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10/05/2018 08:13 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          300 Nebraska R eports
                                                  STATE v. STEELE
                                                 Cite as 300 Neb. 617




                                        State of Nebraska, appellee, v.
                                         M arkel D. Steele, appellant.
                                                    ___ N.W.2d ___

                                          Filed July 27, 2018.    No. S-17-951.

                1.	 Sentences: Appeal and Error. An appellate court will not disturb a sen-
                     tence imposed within the statutory limits absent an abuse of discretion
                     by the trial court.
                2.	 Judgments: Words and Phrases. An abuse of discretion occurs when a
                     trial court’s decision is based upon reasons that are untenable or unrea-
                     sonable or if its action is clearly against justice or conscience, reason,
                     and evidence.
                3.	 Sentences: Appeal and Error. Where a sentence imposed within the
                     statutory limits is alleged on appeal to be excessive, the appellate court
                     must determine whether a sentencing court abused its discretion in con-
                     sidering and applying the relevant factors as well as any applicable legal
                     principles in determining the sentence to be imposed.
                4.	 Sentences. In determining a sentence to be imposed, relevant factors
                     customarily considered and applied are the defendant’s (1) age, (2) men-
                     tality, (3) education and experience, (4) social and cultural background,
                     (5) past criminal record or record of law-abiding conduct, and (6) moti-
                     vation for the offense, as well as (7) the nature of the offense and (8) the
                     amount of violence involved in the commission of the crime.
                 5.	 ____. The appropriateness of a sentence is necessarily a subjective judg-
                     ment 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.

                 Appeal from the District Court for Lancaster County: John
               A. Colborn, Judge. Affirmed.
                 Jeffrey Pickens and Kelly S. Breen, of Nebraska Commission
               on Public Advocacy, for appellant.
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          Nebraska Supreme Court A dvance Sheets
                  300 Nebraska R eports
                        STATE v. STEELE
                       Cite as 300 Neb. 617

  Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Dobrovolny, District Judge.
   Papik, J.
   Markel D. Steele pled guilty to one count of second degree
murder and one count of first degree assault for his involve-
ment in an armed robbery and shooting that left one victim
dead and another paralyzed. Steele, who was 17 years old at
the time of the offenses, was sentenced to 60 years’ to life
imprisonment for second degree murder and to 40 to 50 years’
imprisonment for first degree assault, with the sentences to
run consecutively. Because we find no merit to the contentions
Steele raises on appeal regarding his sentences, we affirm.
                        BACKGROUND
Factual Basis for Charges.
   The following details regarding the incident underlying
Steele’s convictions are summarized from the factual basis
recited by the State at Steele’s plea hearing.
   On April 18, 2016, at approximately 3 p.m., law enforce-
ment responded to a report of gunshots at a residence near 19th
and Euclid Streets in Lincoln, Nebraska. Dispatchers relayed
to law enforcement that approximately eight gunshots were
heard in the residence and that “two black males” were seen
leaving the residence around the time of the shooting. One was
reported as wearing black jeans and a gray hoodie with the let-
ters “USA” on the back, and the other was wearing jeans and
a black “puffy” coat.
   As officers first arrived in the area, they located a black
male wearing black jeans and a gray hoodie with the letters
“USA” walking westbound a block or two from the reported
location of the shooting. This individual, later identified as
Xheronte Lewis, was detained by police and admitted to being
at the residence when shots were fired.
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           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                         STATE v. STEELE
                        Cite as 300 Neb. 617

   Inside the residence, officers located two victims, identified
as Christopher Coleman and Jerry Griffis, both of whom had
sustained gunshot wounds. Officers also found a dog that was
suffering from gunshot wounds. Three small children were also
present in the residence.
   Coleman, who was found just inside the front doorway in
the living room, was pronounced dead at the scene. Griffis,
who was found in the kitchen, was transported to a nearby
hospital where he received extensive treatment for a gunshot
wound that passed through his spine. The dog was taken to an
emergency veterinary clinic where it died from its wounds.
   An autopsy on Coleman later revealed that the cause of his
death was a gunshot wound to the neck. Griffis was hospital-
ized for approximately 11⁄2 months as a result of his injuries.
He was diagnosed with multiple gunshot wounds, a vertebra
fracture, paraplegia, “right and left hemopneumothorax,” bilat-
eral pulmonary contusion, and a rib fracture. He is now par-
tially paralyzed.
   Griffis gave a statement to police approximately a week
after the shooting. He stated that he had gone to Coleman’s
house on April 18, 2016, to sell him some marijuana. While
there, he heard the front door open and immediately heard two
gunshots in quick succession. He stated that he could not see
the shooter initially, but could see Coleman facing the shooter.
He then saw Coleman turn “180 degrees” and fall to the floor
and believed that Coleman was struck by one or both of the
shots fired. Griffis stated that he then observed a black male
in his early twenties wearing all black clothing holding a black
semiautomatic handgun.
   Griffis reported that the black male shot Coleman’s dog
two or three times when it appeared in the kitchen doorway.
The dog yelped and ran to its kennel toward the back of the
kitchen. Immediately after shooting the dog, the black male
pointed the gun at Griffis and fired one or two shots into his
torso. Griffis immediately fell to the ground. When he looked
up, the black male had walked a few steps toward him and
was pointing the gun at his head. Griffis put his left hand out
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           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                         STATE v. STEELE
                        Cite as 300 Neb. 617

in front of the gun in an attempt to block a shot to his head.
He heard another gunshot and felt pain on his hand and face.
Griffis stated that he “played dead” in order to avoid being
shot again.
   After the last shot, Griffis heard two male voices in the
kitchen. He “heard the male closest to him, presumably the
shooter, say, . . . Where’s it at? Find the shit . . . .” He then
heard the intruders rifling through cabinets and drawers. A
quantity of marijuana was later found to have been taken from
the residence. Using a photograph that had been posted on
Facebook, Griffis was able to identify Steele as the shooter.
   Investigators processed the crime scene and recovered seven
bullet casings from the residence. Two spent rounds were
found in the dog’s body, one round was collected from Griffis’
body, and two rounds were discovered at the residence. A
firearms analyst concluded that all of the bullets were fired
from the same gun, which was identified as a “Hi-Point JHP”
.45-caliber firearm.
   Investigators also took photographs and castings of fresh
footprints from the kitchen floor and from the mud in the
backyard of the residence, which appeared to be consistent
with Nike “Air Force” tennis shoes. A witness described Steele
as having worn Nike “Air Force or Air Max” tennis shoes at
the time of the shooting. When Steele was later arrested, he
was wearing Nike “Air Force” tennis shoes, which were seized
by police and analyzed at the Nebraska State Patrol crime lab-
oratory. The analyst found that the castings and photographs
of the footprints taken at the crime scene corresponded to the
pattern and size of Steele’s left shoe.
   Steele was arrested and interviewed by police on May 5,
2016. He denied any involvement in the robbery or homi-
cide, but admitted that he had a Facebook account and that
he used Facebook to communicate with others. Investigators
obtained a search warrant to access his Facebook records,
which showed that on April 7, Steele was in communication
with Lewis about possibly doing a narcotics-related robbery
on Euclid Street. This conversation continued over the course
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           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                         STATE v. STEELE
                        Cite as 300 Neb. 617

of 11 days while the two attempted to find a gun and a driver
for the robberies. The conversation included a screen shot of a
text message conversation in which Lewis asked another indi-
vidual to drive. That individual then asked Lewis where this
would occur, and Lewis responded, “‘Euclid.’”
   After that individual declined to participate, Steele told
Lewis that he found a driver named “T.J.,” later identified
as Terique Jackson, and that they would be over to pick him
up in a BMW, which was the vehicle Jackson was driving at
the time.
   Lewis was deposed and testified that he observed Steele
with a black .45-caliber semiautomatic handgun just before
the robbery and homicide on Euclid Street. He also testified
that Jackson was the driver who transported them to the Euclid
Street residence on April 18, 2016, and that Lewis made plans
with Steele to meet up after the robbery.
   While incarcerated at the Lancaster County jail, Steele
admitted to more than one confidential informant that he had
shot Coleman and Griffis on April 18, 2016, at the Euclid
Street residence.
   Steele was 17 years old on the date of the offenses.
Steele’s Guilty Pleas.
   Steele was initially charged with eight different felony
offenses arising out of the incident on Euclid Street: first
degree murder, first degree assault, robbery, abandonment or
cruel neglect of an animal, and four counts of the use of a
firearm to commit a felony. The parties later advised the dis-
trict court that they had reached a plea agreement. Under the
agreement, Steele would plead guilty to an amended informa-
tion which reduced his first degree murder charge to second
degree murder, retained the first degree assault charge, and
dropped the other six counts. As part of the plea agreement, the
State also agreed to dismiss various charges it had filed against
Steele in Lancaster County District Court arising out of two
different incidents and to forgo any additional charges based on
those other incidents.
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           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                         STATE v. STEELE
                        Cite as 300 Neb. 617

   Steele entered guilty pleas in accordance with the parties’
agreement. The district court accepted the pleas after conclud-
ing that there was a sufficient factual basis for the pleas and
that Steele understood the nature of the charges and made the
plea freely, voluntarily, knowingly, and intelligently.

Sentencing Hearing.
   At the sentencing hearing, the district court acknowledged
receipt of the presentence investigation report and heard argu-
ments from both parties. Then, prior to imposing sentences, the
district court stated:
      In determining the appropriate sentences, the Court con-
      siders a number of factors. I recognize that Mr. Steele
      was 17 years of age when these crimes were committed.
      Although I do not believe that the Court is required to
      do so, I have followed the requirements of Miller ver-
      sus Alabama, where the United States Supreme Court
      indicated that the court consider the juvenile’s special
      circumstances in light of the principles and purposes of
      juvenile sentencing, and I have taken into account how
      children are different and how these differences counsel
      against irrevocably sentencing a juvenile to a lifetime
      in prison.
         I have considered the defendant’s age; mentality; edu-
      cation and experience; social and educational background
      and cultural background; past criminal record or record
      of law abiding conduct; motivation for the offense; the
      nature of the offense; the amount of violence involved in
      the commission of the crime.
         And although not required to do so, I have also consid-
      ered the mitigating factors which led to the commission
      of this offense as set forth in Nebraska Revised Statute
      Section 28-105.02. I have considered the age of the
      defendant; the impetuosity of the defendant; his family
      and community environment; his ability to appreciate the
      risk and the consequences of the conduct; his intellec-
      tual capacity; and the mental health evaluation that was
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      Nebraska Supreme Court A dvance Sheets
              300 Nebraska R eports
                    STATE v. STEELE
                   Cite as 300 Neb. 617

submitted by defense counsel from the mental health pro-
fessional, including all of the statutory mitigating factors;
including information from the family, which includes
prenatal history, developmental history, medical history,
substance abuse treatment history, social history and psy-
chological history.
   The Court has also considered and cannot ignore the
senselessness of these acts of violence; the motivation for
the crime, to steal marijuana; the premeditated actions,
this crime had been planned for some time; there was
no provocation for these offenses. I’ve considered that
the defendant used a firearm to commit these crimes.
And I have considered the depravity of these crimes,
cold-blooded shooting and killing of Mr. Coleman, and
the cold-blooded shooting of Mr. Griffis, numerous
times, and leaving him for dead, and he is now perma-
nently paralyzed.
   I’ve considered that you shot and killed the dog.
Considered that fact that your intent was to leave no wit-
nesses. And I considered the fact that Mr. Coleman’s three
children were present in the home when you shot and
killed him. I’ve considered the effect that these crimes
have had on the family members of Mr. Coleman, includ-
ing his three children, who will grow up now without a
father. I’ve considered the effect that it has had on Mr.
Griffis, he’s paralyzed for life. And the effect that this has
had on his daily life, for the rest of his life.
   I considered your other acts of violence, and although
you’ve not been convicted of those other crimes, they
were in the Presentence Report, including an armed
robbery, that, again, was for marijuana, and included
the taking of a four-year-old girl from a vehicle, and
brought into an apartment where an armed robbery was
in progress.
   I do have to consider the safety of the public. You
are dangerous. Society needs to be protected from your
dangerousness.
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           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                         STATE v. STEELE
                        Cite as 300 Neb. 617

         Having regard for the nature and circumstances of
      the crimes, and the history, character and condition of
      the defendant, and all other relevant factors, including
      the age, mentality, education and experience, social and
      cultural background, past criminal record, motivation
      for the offense, nature of the offense, amount of vio-
      lence involved, impetuosity of the defendant, family and
      community environment, your ability to appreciate the
      risk and consequences of your conduct, your intellectual
      capacity, and the mental health evaluation, including all
      of the factors set forth in Miller versus Alabama, Graham
      versus Florida, and all of the mitigating factors set forth
      in Section 28-105.02.
         The Court does find that imprisonment of the defend­
      ant is necessary for the protection of the public, because
      the risk is substantial that during any period of probation
      the defendant would engage in additional criminal con-
      duct, and because a lesser sentence would depreciate the
      seriousness of the defendant’s crimes and promote disre-
      spect for the law.
   The district court then pronounced its sentences. It sen-
tenced Steele to 60 years’ to life imprisonment for second
degree murder. It sentenced Steele to 40 to 50 years’ imprison-
ment for first degree assault. It ordered the sentences to run
consecutively.	 The court also advised Steele that he would be
eligible for parole in 50 years.
                 ASSIGNMENTS OF ERROR
  On appeal, Steele assigns, rephrased, that the district court
abused its discretion (1) in imposing a “de facto life sentence,”
and (2) in imposing excessive sentences.
                  STANDARD OF REVIEW
   [1,2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Russell, 299 Neb. 483, 908 N.W.2d
669 (2018). An abuse of discretion occurs when a trial court’s
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           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                         STATE v. STEELE
                        Cite as 300 Neb. 617

decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. State v. Hunt, 299 Neb. 573, 909 N.W.2d
363 (2018).

                           ANALYSIS
De Facto Life Sentence.
   In many recent appeals to this court, individuals convicted
of offenses committed while they were juveniles have chal-
lenged their sentences, arguing that the sentence imposed is
unlawful because it amounts to a “de facto life sentence” that
is not permitted under the U.S. Supreme Court’s decisions in
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed.
2d 407 (2012), or Graham v. Florida, 560 U.S. 48, 130 S. Ct.
2011, 176 L. Ed. 2d 825 (2010). See, e.g., State v. Thieszen,
ante p. 112, 912 N.W.2d 696 (2018); State v. Russell, supra;
State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017). Steele
makes such an argument here, contending that under Miller,
a “de facto life sentence” can only be imposed upon a finding
that the offender is “irreparably corrupt.” Brief for appellant
at 8.
   In Miller v. Alabama, supra, the U.S. Supreme Court held
that a sentence of mandatory life imprisonment without parole
for a juvenile violated the Eighth Amendment’s prohibition
on cruel and unusual punishment. Miller did not, however,
foreclose the possibility of a life-without-parole sentence for a
juvenile. Such a sentence may be imposed so long as the court
considers specific, individualized factors before handing down
that sentence. See State v. Russell, supra.
   Steele, like previous challengers, urges us to find that Miller
places an additional restriction on life-without-parole sen-
tences. According to Steele, life-without-parole sentences are
permitted by Miller only if the offender is found to be “irrepa-
rably corrupt.” Brief for appellant at 8. Steele contends that
because no such finding was made by the district court here,
his sentences are unlawful.
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           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                         STATE v. STEELE
                        Cite as 300 Neb. 617

   Under the sentences the district court imposed, Steele will
be eligible for parole in 50 years, or when he is 67 years old.
While some other states have found that a sentence expressed
as a term of years may constitute a de facto life sentence, we
have not done so. See State v. Russell, supra. On the other
hand, we have found that sentences that allow for a “mean-
ingful and realistic opportunity to obtain release” are not de
facto life sentences for purposes of Miller v. Alabama, supra,
or Graham v. Florida, supra. See State v. Russell, 299 Neb.
at 495, 908 N.W.2d at 677 (Miller). Accord, State v. Thieszen,
supra (Miller); State v. Smith, supra (Graham).
   In State v. Russell, supra, we found the defendant’s sen-
tence allowed him a “meaningful and realistic opportunity to
obtain release” and thus was not a de facto life sentence. That
sentence did not make the offender eligible for parole until he
was 72 years old. As Steele will be eligible for parole at age
67, our decision in Russell leaves no room for a determina-
tion that Steele received a de facto life sentence. We thus need
not decide whether Miller requires a finding that the offender
is “irreparably corrupt” for a life-without-parole sentence,
because Steele did not receive such a sentence. Steele’s first
assignment of error is meritless.

Excessive Sentences.
   Steele also argues that the district court imposed excessive
sentences. Steele does not argue that his sentences were outside
the statutory limits. Rather, he argues that the court abused its
discretion in imposing the sentences.
   [3-5] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether a 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. Russell, 299 Neb. 483, 908 N.W.2d 669
(2018). Relevant factors customarily considered and applied
are the defendant’s (1) age, (2) mentality, (3) education and
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           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                          STATE v. STEELE
                         Cite as 300 Neb. 617

experience, (4) social and cultural background, (5) past crimi-
nal 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 amount of violence involved in the commission of the
crime. Id. The appropriateness of a sentence is necessarily a
subjective judgment and includes the sentencing judge’s obser-
vation of the defendant’s demeanor and attitude and all the
facts and circumstances surrounding the defendant’s life. State
v. Thieszen, ante p. 112, 912 N.W.2d 696 (2018).
   Steele contends that the district court abused its discre-
tion in various ways, but we disagree in every respect. First,
we reject Steele’s argument that the district court abused its
discretion by not considering certain factors set forth in Neb.
Rev. Stat. § 29-2260(3) (Reissue 2016), which, he contends
should have been considered as mitigating factors. Section
29-2260(3) sets forth factors that courts are to consider when
deciding “if it is appropriate to withhold a sentence of impris-
onment and grant probation.” State v. Cerritos-Valdez, 295
Neb. 563, 569, 889 N.W.2d 605, 610 (2017). Neither the
language of § 29-2260(3) nor logic would permit us to find
that district courts are required to consider the § 29-2260(3)
factors in cases like this one, in which a probation-only sen-
tence would not even be permitted by statute. See Neb. Rev.
Stat. §§ 28-304(2) and 28-308(2) (Reissue 2016) and 28-105
(Supp. 2017).
   While the district court was not required to specifically con-
sider the factors set forth in § 29-2260(3), the district court did
state that it had considered the familiar factors set forth above,
which courts customarily consider and apply in fashioning
any sentence. In particular, after noting that it had considered
Steele’s age when he committed the offenses, the court said it
took “into account how children are different and how these
differences counsel against irrevocably sentencing a juvenile to
a lifetime in prison.” The court also stated that it had consid-
ered, among other things, Steele’s impetuosity, his family and
community environment, and a mental health evaluation that
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           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                         STATE v. STEELE
                        Cite as 300 Neb. 617

was submitted by defense counsel. But the court also stated
that it had considered the senselessness of Steele’s actions,
as well as the motivation behind them (to steal), the lack of
provocation, and the depravity that was exhibited by shooting
and killing one person and leaving another permanently para-
lyzed. We cannot say that the court abused its discretion in its
assessment of the relevant sentencing factors.
   Neither are we persuaded by Steele’s argument that the
district court relied on personal bias or prejudice in determin-
ing his sentences. Steele cites to State v. Pattno, 254 Neb.
733, 579 N.W.2d 503 (1998), and State v. Bruna, 12 Neb.
App. 798, 686 N.W.2d 590 (2004), in support of this argu-
ment. In Pattno, we vacated a sentence, concluding that the
court’s reliance on “personal religious beliefs as a basis for a
sentencing decision injects an impermissible consideration in
the sentencing process.” 254 Neb. at 742, 579 N.W.2d at 509.
In Bruna, the Nebraska Court of Appeals, citing Pattno, also
vacated a sentence on the ground that the sentencing judge
had considered his personal religious views when sentencing
the defendant.
   Unlike the defendants in Pattno and Bruna, Steele does not
point to any specific information or beliefs that he contends
the district court improperly relied upon in sentencing him.
Without any elaboration from Steele as to what particular
beliefs or information he contends improperly motivated the
district court, we have no basis to vacate his sentences on the
ground of bias.
                        CONCLUSION
   Because we find that the district court did not abuse its dis-
cretion in sentencing Steele, we affirm.
                                                     A ffirmed.
