                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. FUENTES


  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.

                                 RYAN S. FUENTES, APPELLANT.


                             Filed June 16, 2020.    No. A-19-1142.


       Appeal from the District Court for Merrick County: RACHEL A. DAUGHERTY, Judge.
Affirmed.
       Stephen T. Knudsen, of Grafton Law Office, P.C., L.L.O., for appellant.
       Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.


       PIRTLE, BISHOP, and ARTERBURN, Judges.
       PIRTLE, Judge.
                                       INTRODUCTION
         Ryan S. Fuentes pled no contest to one count of resisting arrest, second offense, in the
district court for Merrick County. Fuentes was originally sentenced to a term of probation. After
later admitting to violating two conditions of his probation, Fuentes was sentenced on the original
offense to a term of 3 years’ imprisonment, followed by 12 months of postrelease supervision.
Fuentes appeals, arguing that the district court erred by allowing the State to proceed on an
additional alleged probation violation that had become moot by his agreement to admit to the other
violations. He also argues that the sentence was excessive. For the reasons that follow, we affirm.
                                        BACKGROUND
        On July 26, 2016, Fuentes was charged with one count of resisting arrest, second offense.
At his initial arraignment, Fuentes pled not guilty. On October 31, 2016, Fuentes changed his plea



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to no contest and was convicted of resisting arrest, second offense, a Class IIIA felony. Fuentes
was sentenced to a period of probation.
        In April 2019, the State filed an amended motion to revoke probation. The matter came
before the district court for an evidentiary hearing on September 23, 2019. At the hearing, Fuentes
admitted to violating conditions “4” and “5” of his probation. Condition No. 4 required that
Fuentes report to his probation officer as directed. Condition No. 5 required Fuentes to permit his
probation officer to visit him in a reasonable manner. The district court took judicial notice of the
probation violation addendum and found that there was a factual basis showing that Fuentes had
in fact violated the terms of his probation. After finding that Fuentes violated conditions 4 and 5
of his probation, the district court permitted the State to proceed with its case on condition No. 1.
        The State called Shilia Pascoe as its only witness. Pascoe testified that on June 11, 2018,
the Grand Island Police Department made contact with her while she was at her sister’s home.
Pascoe testified that she could not recall the details of what had happened, but remembered that
she got into an argument with Fuentes and “got hit.” She recalled having a “severe panic attack
and anxiety attack” and then the police arriving. She testified that Fuentes “punched” her in the
face and that the incident was “traumatizing” to her.
        On cross-examination, Pascoe acknowledged that she wrote a letter to the Hall County
Attorney’s office regarding the incident. Pascoe testified that the letter indicated that she had an
anxiety attack and “overreacted” to the incident. She testified that Fuentes did not strangle her and
that she requested that the charges against him be dropped. Pascoe testified that her anxiety attacks
cause her to “blackout” and that she cannot say for certain what happened during the incident with
Fuentes.
        After Pascoe’s testimony, the district court found that the State had shown that Fuentes
struck Pascoe in the face, in violation of condition No. 1 of his probation. A presentence
investigation was ordered, and sentencing was set for November 4, 2019. Fuentes’ trial counsel
moved for furlough, in order to enroll Fuentes in a 30-day treatment program prior to his
sentencing hearing. The motion was denied.
        A sentencing hearing took place on November 4, 2019, and the district court sentenced
Fuentes to 3 years’ imprisonment, followed by 12 months of postrelease supervision. Fuentes was
given 297 days’ credit for time served.
                                  ASSIGNMENTS OF ERROR
        Fuentes assigns, restated, that the district court abused its discretion by (1) allowing the
State to proceed on an additional alleged probation violation that had become moot and (2)
sentencing Fuentes to an excessive term of imprisonment.
                                    STANDARD OF REVIEW
       The revocation of probation is a matter entrusted to the discretion of a trial court. State v.
Johnson, 287 Neb. 190, 842 N.W.2d 63 (2014).
       An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). An




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abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.
                                             ANALYSIS
                                              MOOTNESS
         Fuentes first argues that the district court abused its discretion by allowing the State to
proceed with its case on the alleged violation of condition No. 1 of his probation after he had
admitted to violations of condition Nos. 4 and 5. Fuentes argues that his admissions made the
violation of condition No. 1 a moot issue. We disagree.
         A case becomes moot when the issues initially presented in litigation cease to exist or the
litigants lack a legally cognizable interest in the litigation’s outcome. State v. Johnson, supra.
Unless a probationer admits to a violation, the fact that a condition of probation has been violated
must be proved by clear and convincing evidence. State v. Heaton, 225 Neb. 702, 407 N.W.2d 780
(1987). Fuentes did not admit to a violation of condition No. 1 of his probation, and the State did
not agree to dismiss the allegation. Therefore, the State still had a legally cognizable interest in the
litigation’s outcome.
         The Nebraska Supreme Court has recognized that “[p]robation revocation proceedings are
not criminal prosecutions[.]” State v. Johnson, 287 Neb. at 199, 842 N.W.2d at 71. We find no
merit in Fuentes’ contention that allowing the State to proceed with its case on the alleged violation
of condition No. 1 turned the probation revocation hearing into a “quasi-trial upon which Fuentes
was essentially convicted of a new offense.” Brief for appellant at 7. While the Supreme Court has
held that “a violation of a single condition of probation can support revocation[,]” it has not held
that a finding of one violation renders all other alleged violations moot. State v. Clark, 197 Neb.
42, 47, 246 N.W.2d 657, 660 (1976) (emphasis supplied).
         A probation revocation hearing is considered a continuation of the original prosecution for
which probation was imposed--in which the purpose is to determine whether a defendant has
breached a condition of his or her existing probation, not to convict that individual of a new
offense. State v. Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020). Accordingly, jail time after
revocation of probation constitutes continuing punishment for the crime for which probation was
originally imposed. See id.
         The trial court’s initial decision to place a defendant on probation reflects a determination
that the State’s penological interests did not require imprisonment. State v. Heaton, supra, (citing
Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983)). However, “[a]
probationer’s failure to make reasonable efforts to repay his debt to society may indicate that this
original determination needs reevaluation, and imprisonment may now be required to satisfy the
State’s interests.” Bearden v. Georgia, 461 U.S. at 670. In this case, Fuentes was alleged to have
violated multiple conditions of his probation. It is clear to us that the State retained an interest in
seeing the appropriate resolution to Fuentes’ probation revocation up until the point of sentencing.
Therefore, the issue of whether Fuentes violated condition No. 1 of his probation did not become
moot once it was determined that he violated condition Nos. 4 and 5, and it was not an abuse of
discretion for the district court to allow the State to proceed with its case as to condition No. 1.




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                                       EXCESSIVE SENTENCE
        Fuentes next argues that the district court abused its discretion by sentencing him to an
excessive term of imprisonment. We find that the district court did not abuse its discretion in
sentencing Fuentes.
        Under Neb. Rev. Stat. § 29-2268 (Reissue 2016), if a probationer is found to have violated
a condition of his or her probation, a court “may revoke the probation and impose on the offender
such new sentence as might have been imposed originally for the crime of which he or she was
convicted.” Under Neb. Rev. Stat. § 28-904(3) (Reissue 2016), resisting arrest, second offense, is
a Class IIIA felony. A Class IIIA felony, under Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2019), is
punishable by up to 3 years’ imprisonment and 18 months’ postrelease supervision, a $10,000 fine,
or both, with no minimum sentence. If imprisonment is imposed, however, it must be followed by
a minimum of 9 months’ postrelease supervision. Id. The district court sentenced Fuentes to 3
years’ imprisonment, followed by 12 months’ postrelease supervision. Fuentes was granted 297
days’ credit for time served.
        Fuentes’ 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 sentences to be imposed. State v. Smith, 302
Neb. 154, 922 N.W.2d 444 (2019). 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, (6) motivation for the offense, (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.
        Fuentes first argues that his sentence was excessive because his “mentality did not warrant
such a sentence.” Brief for appellant at 8. We disagree. As previously mentioned, the
“appropriateness of a sentence is necessarily a subjective judgment.” State v. Smith, 302 Neb. at
186, 922 N.W.2d at 466. It is not the function of an appellate court to conduct a de novo review of
the record to determine whether a sentence is appropriate. State v. Gibson, 302 Neb. 833, 925
N.W.2d 678 (2019). In this case, the district court heard comments from both the State and
Fuentes’ trial counsel regarding what they believed to be the appropriate sentence. Additionally,
Fuentes was given the opportunity to provide allocution, where he noted:
        I apologize for not taking advantage of probation the first time. I know I should have done
        my classes. I have an addiction that took the better of me. I have mental problems; I wasn’t
        taking my medications like I should of. I’m asking for a second chance on probation, finish
        probation. And second chance on - I apologize for not taking probation seriously.

       After hearing from Fuentes, the district court noted that it had considered the relevant
sentencing factors, as well as the factors set forth in Neb. Rev. Stat. § 29-2260 (Reissue 2016), for




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consideration when the court is deciding whether to impose a sentence of imprisonment.
Specifically, the district court noted:
                I’ve also considered the factors as set forth in Section 29-2260, specifically that you
       have failed to comply with terms of this probation, and in fact you really absconded for the
       majority of the probation period. So even when they reached out to you -- you know, part
       of life is just showing up, Mr. Fuentes, just making a modicum of effort. And until you
       were arrested, then you make a lot of effort. But when you are not in custody, your effort
       is really minimal.
                There’s a substantial risk that during a period of probation that you would continue
       to engage in additional criminal conduct; that I do believe that you are in need of treatment
       that can best be provided most effectively by the Department of Corrections, and I do find
       that if not then there is a risk to the public.

        The district court also had the opportunity to review the presentence investigation report
(PSI), which shows that Fuentes has a criminal history including convictions for drug and alcohol
related offenses, resisting arrest, assault, failure to appear, etc. The PSI also shows that Fuentes
scored a 35 on the Level of Service/Case Management Inventory (LS/CMI), which is used “to
determine the degree of risk the offender presents to the community” and the risk to recidivate. A
score of 35 places Fuentes at a “very high risk” to the community and to recidivate. Additionally,
Fuentes scored within the “high risk” or “very high risk” range in seven of the eight categories
assessed in the LS/CMI to determine risk factors for recidivism.
        While Fuentes argues that the district court “could have placed Fuentes on probation or
considered a significantly shorter term of incarceration[,]” we cannot say the sentence imposed
constitutes an abuse of discretion. The record does not indicate that the district court considered
any improper factors, and we find that it did not abuse its discretion by imposing a sentence of 3
years’ imprisonment followed by 12 months’ postrelease supervision.
                                          CONCLUSION
       We conclude that the district court did not abuse its discretion by allowing the State to
proceed with its case regarding Fuentes’ violation of condition No. 1 of his probation. We also
find that the sentence imposed by the district court was not excessive. Accordingly, Fuentes’
conviction and sentence is affirmed.
                                                                                     AFFIRMED.




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