                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. DURHAM


  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.

                             RICHARD V. DURHAM, JR., APPELLANT.


                              Filed April 23, 2019.   No. A-18-958.


      Appeal from the District Court for Scotts Bluff County: LEO P. DOBROVOLNY, Judge.
Vacated and remanded for resentencing.
       Bernard J. Straetker, Scotts Bluff County Public Defender, for appellant.
       Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.


       RIEDMANN, BISHOP, and WELCH, Judges.
       RIEDMANN, Judge.
                                       INTRODUCTION
       Richard V. Durham, Jr., appeals the sentence he received in the district court for Scotts
Bluff County, arguing that the district court abused its discretion and imposed an excessive
sentence. We find that the district court committed plain error by sentencing Durham to a
determinate sentence rather than an indeterminate sentence. We therefore vacate his sentence and
remand the cause for resentencing.
                                        BACKGROUND
        In February 2018, the State filed a complaint against Durham in the county court for Scotts
Bluff County, charging him with one count of possession of a controlled substance, to wit, cocaine,
in violation of Neb. Rev. Stat. § 28-416(3) (Reissue 2016); one count of possession of a controlled
substance, to wit, methamphetamine, in violation of § 28-416(3); and one count of operating a



                                               -1-
vehicle without an operator’s license. Counts I and II were both Class IV felonies, and count III
was a Class III misdemeanor. All arose out of an incident that occurred in February 2018. Durham
was subsequently bound over to the district court where he was arraigned on an information
charging him with the same three counts. Durham pled not guilty to all counts.
        In July 2018, Durham reached a plea agreement with the State in which he agreed to plead
no contest to one count of possession of a controlled substance, methamphetamine, and the State
dismissed the other charges. As part of the plea, the State provided a factual basis, stating that
Durham was stopped while operating a vehicle for failing to use his turn signal and driving in the
wrong lane of traffic. While Durham was reaching for his identification, a baggie with white
residue came out of his pocket. The baggie tested presumptive positive for methamphetamine, and
was confirmed to be methamphetamine by the state lab.
        Following the State’s factual basis, the court accepted Durham’s plea of no contest and
found him guilty of the charge. In September 2018, he was sentenced to 2 years’ imprisonment.
Immediately prior to this sentencing, Durham was sentenced to 8 to 10 years’ imprisonment on a
Class II felony. His sentence of 2 years’ imprisonment was to run concurrently with the prior
sentence of 8 to 10 years’ imprisonment he received in case No. A-18-957.
                                    ASSIGNMENT OF ERROR
       Durham assigns, restated, that the district court abused its discretion and imposed an
excessive sentence.
                                    STANDARD OF REVIEW
        An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018).
        An abuse of discretion in imposing a sentence occurs when a sentencing court’s reasons or
rulings are clearly untenable and unfairly deprive the litigant of a substantial right and just result.
State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017).
        Plain error may be found on appeal when an error, plainly evident from the record,
prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process. State v. Kantaras, 294 Neb. 960, 885
N.W.2d 558 (2016). A sentence that is contrary to the court’s statutory authority is an appropriate
matter for plain error review. Id.
                                            ANALYSIS
        When imposing a sentence, a sentencing judge should customarily 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 amount of violence involved in the commission of the crime.
State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017). However, the sentencing court is not limited
to any mathematically applied set of factors. 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.




                                                 -2-
         Durham was convicted of a Class IV felony, which carries a maximum sentence of 2 years’
imprisonment and 12 months’ postrelease supervision. Neb. Rev. Stat. 28-105(1) (Reissue 2016).
Thus, Durham’s sentence was within the statutory guidelines for his offense. However, as noted
by the State, Durham received a determinate sentence of 2 years’ imprisonment with no period of
postrelease supervision, but the district court was required to impose an indeterminate sentence for
his offense. Neb. Rev. Stat. § 29-2204.02(4) (Reissue 2016) requires a district court to impose an
indeterminate sentence for a Class IV felony, when sentencing a defendant consecutively or
concurrently with a sentence of imprisonment for a Class II felony.
         Here, the district court acknowledged on the record that Durham was being sentence
“concurrently with a Class II offense.” It then stated that Durham’s sentence was to run
concurrently with his sentence of 8 to 10 years’ imprisonment on this Class II felony. Thus, the
district court was required to impose an indeterminate sentence on Durham, and plainly erred in
sentencing him to a determinate sentence of 2 years’ imprisonment. Therefore, because the district
court imposed an improper sentence on Durham, we agree with the State’s assertion that his
sentence should be vacated and the cause remanded to the district court for resentencing. See State
v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017) (vacating defendant’s sentence and remanding
cause for resentencing consistent with § 29-2204.02(4)). Because we are vacating Durham’s
sentence and remanding the cause to the district court for resentencing, we do not address
Durham’s claim that the sentence imposed was excessive.
                                         CONCLUSION
       For the reasons set forth above, we find that Durham’s sentence of 2 years’ imprisonment
should be vacated and the cause remanded to the district court for resentencing.
                                                   VACATED AND REMANDED FOR RESENTENCING.




                                               -3-
