department
had Valdez’ blood drawn pursuant to a search warrant. Valdez
had a blood alcohol content of .223 of a gram of alcohol per
100 milliliters of blood.
   Valdez was charged with motor vehicle homicide. The State
alleged that Valdez was operating the motor vehicle in viola-
tion of Neb. Rev. Stat. § 60-6,196 (Reissue 2010) or Neb. Rev.
Stat. § 60-6,197.06 (Cum. Supp. 2016) and that Valdez had a
prior conviction of § 60-6,196 or § 60-6,197.06, which would
enhance the charge to a Class II felony. Valdez pled guilty to
the offense, and in exchange for his plea, the State agreed to
recommend a maximum sentence of 25 years’ imprisonment
and not pursue additional charges or restitution. The district
court accepted Valdez’ plea and found him guilty subject to an
enhancement hearing. The parties agreed to take up the issue
of enhancement at sentencing, and the court set the matter for
a sentencing hearing. During sentencing, the court considered
the offense to be enhanced to a Class II felony and sentenced
Valdez to a period of 24 to 25 years’ imprisonment, with 1 day
of credit for time served, and revoked his driver’s license for 15
years. However, although in its comments the court referred to
the fact that Valdez has two prior convictions for driving under
the influence (DUI), the court did not receive any evidence
regarding the prior convictions and the parties did not address
enhancement prior to the court’s pronouncement of sentence.
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            Nebraska Supreme Court Advance Sheets
                     305 Nebraska Reports
                            STATE v. VALDEZ
                            Cite as 305 Neb. 441

                  ASSIGNMENTS OF ERROR
   Valdez assigns that the district court erred in (1) finding
him guilty of motor vehicle homicide, a Class II felony, absent
proof of enhancement and (2) imposing an excessive sentence.
Valdez also argues that his trial counsel was ineffective for
failing to (3) file a motion to suppress the blood test results,
(4) file a motion for recusal of the trial court, (5) object to evi-
dence introduced by the State at sentencing, and (6) make an
effective argument at sentencing.
                  STANDARD OF REVIEW
   [1] When dispositive issues on appeal present questions of
law, an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision of the court below. 1
                          ANALYSIS
   The issue in this case is whether upon remand the trial
court may conduct a new enhancement hearing. Valdez argues
that his current sentence is invalid, because the court did not
receive any evidence on the issue of enhancement, and that
based on the State’s failure to present evidence, the court
should have found him guilty of a Class IIA felony and sen-
tenced him accordingly. He requests that we remand with
instructions for resentencing on the reduced charge. The State
agrees that remand is required but claims that pursuant to State
v. Oceguera, 2 the appropriate remedy is to remand for a new
enhancement and sentencing hearing.
   A person commits motor vehicle homicide when he or she
causes the death of another unintentionally while engaged in
the operation of a motor vehicle in violation of the law of the
State of Nebraska or in violation of any city or village ordi-
nance. 3 Pursuant to § 28-306(3)(b), if the proximate cause of
the death of another is the operation of a motor vehicle in vio-
lation of § 60-6,196 (DUI) or § 60-6,197.06 (operating motor
1
    State v. Oceguera, 281 Neb. 717, 798 N.W.2d 392 (2011).
2
    Id.
3
    § 28-306(1).
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            Nebraska Supreme Court Advance Sheets
                     305 Nebraska Reports
                             STATE v. VALDEZ
                             Cite as 305 Neb. 441

vehicle during revocation period), motor vehicle homicide is a
Class IIA felony. Pursuant to § 28-306(3)(c), if the proximate
cause of the death of another is the operation of a motor vehicle
in violation of § 60-6,196 or § 60-6,197.06 and the defend­
ant has a prior conviction for a violation of § 60-6,196 or
§ 60-6,197.06, motor vehicle homicide is a Class II felony.
   In a proceeding to enhance a punishment because of prior
convictions, the State has the burden to prove such prior con-
victions. 4 Usually, the State will prove a defendant’s prior
convictions by introducing certified copies of the prior con-
victions or transcripts of the prior judgments. 5 The existence
of a prior conviction and the identity of the accused as the
person convicted may be shown by any competent evidence,
including the oral testimony of the accused and duly authen-
ticated records maintained by the courts or penal and custo-
dial authorities. 6
   [2] We find that enhancement of a motor vehicle homicide
sentence is analogous to habitual criminal enhancement and
enhancement of a DUI sentence. In each of these contexts,
the Legislature has provided for the use of prior convictions
to enhance a sentence. 7 Under § 60-6,197.02(2), the prosecu-
tor is required to present as evidence for purposes of sentence
enhancement a court-certified or authenticated copy of the
defendant’s prior conviction, which shall be prima facie evi-
dence of such prior conviction. Under § 60-6,197.02(3), the
court shall, as part of the judgment of conviction, make a find-
ing on the record as to the number of the convicted person’s
prior convictions. The convicted person shall be given the
opportunity to review the record of his or her prior convic-
tions, bring mitigating facts to the attention of the court prior
4
    State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004); State v. Ristau, 245
    Neb. 52, 511 N.W.2d 83 (1994).
5
    Ristau, supra note 4.
6
    Thomas, supra note 4.
7
    See, § 28-306(3)(c); Neb. Rev. Stat. § 29-2221(2) (Reissue 2016); Neb.
    Rev. Stat. § 60-6,197.02(2) (Cum. Supp. 2018).
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             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                              STATE v. VALDEZ
                              Cite as 305 Neb. 441

to sentencing, and make objections on the record regarding the
validity of such prior convictions. 8 We conclude that just as
in the context of habitual criminal and DUI sentence enhance-
ments, evidence of a prior conviction must be introduced in
order to enhance a sentence for motor vehicle homicide. 9
   [3] The State charged Valdez with motor vehicle homicide,
a Class II felony under § 28-306(3)(c). A Class II felony is
punishable by 1 to 50 years’ imprisonment. 10 Valdez claims
that his offense was improperly enhanced to a Class II felony,
because the State introduced no evidence of a prior convic-
tion under § 60-6,196 or 60-6,197.06. He claims that without
such evidence, the court could have found him guilty only of
a Class IIA felony under § 28-306(3)(b). A Class IIA felony
is punishable by 0 to 20 years’ imprisonment. 11 A sentence is
illegal when it is not authorized by the judgment of conviction
or when it is greater or less than the permissible statutory pen-
alty for the crime. 12 It is undisputed that the trial court did not
receive evidence necessary to subject Valdez to the enhanced
penalties under § 28-306(3)(c) and that Valdez’ sentence to a
period of 24 to 25 years’ imprisonment exceeds the statutory
limits for a Class IIA felony. Therefore, Valdez’ sentence is
illegal and must be vacated.
   The only question that remains is the appropriate remedy
for the State’s failure to adduce evidence of a prior convic-
tion. Under our precedent, we have consistently remanded
for a new enhancement hearing when the State has failed to
produce sufficient evidence of the requisite prior convictions
for enhancement purposes. 13 While we have not previously
 8
     § 60-6,197.02(3).
 9
     See Oceguera, supra note 1.
10
     Neb. Rev. Stat. § 28-105(1) (Reissue 2016).
11
     Id.
12
     State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).
13
     See, State v. Bruckner, 287 Neb. 280, 842 N.W.2d 597 (2014); Oceguera,
     supra note 1; State v. Hall, 268 Neb. 91, 679 N.W.2d 760 (2004); State v.
     Nelson, 262 Neb. 896, 636 N.W.2d 620 (2001); Ristau, supra note 4.
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              Nebraska Supreme Court Advance Sheets
                       305 Nebraska Reports
                               STATE v. VALDEZ
                               Cite as 305 Neb. 441

addressed this issue in the context of motor vehicle homicide,
we have found in the context of habitual criminal enhancement
and enhancement of a DUI sentence that the appropriate rem-
edy is to remand for another enhancement hearing. 14
   In Oceguera, the State failed to present sufficient evidence
of three valid prior DUI convictions to support a conviction
for a fourth offense and we remanded for a new enhancement
hearing. 15 In doing so, we recognized that neither our prior
case law nor any federal constitutional law prohibits a new
enhancement hearing. 16 An enhanced sentence imposed on a
persistent offender is not viewed as either a new jeopardy or
an additional penalty for the earlier crimes, but as a stiffened
penalty for the latest crime, which is considered to be an aggra-
vated offense because it is a repetitive one. 17
   The U.S. Supreme Court has said that except in capital
cases, a failure of proof at an enhancement hearing is not
analogous to an acquittal, and that such a failure of proof
does not trigger double jeopardy protections. 18 Following U.S.
Supreme Court precedent, numerous state appellate courts have
held that double jeopardy protections do not apply to sentence
enhancement hearings and do not prevent the presentation of
evidence of a prior conviction at a new enhancement hearing
on remand. 19
14
     See, Oceguera, supra note 1; Nelson, supra note 13.
15
     Oceguera, supra note 1.
16
     Id. (relying on Monge v. California, 524 U.S. 721, 118 S. Ct. 2246, 141 L.
     Ed. 2d 615 (1998)).
17
     Gryger v. Burke, 334 U.S. 728, 68 S. Ct. 1256, 92 L. Ed. 1683 (1948).
18
     Monge, supra note 16.
19
     See, Scott v. State, 454 Md. 146, 164 A.3d 177 (2017); State v. Salas, 2017
     NMCA 057, 400 P.3d 251 (2017); People v. Porter, 348 P.3d 922 (Colo.
     2015); State v. Collins, 985 So. 2d 985 (Fla. 2008); State v. Eggleston,
     164 Wash. 2d 61, 187 P.3d 233 (2008); Com. v. Wilson, 594 Pa. 106, 934
     A.2d 1191 (2007); Jaramillo v. State, 823 N.E.2d 1187 (Ind. 2005); State
     v. McLellan, 149 N.H. 237, 817 A.2d 309 (2003); Nelson, supra note 13;
     Bell v. State, 994 S.W.2d 173 (Tex. Crim. App. 1999); People v. Levin, 157
     Ill. 2d 138, 623 N.E.2d 317, 191 Ill. Dec. 72 (1993).
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              Nebraska Supreme Court Advance Sheets
                       305 Nebraska Reports
                                STATE v. VALDEZ
                                Cite as 305 Neb. 441

   Even though Valdez has not raised a double jeopardy argu-
ment, we are guided by the U.S. Supreme Court’s decision
in Monge v. California, 20 which addressed a factual and pro-
cedural context similar to that presented in this case. Monge
interpreted California’s “‘three-strikes’” law, which enhances
a defendant’s sentence based on a previous conviction for
a “serious felony.” 21 At the enhancement hearing, the State
alleged that the defendant had been convicted for assault with
a deadly weapon, but failed to support its allegation with
any substantive evidence. Nonetheless, the court enhanced the
defendant’s sentence. On appeal, the U.S. Supreme Court held
that insufficient evidence is not a bar to retrial of a defendant’s
enhanced status. 22
   [4] The Supreme Court of Pennsylvania has similarly con-
cluded that the prosecution is permitted to present enhance-
ment evidence at a sentencing hearing on remand after the
original sentence is vacated due to insufficient evidence on
the issue of enhancement. 23 The court reasoned that once the
original sentence is vacated, the sentence is rendered a nullity
and the trial court may treat the case anew for evidentiary pur-
poses. 24 Where an appellate court determines that the evidence
was insufficient to establish a qualifying prior conviction, the
appellate court’s determination does not act as an acquittal or
preclude a trial court from receiving additional evidence of a
qualifying prior conviction. 25
   [5,6] At oral argument before this court, Valdez contended
that by failing to adduce evidence of enhancement at the origi-
nal sentencing hearing, the State waived the issue of enhance-
ment. A waiver is the voluntary and intentional relinquishment
of a known right, privilege, or claim, and may be demonstrated
20
     Monge, supra note 16.
21
     Id., 524 U.S. at 724.
22
     See, id.; Salas, supra note 19.
23
     Wilson, supra note 19.
24
     Id.
25
     Scott, supra note 19.
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             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                              STATE v. VALDEZ
                              Cite as 305 Neb. 441

by or inferred from a person’s conduct. 26 A voluntary waiver,
knowingly and intelligently made, must affirmatively appear
from the record. 27 To establish a waiver of a legal right, there
must be a clear, unequivocal, and decisive act of a party show-
ing such a purpose, or acts amounting to an estoppel on his or
her part. 28 Further, the waiving party must have full knowledge
of all material facts. 29
   We find no evidence in our record that the State intended to
forgo enhancing Valdez’ sentence. The State’s charging deci-
sion, as evidenced by the State’s complaint filed in January
2018, was to prosecute Valdez for motor vehicle homicide
under § 28-306(3)(c), a Class II felony. At the plea hearing, the
State alleged as part of its factual basis that Valdez had a prior
conviction that would subject him to enhancement. Valdez
then entered a plea of guilty to the enhanced charge, a Class II
felony, and the court accepted the plea subject to an enhance-
ment hearing, and then scheduled that enhancement be taken
up at sentencing per agreement of the parties.
   The record indicates the court failed to recognize that
enhancement had not been addressed. At the enhancement and
sentencing hearing, the court opened by stating that “[t]his
matter comes on for sentencing today for the crime of motor
vehicle homicide, a Class II felony.” The court proceeded
directly to sentencing, possibly due to the fact that four wit-
nesses were present to provide testimony on the issue of
sentencing. In its closing comments articulating its reasons
for Valdez’ sentence, the court referenced Valdez’ two prior
convictions for DUI.
   For Valdez’ waiver argument to apply, he must show that
at some point, the State intended to prosecute him for a Class
IIA felony. Here, the State has never wavered from its position
to prosecute Valdez for a Class II felony. Moreover, Valdez’
26
     State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012).
27
     Id.
28
     Nelssen v. Ritchie, 304 Neb. 346, 934 N.W.2d 377 (2019).
29
     Id.
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. VALDEZ
                        Cite as 305 Neb. 441

waiver argument arises in a context in which he has pled guilty
to a Class II felony, in exchange for the State’s agreeing to
recommend a maximum sentence of 25 years’ imprisonment,
with no pursuit of additional charges or restitution. Were we
to accept Valdez’ argument that he be resentenced on a Class
IIA felony, that would raise questions regarding the validity of
the plea agreement, yet Valdez has not expressed a desire to
alter the plea agreement. Therefore, we reject Valdez’ waiver
argument.
   We vacate Valdez’ sentence and remand the cause with
directions for another enhancement and sentencing hearing.
Because of the disposition of this assignment of error, we need
not address the remainder of Valdez’ assignments of error.
                        CONCLUSION
   The district court erred when it enhanced Valdez’ sentence
for motor vehicle homicide absent evidence of a prior convic-
tion. We vacate Valdez’ sentence and remand the cause with
direction for another enhancement and sentencing hearing.
                              Sentence vacated, and cause
                              remanded with direction.
   Freudenberg, J., not participating.
