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03/22/2019 01:08 PM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          301 Nebraska R eports
                                                  STATE v. RALIOS
                                                 Cite as 301 Neb. 1027




                                        State of Nebraska, appellee, v.
                                          Gabriel R alios, appellant.
                                                    ___ N.W.2d ___

                                         Filed January 4, 2019.    No. S-18-126.

                1.	 Statutes: Appeal and Error. Statutory interpretation is a question of
                    law that an appellate court resolves independently of the trial court.
                2.	 Sentences: Appeal and Error. Whether an appellate court is reviewing
                    a sentence for its leniency or its excessiveness, a sentence imposed by
                    a district court that is within the statutorily prescribed limits will not
                    be disturbed on appeal unless there appears to be an abuse of the trial
                    court’s discretion.
                3.	 Judges: Words and Phrases. A judicial abuse of discretion exists
                    only when the reasons or rulings of a trial judge are clearly untenable,
                    unfairly depriving a litigant of a substantial right and denying a just
                    result in matters submitted for disposition.
                4.	 Statutes: Legislature: Intent. The fundamental objective of statutory
                    interpretation is to ascertain and carry out the Legislature’s intent.
                5.	 Criminal Law: Statutes: Legislature: Intent. In reading a penal stat-
                    ute, a court must determine and give effect to the purpose and intent of
                    the Legislature as ascertained from the entire language of the statute
                    considered in its plain, ordinary, and popular sense.
                6.	 Licenses and Permits: Revocation: Proof. Proof of reinstatement of a
                    suspended operator’s license under Neb. Rev. Stat. § 60-4,108(2) (Supp.
                    2017) requires that a driver with a previously suspended license show
                    that his or her license is no longer suspended and that his or her license
                    validly and effectively allows the holder to operate a motor vehicle.
                7.	 Sentences: Appeal and Error. When a trial court’s sentence is within
                    the statutory guidelines, the sentence will only be disturbed by an appel-
                    late court when an abuse of discretion is shown.
                8.	 Sentences. When imposing a sentence, a sentencing judge should con-
                    sider the defendant’s (1) age, (2) mentality, (3) education and experi-
                    ence, (4) social and cultural background, (5) past criminal record or
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              Nebraska Supreme Court A dvance Sheets
                      301 Nebraska R eports
                              STATE v. RALIOS
                             Cite as 301 Neb. 1027

      record of law-abiding conduct, and (6) motivation for the offense, as
      well as (7) the nature of the offense, and (8) the violence involved in the
      commission of the crime.
  9.	 ____. 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 Thurston County, John
E. Samson, Judge, on appeal thereto from the County Court
for Thurston County, Douglas L. Luebe, Judge. Judgment of
District Court affirmed.

  Erika Y. Buenrostro, of Castrejon & Buenrostro, L.L.C., for
appellant.

   Douglas J. Peterson, Attorney General, Nathan A. Liss,
Derek Bral, Senior Certified Law Student, and, on brief, Sarah
E. Marfisi.

  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.

   Freudenberg, J.
                      NATURE OF CASE
   Pursuant to a plea agreement with the State, Gabriel Ralios
pled guilty to operating a motor vehicle during a time of sus-
pension, a Class III misdemeanor, and speeding. On November
2, 2017, the county court accepted Ralios’ pleas and, after
hearing argument on sentencing, the court sentenced him to 75
days in jail pursuant to Neb. Rev. Stat. § 60-4,108(2) (Supp.
2017). Ralios appealed his sentence to the district court sitting
as an intermediate court of appeal, assigning that the county
court erred in sentencing Ralios to 75 days in jail instead of a
fine of $100 under § 60-4,108(2). The district court affirmed
the county court’s sentence. The central issue on appeal is
whether Ralios showed “proof of reinstatement of his . . . sus-
pended operator’s license” under § 60-4,108(2).
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                         STATE v. RALIOS
                        Cite as 301 Neb. 1027

                        BACKGROUND
   On July 4, 2017, a Thurston County deputy sheriff clocked
Ralios’ car traveling over 80 m.p.h. in a 60-m.p.h. zone. Upon
stopping the vehicle, the deputy determined Ralios’ license
was suspended in the State of Missouri. He was charged with
speeding and with operating a motor vehicle during a time of
suspension.
   On November 2, 2017, Ralios entered into a plea agreement.
The State agreed to stand silent at sentencing in exchange for
Ralios’ pleas on both counts. The court accepted Ralios’ pleas
and proceeded immediately to sentencing.
   During the sentencing hearing, Ralios presented a letter from
the Missouri Driver License Bureau stating that Ralios was “not
currently suspended or revoked in the state of Missouri” as of
October 3, 2017. He argued that this letter was sufficient to
establish that his license was reinstated and that therefore, the
maximum punishment authorized by statute was a $100 fine
under § 60-4,108(2). Ralios conceded, however, that he was
not able to drive legally in Missouri at the time of sentencing.
   Section 60-4,108(2) states in relevant part:
     [A]ny person so offending shall be guilty of a Class III
     misdemeanor, and the court may, as a part of the judgment
     of conviction, order such person not to operate any motor
     vehicle for any purpose for a period of one year from the
     date ordered by the court, except that if the person at the
     time of sentencing shows proof of reinstatement of his or
     her suspended operator’s license, proof of issuance of a
     new license, or proof of return of the impounded license,
     the person shall only be fined in an amount not to exceed
     one hundred dollars.
(Emphasis supplied.) Under Neb. Rev. Stat. § 28-106 (Reissue
2016), a Class III misdemeanor is generally punishable by a
maximum of 3 months’ imprisonment, a fine of $500, or both,
with no minimum.
   The court concluded that Ralios did not present sufficient
evidence to show that his license had been reinstated in
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               Nebraska Supreme Court A dvance Sheets
                       301 Nebraska R eports
                               STATE v. RALIOS
                              Cite as 301 Neb. 1027

the State of Missouri. No evidence was presented to the
court regarding Ralios’ prior convictions at the sentencing
hearing, but the county court considered Ralios’ prior con-
victions for driving without an operator’s license in Dodge
County, Nebraska, which the court found on Nebraska’s online
trial court case management system, known as JUSTICE.
Considering the prior convictions and the evidence presented,
the county court sentenced Ralios to 75 days in jail.
   Ralios appealed his sentence to the district court for Thurston
County, and a hearing was held on January 10, 2018. Ralios
argued that the sentence was not authorized by statute, because
he had presented sufficient evidence to warrant the statutory
sentence requiring a reduction to only a $100 fine, and the
county court abused its discretion by imposing an excessive
sentence of 75 days in jail. The State did not submit a brief or
argue. The district court affirmed the judgment and sentence of
the county court. Ralios appeals.

                ASSIGNMENTS OF ERROR
  Ralios assigns that the district court erred in affirming the
county court’s sentence of 75 days in jail instead of a fine of
$100 or less under § 60-4,108(2) and in abusing its discretion
by ordering Ralios to serve an excessive sentence.

                    STANDARD OF REVIEW
   [1] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.1
   [2,3] Whether an appellate court is reviewing a sentence
for its leniency or its excessiveness, a sentence imposed by a
district court that is within the statutorily prescribed limits will
not be disturbed on appeal unless there appears to be an abuse
of the trial court’s discretion.2 A judicial abuse of discretion
exists only when the reasons or rulings of a trial judge are

 1	
      State v. Thompson, 294 Neb. 197, 881 N.W.2d 609 (2016).
 2	
      State v. Fields, 268 Neb. 850, 688 N.W.2d 878 (2004).
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            Nebraska Supreme Court A dvance Sheets
                    301 Nebraska R eports
                         STATE v. RALIOS
                        Cite as 301 Neb. 1027

clearly untenable, unfairly depriving a litigant of a substan-
tial right and denying a just result in matters submitted for
disposition.3
                           ANALYSIS
   Ralios asserts on appeal that the district court erred in
affirming the county court’s sentence of 75 days in jail instead
of a fine of $100 or less under § 60-4,108(2) and in abusing its
discretion by ordering Ralios to serve an excessive sentence.
We first address the issue of the interpretation of § 60-4,108(2),
with the issue regarding the excessiveness of his sentence to
follow. There is no issue as to whether the evidence was suffi-
cient to support Ralios’ conviction of driving under suspension,
because Ralios pled guilty to the offense and the propriety of
his plea and conviction are not issues argued before this court
on appeal.

                Interpretation of § 60-4,108(2)
   In support of his first assignment, Ralios argues that he
provided the trial court with sufficient “proof of reinstatement
of his or her suspended operator’s license” by submitting a
letter from the Missouri Driver License Bureau stating that
Ralios was “not currently suspended or revoked in the state
of Missouri” as of October 3, 2017. The State contends that
the letter did not meet the requirement set by the statute.
We agree.
   The language of § 60-4,108(2) at issue in this appeal
is “proof of reinstatement of his or her suspended opera-
tor’s license, proof of issuance of a new license, or proof of
return of the impounded license.” (Emphasis supplied.) Ralios
argues—and the State concedes—that the function of this sec-
tion is to mitigate a sentence for people who show proof of
their reinstatement of their suspended operators’ licenses. We
determine in this appeal the meaning of “proof of reinstatement

 3	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                                STATE v. RALIOS
                               Cite as 301 Neb. 1027

of his or her suspended operator’s license” without expressing
any opinion as to whether the statute prohibits jail time for
defendants who provide such proof. The meaning of “proof of
reinstatement of his or her suspended operator’s license” is an
issue of first impression for this court.
   [4,5] The fundamental objective of statutory interpretation
is to ascertain and carry out the Legislature’s intent.4 In read-
ing a penal statute, a court must determine and give effect to
the purpose and intent of the Legislature as ascertained from
the entire language of the statute considered in its plain, ordi-
nary, and popular sense.5 Statutory interpretation is a question
of law that an appellate court resolves independently of the
trial court.6
   [6] We hold that “proof of reinstatement of [a] suspended
operator’s license” under Neb. Rev. Stat. § 60-4,108(2) requires
that a driver with a previously suspended license show that his
or her license is no longer suspended and that his or her license
validly and effectively allows the holder to operate a motor
vehicle. This comports with the plain meaning of “reinstate”
as the restoration of the license to its previously effective
state, and it is consistent with Neb. Rev. Stat. § 60-4,100.01
(Reissue 2010). Proof of “reinstatement” of an operator’s
license requires more than a mere showing of nonsuspension.
Instead, proof of reinstatement involves proof that the indi-
vidual holds an affirmatively issued license or permit to legally
drive a motor vehicle.
   We find no merit to Ralios’ argument that the statute’s plain
language, read in pari materia with other definitional sections
of Nebraska’s operator’s license laws, demonstrates that he
is required only to show that he has his “privilege to drive,”
which he defines as the ability to obtain a license if he so
chooses, “reinstated,” in order to show “proof of reinstatement

 4	
      State v. Thompson, supra note 1.
 5	
      Id.
 6	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                               STATE v. RALIOS
                              Cite as 301 Neb. 1027

of his or her suspended operator’s license.”7 He argues that
the statute does not require that he be in possession of a valid
tangible government issued license, because the definition of
“operator’s license” under Neb. Rev. Stat. § 60-474 (Cum.
Supp. 2016) is much broader; a privilege to drive is, according
to Ralios, the ability to obtain a license. Thus, he contends that
his “operator’s license” was automatically “reinstated” at the
conclusion of his suspension.
   Section 60-474 of the Motor Vehicle Operator’s License
Act8 defines “[o]perator’s or driver’s license” as
      [A]ny license or permit to operate a motor vehicle issued
      under the laws of this state, including:
         (1) Any replacement license or instruction permit;
         (2) The privilege of any person to drive a motor vehicle
      whether such person holds a valid license;
         (3) Any nonresident’s operating privilege which shall
      mean the privilege conferred upon a nonresident by the
      laws of this state pertaining to the operation of a motor
      vehicle in this state by such person or the use in this state
      of a vehicle owned by such person;
         (4) An employment driving permit issued as provided
      by sections 60-4,129 and 60-4,130; and
         (5) A medical hardship driving permit issued as pro-
      vided by sections 60-4,130.01 and 60-4,130.02.
(Emphasis supplied.) Focusing on § 60-474(2) and the lan-
guage “privilege . . . to drive a motor vehicle whether such
person holds a valid license,” Ralios argues that “operator’s
license” includes situations where no government agency has
issued a license to an individual, but the individual has the
legal right to obtain a license. He argues that this is the
“privilege” that would fall within the scope of the definition
of “operator’s license.” Because he provided proof that his

 7	
      Brief for appellant at 10.
 8	
      Neb. Rev. Stat. §§ 60-462 to 60-4,189 (Reissue 2010, Cum. Supp. 2016 &
      Supp. 2017).
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                         STATE v. RALIOS
                        Cite as 301 Neb. 1027

license was no longer suspended in Missouri, he asserts that
he effectively showed that his driving privilege, or “operator’s
license” under § 60-474, was “reinstated.”
   Ralios is incorrect that an “operator’s license,” for rein-
statement purposes, includes the mere legal ability to obtain a
driver’s license. Looking at the act as a whole, the Legislature
consistently uses the phrase “operator’s license” in contexts
where the term refers to an affirmatively issued license or per-
mit to legally drive—not to the concept of potential privileges
for unlicensed drivers. For example, § 60-484(1) states that “no
resident of the State of Nebraska shall operate a motor vehicle
upon the alleys or highways of this state until the person
has obtained an operator’s license for that purpose.” Section
60-488(2)(a) of the act extends driving privileges to non-
residents so long as “[s]uch nonresident shall be duly licensed
under the motor vehicle laws of the state of his or her residence
. . . .” These provisions would make little sense if the term
“operator’s license” were strained to encompass persons who
merely had the option to obtain a license or permit.
   On the day of sentencing, Ralios conceded that he (1) was
not able to drive in the State of Missouri legally at that time,
(2) did not have a current driver’s license, and (3) was told by
the State of Missouri that he could obtain a new license but
never obtained one. As evidence of proof of reinstatement, he
provided only the clearance letter from Missouri. Because this
letter did not affirmatively show that Ralios had a current valid
operator’s license in the State of Missouri, we find that it was
insufficient to warrant the reduction of his sentence to a $100
fine under § 60-4,108(2).

                      Excessive Sentence
   By determining that Ralios’ clearance letter was insufficient
to warrant the reduction of his sentence to a $100 fine under
§ 60-4,108(2), we now must determine whether the imposition
of his 75-day jail sentence was excessive and thus an abuse of
discretion by the lower court.
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                     Nebraska Supreme Court A dvance Sheets
                             301 Nebraska R eports
                                    STATE v. RALIOS
                                   Cite as 301 Neb. 1027

   [7] When a trial court’s sentence is within the statutory
guidelines, the sentence will only be disturbed by an appellate
court when an abuse of discretion is shown.9 As § 60-4,108(2)
states, a person who violates that section is guilty of a Class
III misdemeanor. Under § 28-106, a Class III misdemeanor is
generally punishable by a maximum of 3 months’ imprison-
ment, a fine of $500, or both, with no minimum. Here, Ralios
was sentenced to 75 days in jail, and his sentence was clearly
within the statutory guidelines. Therefore, Ralios’ sentence will
only be disturbed if there was a judicial abuse of discretion by
the sentencing court.
   [8,9] Abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.10 When imposing a sentence, a sentencing judge
should consider 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 violence involved in the commission of
the crime.11 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.12
Generally, the sentencing court has broad discretion as to the
source and type of evidence and information which may be
used in determining the kind and extent of the punishment to
be imposed, and evidence may be presented as to any matter
that the court deems relevant to the sentence.13

 9	
      State   v.   Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
10	
      State   v.   Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).
11	
      State   v.   Huff, supra note 9.
12	
      State   v.   Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).
13	
      State   v.   Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
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                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                               STATE v. RALIOS
                              Cite as 301 Neb. 1027

   Ralios argues, first, that the sentencing court acted contrary
to its role by considering Ralios’ prior convictions and crimi-
nal history that the court independently found on Nebraska’s
online trial court case management system, known as JUSTICE.
However, there is nothing in the record to show that the sen-
tencing court’s consideration of these materials were objected
to below. A party who fails to make a timely objection to
evidence waives the right on appeal to assert prejudicial error
concerning the evidence received without objection.14
   Second, Ralios argues that the court did not properly con-
sider mitigating factors in imposing the 75-day jail sentence.
Based on the record before us, the sentencing court did not
consider any inappropriate or unreasonable factors in determin-
ing the sentence. We find that the court did not make its deci-
sion based upon reasons that are untenable or unreasonable,
nor was its action clearly against justice or conscience, reason,
and evidence.

                         CONCLUSION
   For the reasons set forth above, we affirm the district court’s
affirmance of the county court’s sentence.
                                                     A ffirmed.

14	
      State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003).
