                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                        STATE V. KENYIBA


  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, APPELLEE,
                                              V.
                                 PAUL B. KENYIBA, APPELLANT.


                           Filed December 24, 2013.      No. A-13-459.


       Appeal from the District Court for Lancaster County: STEPHANIE F. STACY, Judge.
Affirmed.
       Dennis R. Keefe, Lancaster County Public Defender, and Elizabeth Elliott for appellant.
       Jon Bruning, Attorney General, and George R. Love for appellee.


       INBODY, Chief Judge, and IRWIN and RIEDMANN, Judges.
       RIEDMANN, Judge.
                                        INTRODUCTION
         Paul B. Kenyiba appeals his plea-based conviction of driving under the influence (DUI),
third offense, with a breath alcohol concentration of .15 or greater. Kenyiba asserts that his two
prior DUI convictions from Kentucky are not valid for purposes of enhancement and that the
district court imposed an excessive sentence. Because we find no merit to Kenyiba’s arguments
on appeal, we affirm.
                                        BACKGROUND
        On March 31, 2012, at approximately 11:25 a.m., an Officer Dolberg of the Lincoln
Police Department observed a Chrysler Sebring traveling westbound on Adams Street between
3d and 4th Streets in Lincoln, Lancaster County, Nebraska. The vehicle crossed the centerline
with both driver’s side tires, then collided with the curb on the north side of Adams Street. The
vehicle did not have license plates or in-transit tags. Officer Dolberg initiated a traffic stop and
identified the driver as Kenyiba. Officer Dolberg detected a strong odor of alcohol coming from


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the vehicle and observed that Kenyiba had red, bloodshot, and watery eyes. Officer Dolberg
asked Kenyiba to step out of the vehicle and noticed that Kenyiba staggered, swayed, and
stumbled as he walked. Kenyiba failed a preliminary breath test and was taken into custody. The
result of Kenyiba’s subsequent chemical breath test was .272 grams of alcohol per 210 liters of
his breath.
        Kenyiba was charged with DUI with a breath alcohol concentration of .15 or greater. The
information also alleged that Kenyiba had two prior DUI convictions for offenses that occurred
in Jefferson County, Kentucky, on January 24 and March 9, 2007. Kenyiba pled no contest to the
underlying offense of DUI, .15 or greater, in exchange for the State’s promise not to file any
additional charges arising out of this incident. The district court accepted Kenyiba’s plea and
found him guilty beyond a reasonable doubt.
        An enhancement hearing was held in the district court, during which the State introduced
certified copies of court documents reflecting Kenyiba’s two prior Kentucky DUI convictions.
Exhibit 1 is a “Daily Disposition Report” from Jefferson District Court reflecting two separate
cases, 07-T-007094 and 07-T-022817, in which Kenyiba appeared with counsel, entered guilty
pleas, and was sentenced for “Op MV Under/Influence of Alcohol/Drugs, etc. .08 1st off.”
Exhibits 2 and 3 contain court-certified copies of the “guilty plea” form and uniform citation for
each case, which indicate that Kenyiba was arrested for DUI on January 24 and March 9, 2007,
and pled guilty to both offenses on March 14.
        Kenyiba did not object to the admission of these exhibits into evidence, but he did object
to the validity of the prior convictions for enhancement. Kenyiba argued that the exhibits failed
to clearly show the offenses to which he pled and whether there were two separate convictions.
The district court found that both of the prior convictions were valid for enhancement purposes
and enhanced Kenyiba’s current DUI to a third offense, a Class IIIA felony. The district court
sentenced Kenyiba to 3 to 5 years’ imprisonment and revoked his driver’s license for 15 years.
Kenyiba timely appeals.
                                 ASSIGNMENTS OF ERROR
        Kenyiba alleges the district court erred in permitting the use of his prior Kentucky DUI
convictions for purposes of enhancement under Neb. Rev. Stat. § 60-6,197.02(1)(a)(i)(C) (Cum.
Supp. 2012). He also alleges that the sentence imposed by the district court was excessive and
constituted an abuse of discretion.
                                   STANDARD OF REVIEW
        A sentencing court’s determination concerning the constitutional validity of a prior
plea-based conviction, used for enhancement of a penalty for a subsequent conviction, will be
upheld on appeal unless the sentencing court’s determination is clearly erroneous. State v.
Mitchell, 285 Neb. 88, 825 N.W.2d 429 (2013).
        Viewing and construing the evidence most favorably to the State, an appellate court will
not set aside a finding of an earlier conviction used for sentence enhancement which is supported
by relevant and competent evidence. State v. Linn, 248 Neb. 809, 539 N.W.2d 435 (1995).
        A sentence imposed within statutory limits will not be disturbed on appeal absent an
abuse of discretion by the trial court. State v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012).


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                                          ANALYSIS
Enhancement.
        Kenyiba first asserts that the district court erred in finding that his prior Kentucky DUI
convictions were valid for enhancement. He argues that Exhibits 1, 2, and 3 fail to show with any
degree of trustworthiness the actual charges of which he was convicted. We find that Kenyiba’s
prior convictions are supported by relevant and competent evidence and that the district court
properly enhanced his conviction to a third offense.
        In a proceeding to enhance punishment because of prior convictions, the State has the
burden of proving such prior convictions by a preponderance of the evidence. State v. Dixon, 282
Neb. 274, 802 N.W.2d 866 (2011); State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
        Under Nebraska law, a DUI conviction from another state is valid for enhancement if it
was committed within the 15-year period prior to the current offense and, at the time of the prior
conviction in the other state, the offense for which the person was convicted would have been a
violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2010). See § 60-6,197.02(1)(a)(i)(C). However,
the State does not have the initial burden of showing a substantial similarity of every element of
the respective DUI laws or that the facts surrounding the prior conviction would have resulted in
a violation of Nebraska DUI laws as they existed at that time. State v. Garcia, 281 Neb. 1, 792
N.W.2d 882 (2011). Section 60-6,197.02(2) simply requires the State to present a court-certified
copy or an authenticated copy of a prior conviction in another state as prima facie evidence of
such prior conviction. See State v. Garcia, supra. The convicted person shall be given the
opportunity to review the record of his or her prior convictions, bring mitigating facts to the
attention of the court prior to sentencing, and make objections on the record regarding the
validity of such prior convictions. § 60-6,197.02(3).
        The Nebraska Supreme Court recently analyzed these statutes in Garcia and held:
                The prosecution presented prima facie evidence of [the defendant’s] prior
        convictions by presenting a certified copy of his California DUI convictions, which . . .
        the State demonstrated were counseled. The burden thus shifted to [the defendant] to
        produce evidence rebutting the statutory presumption that those documents did not reflect
        that an “offense for which the person was convicted would have been a violation of
        section 60-6,196.”
281 Neb. at 13, 792 N.W.2d at 892, quoting § 60-6,197.02(1)(a)(i)(C).
        Here, the State presented court-certified documents from Jefferson District Court in
Kentucky reflecting two separate DUI convictions in case Nos. 07-T-007094 and 07-T-022817.
The “Daily Disposition Report” shows that on March 14, 2007, Kenyiba appeared with counsel,
entered guilty pleas, and was sentenced in both cases for the offense of “Op MV Under/Influence
of Alcohol/Drugs, etc. .08 1st off.” This report lists a specific citation number for each case,
which correspond to the uniform citations contained in exhibits 2 and 3. The uniform citations
show that Kenyiba was arrested for “DUI” on January 24, 2007, and again on March 9, 2007.
The State also presented the signed “guilty plea” forms, in which Kenyiba admitted guilt in each
case for the offense of “DUI 1st No Agg.” All of these documents were court-certified and
established prima facie evidence of the convictions. See, § 60-6,197.02(2); State v. Garcia,



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supra. Kenyiba did not produce any evidence rebutting the statutory presumption that those
convictions would have been a violation of Nebraska DUI laws as they existed at the time.
        We agree that the exhibits offered by the State establish by a preponderance of the
evidence that Kenyiba was convicted of two DUI’s in Kentucky for offenses that occurred on
January 24 and March 9, 2007, and that Kenyiba was represented by counsel during all critical
stages of those proceedings. Therefore, we agree that both convictions were valid for purposes of
enhancement, and the district court did not err when it enhanced Kenyiba’s current DUI to a
third offense.
Excessive Sentence.
        Kenyiba asserts that the sentence imposed by the district court is excessive and
constitutes an abuse of discretion. He argues that the district court failed to give proper weight to
all of the facts and circumstances surrounding his life and that the sentence imposed exceeds
what is necessary for his rehabilitation and the protection of the public. We find no merit in these
arguments.
        Kenyiba was convicted of DUI, third offense, with a breath alcohol concentration of .15
or greater, which is a Class IIIA felony punishable by a minimum of 180 days in jail and a
maximum of 5 years’ imprisonment, a $10,000 fine, or both, as well as a mandatory 15-year
license revocation. Neb. Rev. Stat. §§ 28-105 and 60-6,197.03(6) (Cum. Supp. 2012). Kenyiba’s
sentence of 3 to 5 years’ imprisonment is well within the statutory limits for this offense.
        Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable legal principles in
determining the sentence to be imposed. State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010).
        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. Id. But the
appropriateness of a sentence is necessarily a subjective judgment that 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.
        The presentence report reflects that Kenyiba came to the United States from Sudan in
2003. In that short period of time, he has accumulated at least 14 criminal convictions in three
different states, not counting the numerous criminal charges on his record for which the
disposition is unknown. His prior convictions include resisting/obstructing an officer,
harassment, disorderly conduct, two DUI’s, theft by deception, attempted assault by a confined
person, assault by mutual consent, trespassing, leaving the scene of an accident, destruction of
property, disturbing the peace, failure to appear, and refusing to submit to a chemical test.
Additionally, Kenyiba was arrested less than 1 week after he committed the current offense for
another DUI with refusal to submit to a chemical test, willful reckless driving, and leaving the
scene of an accident.
        The district court reviewed the presentence report and considered the appropriate factors
in imposing Kenyiba’s sentence. The district court noted that Kenyiba had refused to recognize



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the seriousness of his alcohol problem or seek treatment, and concluded that incarceration was
necessary to protect the community from his continued drinking and driving.
        We cannot say that the district court abused its discretion by imposing a sentence within
the statutory range.
                                        CONCLUSION
        The district court did not err in using Kenyiba’s prior Kentucky DUI convictions to
enhance his conviction to a third offense. Kenyiba’s sentence was within statutory limits and was
not an abuse of discretion. Accordingly, we affirm.
                                                                                      AFFIRMED.




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