                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. PALOMO


  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.

                                  MARTIN PALOMO, APPELLANT.


                              Filed July 25, 2017.   No. A-16-1167.


       Appeal from the District Court for Scotts Bluff County: LEO DOBROVOLNY, Judge.
Affirmed as modified.
       Bernard J. Straetker, Scotts Bluff County Public Defender, for appellant.
       Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.


       PIRTLE, BISHOP, and ARTERBURN, Judges.
       BISHOP, Judge.
       Martin Palomo pled guilty to four counts: (1) driving while under the influence of
alcohol/drug (DUI), first offense, a Class W misdemeanor; (2) willful reckless driving, a Class III
misdemeanor; (3) operating a motor vehicle to avoid arrest-felony, a Class IV felony; and (4)
obstructing a peace officer, a Class I misdemeanor. The district court for Scotts Bluff County
imposed an aggregate sentence of 3 years and 60 days’ imprisonment, 9 months’ post-release
supervision, a $400 fine, and a 6-month license revocation. Palomo argues that the district court
imposed an excessive sentence. The State contends that the sentences were not excessive, but do
involve plain error. We affirm Palomo’s sentences as modified to correct plain error.
                                        BACKGROUND
      On September 29, 2016, the State filed an information charging Palomo with seven counts:
(1) “DWI” with refusal, first offense, a Class W misdemeanor, pursuant to Neb. Rev. Stat.



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§ 60-6,196 (Reissue 2010); (2) refusal to submit to chemical test, first offense, a Class W
misdemeanor, pursuant to Neb. Rev. Stat. § 60-6,197 (Cum. Supp. 2016); (3) willful reckless
driving, a Class III misdemeanor, pursuant to Neb. Rev. Stat. § 60-6,214 (Reissue 2010); (4)
operating a motor vehicle to avoid arrest-felony, a Class IV felony, pursuant to Neb. Rev. Stat.
§ 28-905(3) (Reissue 2016); (5) leaving the scene of an accident (unattended vehicle), a Class II
misdemeanor, pursuant to Neb. Rev. Stat. § 60-696 (Reissue 2010); (6) obstructing a peace officer,
a Class I misdemeanor, pursuant to Neb. Rev. Stat. § 28-906 (Reissue 2016); and (7) no operator’s
license, a Class III misdemeanor, pursuant to Neb. Rev. Stat. § 60-484 (Cum. Supp. 2016). We
note that Palomo’s offenses occurred after August 30, 2015, the effective date of 2015 Neb. Laws,
L.B. 605, which changed the classification of certain crimes and made certain amendments to
Nebraska’s sentencing laws.
        On October 7, 2016, the State filed an amended information charging Palomo with counts
1 (now DUI, first offense), 3 (willful reckless driving), 4 (operating a motor vehicle to avoid
arrest-felony), and 6 (obstructing a peace officer); and dismissing counts 2, 5, and 7 above.
Pursuant to a plea agreement, Palomo pled guilty to counts 1, 3, 4, and 6 of the amended
information, in exchange for the State’s dismissal of counts 2, 5, and 7, and the State’s agreement
to not pursue allegations that Palomo was a habitual criminal. According to the factual basis
provided by the State,
                   On September 17, 2016, Trooper Potthast, Trooper Norrie of the Nebraska State
        Patrol . . . observed a . . . vehicle . . . fail[] to use a turn signal while changing lanes. They
        then observed the driver discard a lit cigarette from the driver’s side window. The troopers
        . . . initiated a traffic stop. . . .
                   . . . As Trooper Norrie reached the driver’s side door, the male driver them [sic]
        accelerated, fled from the traffic stop, headed southbound on 10th Street.
                   The troopers then engaged in a pursuit. During this pursuit the vehicle was noted to
        be . . . driving left of center, also, ran a red light while traveling 80 miles an hour. Troopers,
        also, observed failure to use turn signals while turning left off of 10th Street onto Morrison
        Road.
                   During that turn Mr. Palomo lost control of the vehicle, slid, and hit a building. The
        troopers then started giving verbal commands to exit his vehicle. Mr. Palomo opened the
        door, put out his hand and one leg. . . . Palomo then closed the driver’s side door and
        accelerated the vehicle again and continued eastbound on Morrison Road.
                   Troopers re-entered the pursuit and observed him. And, Mr. Palomo ran stop signs
        at the intersection of Morrison Road and 7th Street. He continued, made a left hand turn
        onto Union Pacific. They . . . watched the vehicle come to a stop in the alleyway at which
        point [Palomo] bailed from the vehicle and began running on foot.
                   As troopers engaged in a foot pursuit . . . Trooper Potthast noticed that Mr. Palomo
        was trying to climb a fence and instructed him to come down off the fence. . . . At that
        point Mr. Palomo was finally placed under arrest and transported back.
                   ....
                   . . . While talking with Mr. Palomo they observed the odor of alcoholic beverage
        coming from his person.



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               While being transported to the jail Mr. Palomo indicated -- or stated to the troopers
       that he had a lot to drink. They did not conduct a field sobriety test due to the accident;
       however, a PBT was administered, the result of .224 grams per 210 liters of Mr. Palomo’s
       breath. All of those events in Scotts Bluff County, Nebraska.

        The district court accepted Palomo’s guilty plea to counts 1, 3, 4, and 6 of the amended
information. Palomo was later sentenced as follows. For DUI, first offense (count 1): 60 days’
imprisonment, a $400 fine, and 6 months’ revocation/suspension of his driver’s license. For
operating a motor vehicle to avoid arrest (count 4): 2 years’ imprisonment with 66 days’ credit for
time served; he was also sentenced to 9 months’ post-release supervision. For obstructing a peace
officer (count 6), 1 year imprisonment. The court noted that count 3 (willful reckless driving) was
merged into count 4 (operating a motor vehicle to avoid arrest), “therefore no sentence on [c]ount
[3].” See Neb. Rev. Stat. § 28-905(3)(a)(iii). All sentences were ordered to be served
consecutively. Accordingly, Palomo received an aggregate sentence of 3 years and 60 days’
imprisonment, 9 months’ post-release supervision, a $400 fine, and a 6-month license revocation.
Palomo now appeals.
                                   ASSIGNMENT OF ERROR
       Palomo assigns as error that the district court imposed an excessive sentence.
                                    STANDARD OF REVIEW
         An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016).
         An appellate court always reserves the right to note plain error that was not complained of
at trial or on appeal. Plain error may be found on appeal when an error, plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in
damage to the integrity, reputation, and fairness of the judicial process. State v. Kantaras, 294 Neb.
960, 885 N.W.2d 558 (2016). A sentence that is contrary to the court’s statutory authority is an
appropriate matter for plain error review. Id.
                                            ANALYSIS
       Palomo asserts that the district court imposed an excessive sentence and that upon
consideration of all of the appropriate sentencing factors, a lesser sentence would have been more
appropriate. The State contends that Palomo’s sentences were not excessive, but that the sentences
do involve plain error, as discussed below.
       Factors a judge should consider in imposing a sentence include the defendant’s age,
mentality, education, experience, and social and cultural background, as well as his or her past
criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the
amount of violence involved in the commission of the crime. State v. Dixon, 286 Neb. 334, 837
N.W.2d 496 (2013).
       Palomo was 44 years old at the time of sentencing. He was divorced and had no dependents.
Palomo had a GED and had been working at a fiberglass company for two weeks at the time of his




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current offenses, and was working as a Kitchen Trustee at the Scotts Bluff County Detention
Center at the time of the presentence investigation (PSI).
        As an adult, Palomo has a lengthy criminal history dating back to the late 1980’s. He has
been convicted of shoplifting, breaking and entering, DUI-first offense, DUI-second offense,
DUI-third offense, driving under suspension (3 times), leaving the scene of an accident, joy riding
(2 times), felony theft, theft (2 times), attempted auto theft, burglary (3 times), burglary of a
habitation, second degree criminal trespass, felony forgery, felony possession of a controlled
substance (cocaine), hindering an officer, resisting arrest (4 times), interference with public duties,
evading arrest (2 times), obstructing a peace officer, felony interference with a peace officer, and
false reporting. Palomo has been incarcerated numerous times, and had been on parole in
Wyoming for two weeks at the time of his current offenses; he apparently absconded from parole
to come to Nebraska. Regarding his current convictions, Palomo was driving under the influence
of alcohol, ran his vehicle into a building, and fled from officers twice in his vehicle and once on
foot.
        As part of the PSI for his current convictions, the probation officer conducted a level of
service/case management index. Palomo was assessed in the “high” risk range to reoffend.
        At the sentencing hearing, Palomo’s counsel said that Palomo was not asking to be
considered for probation, just leniency. Palomo himself addressed the court by saying, “I guess
my record speaks for itself. And, I have been in and out of trouble all my life since I have been 17
and I rather just get out of it . . . I just want to get it all over with. I’m tired of being locked up.” In
his brief, Palomo argues that the offenses were alcohol related and there was documentation
contained in the PSI that he recognized that he had a problem with alcohol and that he tried dealing
with it prior to his current offenses. He also argues that the maximum sentences imposed upon him
were not appropriate primarily due to the fact that following the completion of his sentences he
will have to be returned to Wyoming to deal with his parole problems.
        The district court said it read the PSI and considered all of the relevant sentencing factors.
The court noted Palomo’s “extensive” criminal history, and the “fairly extensive car chase” which
involved some “very dangerous conduct.” The court found that “the circumstances of the crime do
appear likely to recur” and since Palomo was facing further incarceration, that probation was not
likely to succeed nor was it realistic. It determined that a lesser sentence than imprisonment would
depreciate the seriousness of the offense or promote disrespect for the law. The court stated that
Palomo was in need of treatment that can best be provided in a correctional setting, and the risk
was substantial that during a period of probation, Palomo would engage in additional criminal
conduct, and he could not be effectively and safely supervised in a community setting. Therefore,
the court concluded there were substantial and compelling reasons to deny probation.
        We address the sentence on each count in turn. DUI, first offense (count 1), is a Class W
misdemeanor punishable by a mandatory minimum of 7 days’ imprisonment and a $500 fine and
a maximum of 60 days’ imprisonment and a $500 fine. See, Neb. Rev. Stat. § 60-6,197.03(1)
(Cum. Supp. 2016); Neb. Rev. Stat. § 28-106 (Reissue 2016). Additionally, when probation is not
imposed, the court shall also impose a 6-month revocation of the person’s driver’s license. See
§ 60-6,197.03(1). Palomo was sentenced to 60 days’ imprisonment, a $400 fine, and 6 months’
revocation/suspension of his driver’s license. The imposition of a $400 fine, rather than the



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mandatory $500 fine, was contrary to the court’s statutory authority under § 28-106(1) and
constitutes plain error. Kantaras, supra (sentence contrary to court’s statutory authority
appropriate matter for plain error review). We modify the court’s sentence to correct the plain error
and impose the mandatory $500 fine. See State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015)
(affirming sentences as modified to correct plain error).
        Operating a motor vehicle to avoid arrest (count 4) is a Class IV felony when, as here, it
involves willful reckless operation of a vehicle. See § 28-905(3)(a)(iii). A Class IV felony is
punishable by up to 2 years’ imprisonment and 12 months’ post-release supervision, a $10,000
fine, or both; if imprisonment is imposed, there is a minimum sentence of 9 months’ post-release
supervision. See Neb. Rev. Stat. § 28-105 (Reissue 2016). Because Palomo’s conviction for
operating a motor vehicle to avoid arrest involved willful reckless operation of a vehicle, the
sentencing court was also required to order a 2-year license revocation, which shall be
administered upon sentencing, upon final judgment or any appeal or review, or upon the date that
any probation is revoked. See § 28-905(3)(b). Palomo was sentenced to 2 years’ imprisonment and
9 months’ post-release supervision. The court’s failure to order a 2-year license revocation was
contrary to the court’s statutory authority and constitutes plain error. Kantaras, supra. We modify
the court’s sentence to correct the plain error and order a 2-year license revocation in accordance
with § 28-905(3)(b).
        Obstructing a peace officer (count 6) is a Class I misdemeanor punishable by up to one
year in prison, a $1,000 fine, or both. See, § 28-906; § 28-106. Palomo was sentenced to
imprisonment for 1 year; this sentence was within the statutory limits.
        Having considered the relevant factors in this case, we find that Palomo’s sentences were
not excessive, but did involve plain error; we have modified the sentences accordingly.
                                          CONCLUSION
       We affirm Palomo’s sentences as modified to correct plain error in counts 1 and 4. The
sentencing order shall be modified to state that Palomo is ordered to pay a $500 fine in count 1
(DUI, first offense), and shall have his driver’s license revoked for 2 years in count 4 (operating a
motor vehicle to avoid arrest).
                                                                            AFFIRMED AS MODIFIED.




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