                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. HARRIS


  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.

                                 RUSSELL J. HARRIS, APPELLANT.


                               Filed June 4, 2019.   No. A-18-798.


       Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge. Affirmed.
       Joe Nigro, Lancaster County Public Defender, and Nathan J. Sohriakoff for appellant.
       Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.


       RIEDMANN, BISHOP, and WELCH, Judges.
       WELCH, Judge.
                                       INTRODUCTION
       Russell J. Harris appeals the decision of the Lancaster County District Court resentencing
him for possession of a deadly weapon by a prohibited person. He contends that the court imposed
an excessive sentence at resentencing for his conviction of possession of a deadly weapon by a
prohibited person and that the sentencing judge should have recused himself because the
sentencing judge had previously served as a prosecutor in criminal cases in which Harris was the
defendant. Finding that both assignments of error raised by Harris fail, we affirm.
                                   STATEMENT OF FACTS
       In January 2017, two officers followed Harris’ car based on a tip from a confidential
informant. Harris and a passenger stopped and voluntarily talked with police. The police asked the
passenger if there was anything illegal in the car and the passenger stated that Harris had a large
amount of drugs in the car. The police searched the car and found methamphetamine and a knife



                                               -1-
with a 4½-inch blade. Harris was charged with possession with intent to deliver methamphetamine
and possession of a deadly weapon by a prohibited person. Pursuant to a plea agreement, Harris
pled no contest to the charged offenses in this case and to crimes in other separate cases in
exchange for the State not charging him as a habitual criminal.
        In a previous appeal, Harris appealed the sentences imposed on each of his convictions
claiming that the sentences imposed were excessive and specifically argued that the sentence of 3
to 5 years’ imprisonment imposed for possession of a deadly weapon by a prohibited person was
outside relevant statutory limits. See State v. Harris, Nos. A-17-764 through A-17-768, 2018 WL
2494103 (Neb. App. May 24, 2018) (not selected for posting to court website). Upon finding that
the statutory maximum was 4 years’ imprisonment, this court vacated Harris’ sentence for
possession of a deadly weapon and remanded for resentencing. See, Neb. Rev. Stat. § 28-105
(Reissue 2016); State v. Harris, supra. We affirmed Harris’ other sentences. State v. Harris, supra.
        At the time of the preparation of the presentence investigation report, Harris was 57 years
old, married, and had one dependent. His criminal history included twelve counts of theft, seven
counts of possession of a controlled substance, robbery, burglary, and numerous other offenses.
He has violated both probation and parole and has been convicted of escape. The level of
service/case management inventory assessed him as a very high risk to reoffend.
        At the resentencing hearing, Harris’ counsel began by making an oral motion for the judge
to recuse himself. Defense counsel stated that Harris told him that, in 1981, the sentencing judge,
who at that time had been a prosecutor, had prosecuted Harris for robbery and burglary. Defense
counsel then requested that the judge recuse himself and that a judge who had not formerly
prosecuted Harris sentence him. The court denied the motion and sentenced Harris to two to four
years’ imprisonment. Harris has timely appealed and is represented on appeal by the same counsel
that represented him at resentencing.
                                  ASSIGNMENTS OF ERROR
        Harris assigns that the court abused its discretion in imposing an excessive sentence and
that the sentencing judge should have recused himself.
                                   STANDARD OF REVIEW
        A motion requesting a judge to recuse himself or herself on the ground of bias or prejudice
is addressed to the discretion of the judge, and an order overruling such a motion will be affirmed
on appeal unless the record establishes bias or prejudice as a matter of law. McCullough v.
McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018).
        An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Steele, 300 Neb. 617, 915 N.W.2d 560 (2018). 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. Id.




                                               -2-
                                             ANALYSIS
                                              RECUSAL
        Harris claims that the trial judge erred by refusing to recuse himself due to an alleged
conflict of interest. Specifically, Harris claims the judge should have recused himself because he
allegedly prosecuted Harris 37 years earlier.
        A trial judge should recuse himself or herself when a litigant demonstrates that a reasonable
person who knew the circumstances of the case would question the judge’s impartiality under an
objective standard of reasonableness, even though no actual bias or prejudice was shown. Huber
v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010). Further, Harris directs this court to Neb. Rev.
Stat. § 24-739 (Reissue 2016), which provides that “[a] judge shall be disqualified from acting as
such (1) [i]n any case in which . . . (d) he or she has been attorney for either party in the action or
proceeding.”
        However, it is also well established that “[a] judge is not disqualified merely because he at
some earlier time prosecuted the criminal defendant appearing before him.” State v. Reddick, 230
Neb. 218, 223, 430 N.W.2d 542, 546 (1988) (allegation that judge previously prosecuted defendant
in another case while serving as county attorney insufficient to show bias and prejudice). See, also,
State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309 (1987); State v. Burnside, 185 Neb. 234, 175
N.W.2d 1 (1970). Harris’ sole basis for his motion for recusal was the judge’s prior prosecution of
Harris some 37 years ago while serving as county attorney. Having reviewed the record, we find
the facts insufficient to establish bias or prejudice as a matter of law. Accordingly the district court
did not abuse its discretion in denying Harris’ motion. This assignment of error fails.
                                        EXCESSIVE SENTENCE
          Harris also contends that his sentence of 2 to 4 years’ imprisonment is excessive. He was
convicted of possession of a deadly weapon by a prohibited person, a class III felony, which carries
a sentence of up to 4 years’ imprisonment. See, § 28-105 (felonies; classification of penalties);
Neb. Rev. Stat. § 28-1206 (Reissue 2016) (possession of deadly weapon by prohibited person).
Harris’ sentence was within the statutory limits.
          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. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018); State v. Leahy,
301 Neb. 228, 917 N.W.2d 895 (2018). In determining a sentence to be imposed, relevant factors
customarily considered and applied are 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
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 observation of the
defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s
life. Id.




                                                 -3-
        Contrary to Harris’ claims, there is no evidence that the court failed to take into account
any of the relevant factors. The court stated that it could not ignore the circumstances of the case
or Harris’ criminal history. At the same time Harris was found in possession of the knife, he was
in possession of a sufficient amount of methamphetamine to be charged with possession of
methamphetamine with the intent to deliver. Further, Harris has an extensive criminal history, he
is a very high risk to reoffend, and he received a substantial benefit from his plea agreement in
which the State agreed not to charge him as a habitual criminal.
        Considering the facts that Harris’ sentence was within the statutory sentencing range, his
extensive criminal history, the circumstances of the offense, his very high risk to reoffend, and the
substantial benefit received from his plea agreement wherein the State agreed not to charge him as
a habitual criminal, the sentence imposed was not an abuse of discretion.
                                          CONCLUSION
        In sum, we find that the district court did not abuse its discretion in denying Harris’ motion
to recuse or in the sentence imposed. Consequently, Harris’ conviction and sentence are affirmed.
                                                                                           AFFIRMED.




                                                -4-
