                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. SCHMIDT


  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.

                                 TYLER U. SCHMIDT, APPELLANT.


                               Filed April 4, 2017.   No. A-16-475.


       Appeal from the District Court for Lancaster County: LORI A. MARET, Judge. Affirmed.
       Joe Nigro, Lancaster County Public Defender, and Shawn Elliott for appellant.
       Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.


       MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
       MOORE, Chief Judge.
                                        INTRODUCTION
        Tyler U. Schmidt pled no contest to driving under the influence, aggravated, third offense.
Schmidt appeals his conviction and sentence in the district court for Lancaster County, alleging
that the court erred in finding a prior conviction to be valid for enhancement purposes and in
imposing an excessive sentence. Finding no merit to Schmidt’s assigned errors, we affirm.
                                        BACKGROUND
        As a result of his arrest on December 23, 2014, Schmidt was charged with driving under
the influence of alcoholic liquor or drug (DUI), aggravated, third offense, a Class IIIA felony, and
driving during revocation, a Class IV felony. As a result of a plea agreement, Schmidt pled no
contest to the aggravated DUI charge and the revocation charge was dismissed.
        At the enhancement hearing, the State presented certified copies of two prior DUI
convictions of Schmidt in the county court for Lancaster County. Exhibit 1 established a prior



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conviction for DUI that occurred in 2011, and Schmidt did not take issue with this conviction for
enhancement purposes. With regard to exhibit 2, a 2006 DUI conviction, defense counsel did not
object to its admissibility but asserted that it was not a constitutionally valid prior conviction for
purposes of enhancement. Specifically, counsel argued that while there was a waiver of counsel
by Schmidt at the time of the entry of the plea in that case, the record did not reflect waiver of
counsel at the time of the sentencing hearing. The district court found both exhibit 1 and exhibit 2
to be valid and proper copies of prior convictions to support enhancement of the DUI to a
Class IIIA felony. The court subsequently sentenced Schmidt to 2 to 4 years’ imprisonment;
imposed a fine of $1,000; and revoked his license for 15 years, with interlock device privileges
available after 2 years. Schmidt appeals.
                                   ASSIGNMENTS OF ERROR
        Schmidt asserts that the district court (1) erred in enhancing his conviction to a third offense
and (2) imposed an excessive sentence.
                                     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).
       An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Castaneda, 295 Neb. 547, 889 N.W.2d 87 (2017).
                                             ANALYSIS
Enhancement.
         Schmidt asserts that the district court erred in enhancing his conviction for DUI to a third
offense due to the improper reliance on a 2006 prior conviction (exhibit 2), which did not establish
that he had been advised of his right to counsel at the time of sentencing. Exhibit 2 shows that
there was a valid waiver of counsel at the combined arraignment and plea hearing, at which
Schmidt pled guilty. However, the record does not contain an additional waiver of counsel at the
time of sentencing; not does it contain anything showing the prior waiver had been revoked.
         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. Bol, 288
Neb. 144, 846 N.W.2d 241 (2014). To prove the constitutional validity of a prior conviction for
enhancement purposes, the State must prove that the prior conviction was not obtained in violation
of the defendant’s Sixth Amendment right to counsel. See State v. Scheffert, 279 Neb. 479, 778
N.W.2d 733 (2010). The State is required to show that the defendant had counsel, or validly waived
counsel, at each “critical stage” of the prior conviction. Id. In Scheffert, the Court found
enhancement to be appropriate as the defendant was represented by counsel at the critical stages
that followed his arraignment--the plea hearing and the sentencing. Id.
         The State points to the earlier case of State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974),
in which the record of a previous conviction showed a valid waiver of counsel at the plea hearing,



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at which the defendant pled guilty, but it did not contain anything regarding the right to counsel at
sentencing. In affirming the enhancement of the defendant’s conviction under the habitual criminal
statutes, the Nebraska Supreme Court noted that sentencing is a “critical stage” of criminal
proceedings at which an accused is entitled to be represented by counsel. The Court noted
precedent from federal courts, holding that
                [U]nder the Sixth Amendment to the United States Constitution, if a waiver of the
        right to counsel has been properly made at the arraignment at which a plea of guilty was
        entered, the trial court is not required at the subsequent sentencing proceeding to again
        apprise the defendant of his right to counsel, so long as nothing has intervened between the
        arraignment and sentencing that should cause the waiver at the arraignment to be
        ineffective for the purposes of the sentencing proceeding.

192 Neb. at 59; 218 N.W.2d at 890-91; citing Davis v. United States 226 F.2d 834 (8th Cir., 1955);
Panagos v. United States, 324 F.2d 764 (10th Cir., 1963). See, also, State v. Tiff, 199 Neb. 519,
260 N.W.2d 296 (1977). Cf. State v. Dyke, 231 Neb. 621, 437 N.W.2d 164 (1989) (once defendant
has been informed of right to retained or appointed counsel, there is no requirement that court
advise defendant, on each subsequent court appearance, of same right).
       In the case before us, exhibit 2 clearly shows a valid waiver of counsel at the combined
arraignment and plea hearing. The record does not contain any intervening action during the few
weeks between the plea hearing and sentencing that would cause the prior waiver to be ineffective.
Thus, the district court did not err in finding exhibit 2 to be a valid prior conviction for purposes
of enhancement. This assignment of error is without merit.
Excessive Sentence.
        Schmidt was sentenced to 2 to 4 years’ incarceration, a fine of $1,000, and license
revocation for 15 years. This sentence was within the statutory range in effect at the time of this
offense. See, Neb. Rev. Stat. § 60-6,197.03(6) (Cum. Supp. 2014); Neb. Rev. Stat. § 28-105 (Cum.
Supp. 2014). Nevertheless, Schmidt argues that his sentence was excessive. Schmidt first argues
that he should have been sentenced to a misdemeanor because the district court erroneously
enhanced his conviction, an argument that we have already rejected. Additionally, Schmidt points
to his limited criminal history, his remorse for his actions, his engagement in inpatient and
outpatient treatment, and his motivation to remain sober. Schmidt asserts that a probation order
would have permitted him to continue in treatment and to work and reestablish himself in the
community.
        When imposing a sentence, a sentencing judge should consider the following factors
related to the defendant: (1) age, (2) mentality, (3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law-abiding conduct, (6) motivation for the
offense, (7) nature of the offense, and (8) amount of violence involved in the commission of the
crime. State v. Castaneda, 295 Neb. 547, 889 N.W.2d 87 (2017). The appropriateness of a sentence
is necessarily a subjective judgment and includes the sentencing judge’s observations of the
defendant’s demeanor and attitude and all of the facts and circumstances surrounding the
defendant’s life. State v. Nollen, 296 Neb. 94, ___ N.W.2d ___ (2017).



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         The record shows that the sentencing hearing was continued twice as a result a of Schmidt’s
residential and outpatient treatment following a relapse in maintaining his sobriety. Schmidt was
31 years old at the time of sentencing and his criminal history shows two prior DUI convictions,
the first when he was 21 or 22 years old. The district court, after reviewing the PSI and hearing
comments from Schmidt and his counsel, noted that this incident resulted in an accident in which
Schmidt caused property damage and physical injury to himself, and his blood alcohol content was
.389. The sentencing judge indicated that she had struggled with the kind of sentence to impose,
recognizing Schmidt’s need for, and efforts toward, treatment. However, the court ultimately
focused on the safety of the public and Schmidt’s history in finding that imprisonment was
necessary.
         Based upon this record, we can find no abuse of discretion in the sentence imposed. This
assignment of error is without merit.
                                         CONCLUSION
       The district court did not err in enhancing Schmidt’s conviction or in imposing sentence.
                                                                                      AFFIRMED.




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