Criminal Law: Courts: Appeal and Error. In
an appeal of a criminal case from the county court, the
district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for
error or abuse of discretion.
Courts: Appeal and Error. Both the district
court and a higher appellate court generally review appeals
from the county court for error appearing on the record.
Judgments: Appeal and Error. When reviewing
a judgment for errors appearing on the record, an appellate
court's inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
Constitutional Law: Sentences. Whether a
sentence constitutes cruel and unusual punishment in
violation of the Eighth Amendment presents a question of law.
Judgments: Appeal and Error. When reviewing
a question of law, an appellate court reaches a conclusion
independent of the lower court's ruling.
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
Judgments: Words and Phrases. An abuse of
discretion occurs when a trial court's decision is based
upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and
Appeal and Error. Plain error may be found
on appeal when an error unasserted or uncomplained of at
trial is plainly evident from the record, affects a
litigant's substantial right, and, if uncorrected, would
result in damage to the integrity, reputation, and fairness
of the judicial process.
Neb. 694] 9. Constitutional Law: Sentences.
The Eighth Amendment prohibits not only barbaric punishments,
but also sentences that are disproportionate to the crime
committed. The U.S. Supreme Court has characterized this as a
"narrow proportionality principle" which does not
require strict proportionality between crime and sentence,
but, rather, forbids only extreme sentences that are grossly
disproportionate to the crime.
Under ordinary Eighth Amendment analysis, each sentence is
considered separately, not cumulatively, for purposes of
determining whether it is cruel and unusual.
Sentences: Appeal and Error. Where a
sentence imposed within the statutory limits is alleged on
appeal to be excessive, the appellate court must determine
whether a 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
Sentences. In determining a sentence to be
imposed, relevant factors customarily considered and applied
are 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.
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.
Generally, it is within a trial court's discretion to
direct that sentences imposed for separate crimes be served
either concurrently or consecutively.
from the District Court for Scotts Bluff County. Andrea D.
Miller, Judge, on appeal thereto from the County Court for
Scotts Bluff County, James M. Worden, Judge. Judgment of
District Court affirmed.
Bernard J. Straetker, Scotts Bluff County Public Defender,
Douglas J. Peterson, Attorney General, and Jordan Osborne for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Neb. 695] Miller-Lerman, J.
L. Becker, appellant, was convicted in the county court for
Scotts Bluff County of 21 misdemeanor counts of violating a
protection order and sentenced to county jail for 180 days on
each count, to be served consecutively. On appeal to the
district court, Becker claimed that the sentences imposed
were (1) excessive, (2) disproportionate in violation of the
Eighth Amendment, and (3) invalid because when the county
court orally pronounced his sentences in open court, it
failed to state where the sentences were to be served. The
district court rejected each of these claims and affirmed
Becker's convictions and sentences. On appeal to this
court, Becker claims the district court erred when it
rejected each of ...