                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         STATE V. WEBB


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                               STATE OF NEBRASKA, APPELLANT,
                                               V.

                                   TYRONE WEBB, APPELLEE.


                            Filed August 15, 2017.    No. A-17-271.


       Appeal from the District Court for Lancaster County: KEVIN R. MCMANAMAN, Judge.
Affirmed.
       Joe Kelly, Lancaster County Attorney, and Daniel J. Zieg for appellant.
       Douglas L. Kerns for appellee.



       INBODY, RIEDMANN, and ARTERBURN, Judges.
       RIEDMANN, Judge.
                                        INTRODUCTION
        The State of Nebraska appeals from the order of the district court for Lancaster County
sentencing Tyrone Webb for his conviction of driving during revocation, subsequent offense. The
State argues that the sentence imposed was excessively lenient. Finding no abuse of discretion, we
affirm.
                                        BACKGROUND
        Webb was originally charged with driving during revocation, subsequent offense, and false
reporting. He pled no contest to driving during revocation, subsequent offense, and the State
dismissed the false reporting charge. According to the factual basis provided by the State at the
plea hearing, at 1:30 a.m. on March 27, 2016, Webb’s vehicle was stopped by police for failing to



                                              -1-
have its headlights on. Webb initially provided a false name to the officer, but when a pat down
search revealed an identification card with his real name, he admitted that he lied about his name
because his driver’s license was suspended. A search of the Department of Motor Vehicles’ records
revealed that Webb’s license was suspended until 2029 for a fifth offense driving while intoxicated
(DUI) conviction, and he had not been issued an interlock permit. At the plea hearing, the court
received into evidence a copy of a prior conviction for driving during revocation and found
sufficient evidence to establish that this was not Webb’s first conviction for driving during
revocation. Webb’s plea of no contest was accepted, and he was found guilty.
        At sentencing, the court indicated that it considered the statutorily required factors as well
as the information contained in the presentence investigation report (PSI). The court found that a
long period of incarceration was unnecessary given Webb’s age of 69 years old and the
circumstances of the offense. Webb was therefore sentenced to 30 days in jail and 3 years’
probation. His license was also revoked for an additional 15 years. The State timely appeals the
sentencing order.
                                   ASSIGNMENTS OF ERROR
        The State assigns that the district court abused its discretion in imposing an excessively
lenient sentence.
                                     STANDARD OF REVIEW
         When reviewing a sentence within the statutory limits, whether for leniency or
excessiveness, an appellate court reviews for an abuse of discretion. State v. Parminter, 283 Neb.
754, 811 N.W.2d 694 (2012). 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. Id.
                                             ANALYSIS
        The State argues that Webb’s sentence is excessively lenient given his criminal driving
history. The State also emphasizes that Webb was discharged from parole for his fifth DUI
conviction just two days before he was arrested in the present case. The State asserts that Webb’s
history makes clear that the only way to prevent Webb from driving and maintain the safety of the
general public is to impose a sentence of incarceration.
        Driving during revocation, subsequent offense is a Class IIA felony, punishable by up to
20 years’ incarceration. Neb. Rev. Stat. §§ 60-6,197.06(2) & 28-105 (Supp. 2015 & Reissue 2016).
In addition, the court was required to suspend Webb’s driver’s license for 15 years. See
§ 60-6,197.06(2). Thus, Webb’s sentence falls within the statutory limits, and we review it for an
abuse of discretion.
        In determining whether the sentence is excessively lenient, we consider the following
factors: (1) the nature and circumstances of the offense; (2) the history and characteristics of the
defendant; (3) the need for the sentence imposed to afford deterrence; (4) the need for the sentence
to protect the public from further crimes of the defendant; (5) the need for the sentence to reflect
the seriousness of the offense, to promote respect for the law, and to provide just punishment for
the offense; (6) the need for the sentence to provide the defendant with needed educational or



                                                 -2-
vocational training, medical care, or other correctional treatment in the most effective manner; and
(7) any other matters appearing in the record that the appellate court deems pertinent. State v.
Parminter, supra. See also Neb. Rev. Stat. § 29-2322 (Reissue 2016).
         A sentencing court is not limited in its discretion to any mathematically applied set of
factors. State v. Parminter, supra. The appropriateness of a sentence is necessarily a subjective
judgment and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the defendant’s life. Id. But the court must
have some reasonable factual basis for imposing a particular sentence. Id.
         We have reviewed the record, including the PSI, in light of the above considerations. Other
than a burglary conviction from 1970, Webb’s criminal history consists of offenses related to
driving. Between 2004 and 2014, he amassed 5 DUI convictions, 4 driving during suspension
convictions, and 1 driving during revocation conviction. For his most recent DUI, Webb was
sentenced to 30 months to 5 years’ imprisonment. He received no misconduct reports during his
term of incarceration. At that time, an inmate classification study was completed and concluded
that Webb would be recommended for substance abuse treatment programming, but acknowledged
that at his age, he may not wish to participate. According to the PSI before us, Webb reported that
he last drank alcohol at the time of his most recent DUI arrest, which occurred in February 2014.
         At sentencing, the court recognized Webb’s history of DUIs and his willingness to take a
risk by driving while intoxicated or without a valid license. However, the court also acknowledged
Webb’s willingness to enter a plea in this case, his age of 69, that he expressed remorse for his
actions, and the fact that the present offense did not involve drinking and driving. There are a
number of terms and conditions with which Webb must comply while on probation, and the
sentencing judge warned him that if he failed to comply with any of the probation conditions, he
was facing a very lengthy sentence, reminding him, “This is your chance, Mr. Webb.”
         Webb’s history of driving while intoxicated and without a valid license gives us significant
cause for concern. Clearly a more significant sentence could have been imposed and would likely
be imposed were we in the position to substitute our judgment for that of the district court.
However, we do not review the sentence de novo and the standard is not what sentence we would
have imposed. See State v. Antoniak, 16 Neb. App. 445, 744 N.W.2d 508 (2008). The district court
supported its sentence with a rationale found within portions of the record. We further note that
the district court had the opportunity to observe Webb and make a determination regarding his
level of acceptance of responsibility, regret for the offense, and ability to comply with probation.
Nonetheless, this is an extremely close case. Ultimately, however, given our standard of review,
we are constrained to find that the sentence imposed does not constitute an abuse of discretion.
                                          CONCLUSION
        We conclude that the sentence imposed does not constitute an abuse of the district court’s
discretion and is therefore not excessively lenient. Accordingly, we affirm the sentence imposed.
                                                                                         AFFIRMED.




                                                -3-
