[Copyrighted Material Omitted]
Appeal from the District Court for Buffalo County: William T. Wright, Judge.
Brandon J. Dugan, Deputy Buffalo County Public Defender, for appellant.
Jon Bruning, Attorney General, George R. Love, and Mary C. Byrd, Senior Certified Law Student, for appellee.
INBODY, Chief Judge, and IRWIN and BISHOP, Judges.
[22 Neb.App. 599] INBODY,
Aaron P. Brooks appeals his plea-based conviction for refusal to submit to a chemical test enhanced by two prior convictions and the sentence imposed thereon. We reject Brooks' argument that mitigating facts brought to the attention of the district court by a defendant pursuant to Neb. Rev. Stat. § 60-6,197.02(3) (Cum. Supp. 2014) are used by the court in determining whether an otherwise valid prior offense should be used for the purpose of enhancement. However, because the sentence imposed by the court failed to impose a mandatory fine, we vacate Brooks' sentence and remand the matter for resentencing.
STATEMENT OF FACTS
Pursuant to a plea agreement, Brooks, who was represented by counsel, pled no contest to an amended information [22 Neb.App. 600] charging him with refusal to submit to a chemical test with two prior convictions, a Class IIIA felony. Brooks pled to the underlying charge of refusal to submit, but reserved the right to contest his prior convictions to be used for the purpose of enhancement. Pursuant to the plea agreement, the State also agreed to dismiss a county court case charging Brooks with driving during revocation and no proof of insurance. The State provided a factual basis setting forth that on May 31, 2013, at 1 a.m., a Kearney police officer conducted a traffic stop of Brooks' vehicle. Upon making contact with Brooks, who was driving, the officer noticed a strong odor of an alcoholic beverage coming from Brooks, who also showed impairment on field sobriety tests. Brooks' breath alcohol content was determined to be .17 grams of alcohol per 210 liters of breath on a preliminary breath test. Following the postarrest chemical test advisement, Brooks refused to submit to a chemical test. The court found that a factual basis existed for Brooks' plea, accepted Brooks' plea, and found him guilty of the underlying refusal to submit to a chemical test charge.
At the enhancement hearing, the State introduced into evidence certified copies of Brooks' 2001 and 2003 convictions for second-offense driving under the influence, which certified copies also established that Brooks was represented by counsel at the time of both his pleas and his sentencings. Brooks' counsel then sought to submit mitigating circumstances as part of the enhancement hearing, which he was allowed to do, requesting that the court take judicial notice of the current version of § 60-6,197.02, as well as the driving under the influence statutes that were in effect at the time of Brooks' two prior driving under the influence convictions. The court agreed to take judicial notice of the requested statutes. The district court found that there had been two prior convictions that should be counted for the purposes of enhancement and proceeded to the sentencing hearing. The court stated that it was considering as mitigation of Brooks' sentence the fact that his previous convictions were approximately 12 and 14 years prior to the current offense. The court further stated that [22 Neb.App. 601] he would generally send someone with Brooks' history and background to prison for 2 to 6 years; however, the court was going against its usual policy due to the probation officer's recommendation of probation and the State's indication that it was willing to accept a ...