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State v. Artis

Supreme Court of Nebraska

March 24, 2017

State of Nebraska, Appellee,
v.
Tareik Q. Artis, Appellant.

         1. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         2. Statutes: Appeal and Error. The interpretation of a statute is a question of law.

         3. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

         4. Sentences. When imposing a sentence, the 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 offense. The sentencing court is not limited to any mathematically applied set of factors.

         5. ___ . 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.

         6. ___ . It is within the discretion of the trial court to impose consecutive rather than concurrent sentences for separate crimes. This is true even when the crimes arise out of the same incident.

         7. Sentences: Appeal and Error. While an appellate court typically reviews criminal sentences that are within statutory limits for abuse of discretion, the appellate court always reserves the right to note plain error which was not complained of at trial or on appeal.

         8. Appeal and Error: Words and Phrases. Plain error is error of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. [296 Neb. 173]

         9. Sentences. A determinate sentence is imposed when the defendant is sentenced to a single term of years.

         10. ___ . With a determinate sentence, the court does not provide a minimum term; the minimum term is considered to be the minimum term provided by law.

         11. ___ . When imposing an indeterminate sentence, a sentencing court ordinarily articulates either a minimum term and maximum term or a range of time for which a defendant is to be incarcerated.

         12. ___ .In Nebraska, the fact that the minimum term and maximum term of a sentence are the same does not affect the sentence's status as an indeterminate sentence.

         Appeal from the District Court for Lancaster County: Lori A. Maret, Judge. Affirmed.

          Robert Wm. Chap in, Jr., for appellant.

          Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Kelch, J.

         I. NATURE OF CASE

         Tareik Q. Artis was sentenced to not less than 2 years nor more than 2 years of imprisonment for possession of a controlled substance, a Class IV felony, and to 15 to 20 years' imprisonment for possession of a stolen firearm, a Class IIA felony. These sentences were ordered to be served consecutively. From these sentences, Artis appeals, alleging that they are excessive and that they should have been imposed to run concurrently.

         While Artis' appeal was pending, a legislative bill[1] was enacted, which, among other things, amended Neb. Rev. Stat. § 29-2204.02 (Reissue 2016) to provide that "the court shall impose an indeterminate sentence" for Class IV felonies [296 Neb. 174] imposed consecutively or concurrently with a sentence for a Class IIA felony "in accordance with the process set forth in section 29-2204."

         In light of the amendment to § 29-2204.02, this court must determine whether Artis' sentence of not less than 2 years nor more than 2 years of imprisonment constitutes plain error.

         II. FACTS

         1. Background

         On September 22, 2015, Artis was wanted for fleeing to avoid a traffic citation. In pursuit of Artis, a Lincoln police officer was patrolling by a residence that Artis was known to frequent. While the officer checked the residence, he observed a person driving away in a vehicle. As the vehicle passed the officer, the officer smelled marijuana and initiated a traffic stop. Artis was a passenger in the back seat of the vehicle.

         The occupants were removed from the vehicle one at a time, with Artis being the last person to exit. Artis fled on foot, and a chase ensued. According to Artis' statement in the presentenc-ing report, Artis had a gun and knew the officer had seen it. Artis then ran for a few blocks before he was surrounded by law enforcement. Artis kept running after officers told him to stop. At the time, Artis had the gun in his hand. Officers shot at Artis four times, hitting him three times.

         Prior to being transported to the hospital, articles of Artis:clothing were removed by medical personnel and left at the scene. Found near his clothing was a white plastic cylinder containing 4.9 grams of cocaine. Also recovered at the scene was a .45-caliber semiautomatic pistol with a fully loaded magazine containing seven rounds, as well as two additional magazines, each fully loaded with seven rounds. A firearm "trace" revealed that the firearm had been stolen.

         2. Charges and Plea Agreement

         Artis was originally charged with three counts of possession of controlled substances. Count I was for cocaine, and counts II and III were for oxycodone and alprazolam. Artis [296 Neb. 175] was also charged with possession of a stolen firearm. Pursuant to a plea agreement, Artis pled no contest to one count of possession of a controlled substance (cocaine) and to ...


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