   Decisions of the Nebraska Court of Appeals
962	21 NEBRASKA APPELLATE REPORTS



834 N.W.2d 609 (2013). If the language of a statute is clear,
the words of such statute are the end of any judicial inquiry
regarding its meaning. State v. Bossow, 274 Neb. 836, 744
N.W.2d 43 (2008). I do not see how we can read “use of
force” or “[a]ctor shall mean any person who uses force,” see
§ 28-1406(4), out of §§ 28-1406 through 28-1416. This is a
marijuana possession with intent to deliver case. It does not
involve the use of force, and accordingly, the “Justification
for Use of Force” statutes are legally unavailable to Beal. In
my opinion, that should be the end of our judicial inquiry on
that issue.



                     State of Nebraska, appellee, v.
                    Christopher D. Elliott, appellant.
                                    ___ N.W.2d ___

                         Filed April 22, 2014.    No. A-13-522.

 1.	 Sentences: Appeal and Error. A sentence imposed within statutory limits will
      not be disturbed on appeal absent an abuse of discretion by the trial court.
 2.	 Statutes. Statutory language is to be given its plain and ordinary meaning.
  3.	 ____. If the language of a statute is clear, the words of such statute are the end of
      any judicial inquiry regarding its meaning.
  4.	 ____. It is not within the province of a court to read a meaning into a statute that
      is not warranted by the language; neither is it within the province of a court to
      read anything plain, direct, or unambiguous out of a statute.
 5.	 Criminal Attempt: Weapons: Sentences. Attempted use of a deadly weapon to
      commit a felony is not a crime defined in Neb. Rev. Stat. § 28-1205 (Cum. Supp.
      2012), and therefore, it does not carry a mandatory consecutive sentence.
 6.	 Sentences. It is within the discretion of the trial court to direct that sentences
      imposed for separate crimes be served consecutively.
  7.	 ____. The test of whether consecutive sentences may be imposed under two or
      more counts charging separate offenses, arising out of the same transaction or the
      same chain of events, is whether the offense charged in one count involves any
      different elements than an offense charged in another count and whether some
      additional evidence is required to prove one of the other offenses.

   Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Affirmed.
  Dennis R. Keefe, Lancaster County Public Defender, and
Scott P. Helvie for appellant.
         Decisions   of the  Nebraska Court of Appeals
	                         STATE v. ELLIOTT	963
	                       Cite as 21 Neb. App. 962

   Jon Bruning, Attorney General, and Kimberly A. Klein
for appellee.
    Inbody, Chief Judge, and Irwin and Riedmann, Judges.
    Riedmann, Judge.
                      I. INTRODUCTION
   Christopher D. Elliott appeals his plea-based convictions
of robbery and attempted use of a firearm to commit a felony.
Elliott asserts that the district court abused its discretion by
imposing excessive sentences and ordering his sentences to
be served consecutively. Finding no merit to Elliott’s assigned
errors, we affirm.
                        II. BACKGROUND
   On November 5, 2012, the State filed an information in
the district court for Lancaster County charging Elliott with
robbery, a Class II felony, and use of a firearm to commit a
felony, a Class IC felony. Pursuant to a plea agreement, the
State amended the use of a firearm charge to attempted use of a
firearm, a Class II felony, and agreed not to file any additional
charges arising out of this incident. Elliott entered a plea of
guilty to robbery and a plea of no contest to attempted use of a
firearm to commit a felony.
   Before accepting his pleas, the district court thoroughly
advised Elliott regarding the rights he was waiving and the
potential penalties he faced, all of which Elliott indicated he
understood. The court initially advised Elliott that the sentence
imposed for attempted use of a firearm would be ordered to run
consecutively to the sentence imposed for robbery. However,
the district court later changed its advisement after Elliott’s
counsel requested clarification on the issue. The following
exchange occurred:
         [Defense counsel]: . . . I think when you told [Elliott]
      what the penalty was, you advised him that the penalty
      on Count II had to be consecutive to Count I. I advised
      him that that penalty could be concurrent or consecu-
      tive. It’s not a use — it’s an attempted use — and that it
      was in your discretion whether you ran that concurrently
      or consecutively.
   Decisions of the Nebraska Court of Appeals
964	21 NEBRASKA APPELLATE REPORTS



         So I wanted to clarify that with my client because I
      told him a little differently.
         THE COURT: And you are accurate on an attempt. You
      are accurate. It could either be concurrent or consecutive,
      the sentence.
   The State provided a factual basis to support the pleas, as
summarized below:
   Shortly after 5 a.m. on August 3, 2012, Lincoln Police
received a report of a home invasion robbery near 15th and
Whittier Streets in Lincoln, Lancaster County, Nebraska. Upon
arrival, officers observed two men fleeing from the back of the
residence. Both men were apprehended after a short foot pur-
suit; they were identified as Elliott and Clyde Flemons. A third
suspect was believed to have driven off.
   Officers made contact with one of the victims, Amon
Whitlow, who was bleeding due to injuries on his forehead
and lip as well as an open laceration on the top rear portion
of his head. Whitlow reported that he was going out to his car
to go to work around 5 a.m. when Elliott approached him and
asked “to borrow his phone.” Elliott then pulled out a gun,
which Whitlow described as “a short Tech 9 or oozie-style
firearm” with a clip and shoulder strap. Flemons approached
from the south side of the house and pointed a small silver- or
chrome-colored gun at Whitlow. A third, unidentified male
also approached.
   Elliott and Flemons began hitting Whitlow in the head
with their guns and fists and then led him inside the house,
demanding to know where money and marijuana were located.
Whitlow told them he did not sell marijuana any more, but
they continued beating him and threatened to kill him and his
family. Whitlow’s wife, who was 8 months pregnant at the
time, was forced to take one of the men through the house to
search for money and drugs. At one point, Flemons grabbed
Whitlow’s 2-year-old son, pointed a gun at the child’s head,
and threatened to shoot him. Whitlow’s wife grabbed the child
from Flemons and retreated to a back bedroom, where she
and her five children escaped out a window. Meanwhile, a
struggle ensued between Elliott and Whitlow. Elliott fired his
weapon, but Whitlow was not struck. Whitlow gave the men
        Decisions   of the  Nebraska Court of Appeals
	                        STATE v. ELLIOTT	965
	                      Cite as 21 Neb. App. 962

approximately $2,400 that he and his wife had been saving for
a trip. They took the money, and Whitlow was able to escape
“out the back.”
   Officers located a .45-caliber shell casing in the living room
of the residence and discovered that the bullet had traveled
through the living room floor and the basement ceiling and was
lodged in the wall of one of the children’s bedrooms. Officers
also recovered two firearms: (1) a black .45-caliber “ACP
MasterPiece Arms machine pistol” with a loaded magazine and
a round in the chamber, “located near . . . Elliott” and similar
to the “oozie-style firearm” that Whitlow described, and (2)
a black 9-mm pistol with five rounds in the magazine and
one in the chamber, located in the backyard of a nearby resi-
dence where Flemons ran during the foot pursuit. Officers also
found blood spatters in the residence that corresponded with
Whitlow’s statement describing the incident.
   Elliott was interviewed by law enforcement. He initially
denied any involvement in the robbery, but eventually acknowl-
edged that he and two other men went to the house with the
intent to rob the owner, who was rumored to be a drug dealer
in possession of $20,000 cash. Elliott maintained, however,
that he brought only pepper spray to the residence and that he
had been downstairs when the firearm discharged.
   The district court accepted Elliott’s pleas and found him
guilty beyond a reasonable doubt of both offenses. Elliott
was sentenced to 15 to 20 years’ imprisonment for robbery
and 4 to 6 years’ imprisonment for attempted use of a fire-
arm to commit a felony, to be served consecutively. Elliott
timely appeals.

               III. ASSIGNMENTS OF ERROR
  Elliott assigns two errors on appeal. He alleges the district
court abused its discretion by (1) imposing excessive sentences
and (2) ordering his sentences to be served consecutively.

                 IV. STANDARD OF REVIEW
   [1] A sentence imposed within statutory limits will not be
disturbed on appeal absent an abuse of discretion by the trial
court. State v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012).
   Decisions of the Nebraska Court of Appeals
966	21 NEBRASKA APPELLATE REPORTS



                         V. ANALYSIS
                     1. Excessive Sentences
   The crimes of which Elliott was convicted are Class II
felonies, punishable by a minimum of 1 year’s imprison-
ment and a maximum of 50 years’ imprisonment. Neb. Rev.
Stat. §§ 28-105, 28-201(4)(a), and 28-1205(1)(c) (Cum. Supp.
2012). Elliott’s sentences are well within the statutory limits,
and he received a substantial benefit from the plea agreement
reached with the State. As originally charged, Elliott faced a
Class IC felony, punishable by a mandatory minimum of 5
years’ imprisonment and a maximum of 50 years’ imprison-
ment. See §§ 28-105 and 28-1205(1)(c). The original charge
also required a consecutive sentence. See § 28-1205(3).
   Where a sentence imposed within the statutory limits is
alleged on appeal to be excessive, the appellate court must
determine whether the 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. Dinslage, 280 Neb. 659, 789 N.W.2d 29
(2010). 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. Id. But the appropriateness of a sentence is nec-
essarily a subjective judgment that includes the sentencing
judge’s observation of the defendant’s demeanor and attitude
and all the facts and circumstances surrounding the defend­
ant’s life. Id.
   Elliott was 21 years old at the time of sentencing. The pre-
sentence report reflects that Elliott’s criminal activity began
in 2006, when he was just 15 years old. He was charged in
juvenile court for disturbing the peace, but the case was later
dismissed. In 2007, Elliott was adjudicated for two counts of
unauthorized use of vehicles. He was committed to a youth
rehabilitation and treatment center and escaped from that facil-
ity less than 2 months later. Elliott’s adult convictions include
         Decisions   of the  Nebraska Court of Appeals
	                         STATE v. ELLIOTT	967
	                       Cite as 21 Neb. App. 962

obstructing a police officer and two counts of attempted crimi-
nal mischief involving $1,500 or more.
   Although his criminal history is relatively minor, the present
offenses are very serious and were committed in an extremely
violent manner. The evidence shows that Elliott was an active
participant in an armed robbery during which Whitlow was
badly beaten and the lives of Whitlow’s pregnant wife and
2-year-old child were threatened at gunpoint. Elliott wielded
an automatic machine pistol during the robbery and fired a shot
during a struggle with Whitlow.
   Elliott argues on appeal that the trial court failed to give
adequate weight to mitigating circumstances, including his
age, lack of a significant criminal history, lack of any criminal
history involving violence, drug and alcohol addiction and
mental health problems, strong family ties and support, obliga-
tions as a father, willingness to accept responsibility for his
actions, and demonstrated remorse for his involvement in the
offense. However, all of this information was presented to the
district court before it imposed Elliott’s sentences. The district
court indicated that it considered the presentence report, as
well as the comments provided at sentencing and the appli-
cable statutes. There is no evidence that the district court failed
to properly consider all of the relevant factors in imposing
Elliott’s sentences.
   Given the serious and violent nature of these offenses,
we cannot say that the district court abused its discretion by
imposing sentences within the statutory limits.

                   2. Consecutive Sentences
            (a) Attempted Use of Firearm Does Not
                 Require Consecutive Sentence
   In his second assignment of error, Elliott asserts that the
district court abused its discretion by ordering his sentences
to be served consecutively. He argues that one of the potential
benefits of his plea agreement was that it reduced the use of
a firearm charge, a conviction of which carried a mandatory
consecutive sentence, to attempted use of a firearm, which
permitted the court to impose concurrent sentences. Elliott
   Decisions of the Nebraska Court of Appeals
968	21 NEBRASKA APPELLATE REPORTS



argues that concurrent sentences are appropriate because both
offenses arose out of a single transaction.
   At the plea hearing, the judge initially advised Elliott that
the sentence imposed on count II would be ordered to run
consecutively. Defense counsel then reminded the judge that
the use of a firearm charge had been amended to attempted use
and stated that a consecutive sentence was not mandatory. The
judge agreed, stating, “It could either be concurrent or con-
secutive, the sentence.”
   Counsel has not provided us with any authority that governs
whether a sentence for attempted use of a firearm must be
served consecutively, as required by § 28-1205(3), or whether
it can be ordered to be served concurrently, and our research
has not disclosed any. Therefore, this appears to be a question
of first impression.
   Section 28-1205(3) provides that crimes of use or pos-
session of a firearm are separate offenses from the felony
being committed and that therefore, the sentence imposed shall
be consecutive to any other sentence imposed. Had Elliott
been convicted of the original charge of use of a firearm
to commit a felony, the sentencing judge would have been
statutorily required to order consecutive sentences. The State
reduced the use charge, however, to attempted use pursuant to
§ 28-201(4)(a).
   Section 28-1205(1)(a) defines the offense of use of a deadly
weapon to commit a felony, and § 28-1205(2)(a) defines the
offense of possession of a deadly weapon during the commis-
sion of a felony. The language of § 28-1205(3) states: “The
crimes defined in this section shall be treated as separate and
distinct offenses from the felony being committed, and sen-
tences imposed under this section shall be consecutive to any
other sentence imposed.” (Emphasis supplied.)
   [2-5] Statutory language is to be given its plain and ordi-
nary meaning. State v. Ohlrich, 20 Neb. App. 67, 817 N.W.2d
797 (2012). If the language of a statute is clear, the words
of such statute are the end of any judicial inquiry regard-
ing its meaning. Id. It is not within the province of a court
to read a meaning into a statute that is not warranted by the
        Decisions   of the  Nebraska Court of Appeals
	                        STATE v. ELLIOTT	969
	                      Cite as 21 Neb. App. 962

language; neither is it within the province of a court to read
anything plain, direct, or unambiguous out of a statute. State
v. Warriner, 267 Neb. 424, 675 N.W.2d 112 (2004). Applying
the plain language of the statute as written in § 28-1205(3), it
is only those “crimes defined in this section” that are treated
as distinct offenses from the felony committed, and only the
“sentences imposed under this section” that are required to be
consecutive to any other sentence imposed. When the State
amended its charge to attempted use of a firearm to commit a
felony, the State was no longer proceeding under § 28-1205,
but, rather, was charging Elliott under § 28-201. Therefore,
Elliott did not plead to a crime defined under § 28-1205
and the sentence imposed was not a sentence imposed under
§ 28-1205. As a result, the sentencing judge was not statutorily
required to impose a consecutive sentence.
   We are mindful that the legislative purpose in enacting
§ 28-1205 was to discourage individuals from employing and
carrying deadly weapons while they commit felonies, in order
to prevent the threat of violence and accompanying danger to
human life present whenever one has a deadly weapon dur-
ing the commission of a felony. State v. Miller, 284 Neb. 498,
822 N.W.2d 360 (2012); State v. Garza, 256 Neb. 752, 592
N.W.2d 485 (1999). Applying the statute to attempted use of
a firearm may, in many circumstances, be consistent with and
in furtherance of this purpose. However, “[i]t is the province
of the legislative branch, not the judiciary, to define criminal
offenses within constitutional boundaries. ‘[J]udicial construc-
tion is constitutionally permissible, but judicial legislation is
not.’” State v. Smith, 282 Neb. 720, 732, 806 N.W.2d 383, 393
(2011), quoting State v. Burlison, 255 Neb. 190, 583 N.W.2d
31 (1998) (Wright, J., concurring; Connolly and Gerrard, JJ.,
join). To include the crime of attempted use of a firearm to
commit a felony within the confines of § 28-1205 would be
judicial legislation.
   Elliott did not plead to either use of a firearm or posses-
sion of a firearm. Under the plain language of § 28-1205,
absent one of those two crimes, a consecutive sentence is not
required. Therefore, we conclude that the sentencing judge
   Decisions of the Nebraska Court of Appeals
970	21 NEBRASKA APPELLATE REPORTS



was not required to impose a consecutive sentence in this
case. We must therefore determine whether he abused his dis-
cretion in doing so.
          (b) Trial Court Did Not Abuse Its Discretion
                by Imposing Consecutive Sentences
   [6,7] It is within the discretion of the trial court to direct that
sentences imposed for separate crimes be served consecutively.
State v. Andersen, 238 Neb. 32, 468 N.W.2d 617 (1991). The
test of whether consecutive sentences may be imposed under
two or more counts charging separate offenses, arising out of
the same transaction or the same chain of events, is whether
the offense charged in one count involves any different ele-
ments than an offense charged in another count and whether
some additional evidence is required to prove one of the other
offenses. See id.
   Here, it is clear that robbery and attempted use of a firearm
to commit a felony are separate offenses containing differ-
ent elements. See §§ 28-201 and 28-1205 and Neb. Rev. Stat.
§ 28-324 (Reissue 2008). Additional evidence is necessary
to prove the elements of attempted use of a firearm than that
which is necessary to prove the elements of robbery. Thus,
it was in the district court’s discretion to impose consecutive
rather than concurrent sentences for the separate crimes. The
sentencing judge recognized this discretion and agreed with
defense counsel’s statement that the sentence on the attempt
charge could be either concurrent with or consecutive to the
sentence for robbery. Based upon the facts set forth above, we
find no abuse of discretion in the trial court’s order of consecu-
tive sentences.
                      VI. CONCLUSION
   Because the crime of attempted use of a firearm to commit
a felony is not included in § 28-1205, it does not carry a man-
datory consecutive sentence. However, because it is a sepa-
rate crime from robbery, the district court had discretion to
impose consecutive sentences. The district court did not abuse
its discretion in imposing Elliott’s sentences. Accordingly,
we affirm.
                                                    Affirmed.
