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STATE V. CRISS

Cite as 31 Neb. App. 765

State of Nebraska, appellee, v. 

Robert Criss III, appellant.

___ N.W.2d ___

Filed April 11, 2023. No. A-22-508.

1. Sentences: Appeal and Error. A sentence imposed within the statutory 

limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court.

2. Judges: Words and Phrases. A judicial abuse of discretion exists 

only when the reasons or rulings of a trial judge are clearly untenable, 

unfairly depriving a litigant of a substantial right and denying a just 

result in matters submitted for disposition.

3. Sentences. The first step in analyzing whether sentences are excessive is 

to examine the statutory limits on penalties for such offenses.

4. Sentences: Appeal and Error. In reviewing whether an abuse of 

discretion occurred during sentencing, an appellate court determines 

whether the sentencing court considered and applied the relevant factors and any applicable legal principles in determining the sentences to 

be imposed.

5. Sentences. The relevant factors for a sentencing judge to consider 

when imposing a sentence 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.

6. ____. The sentencing court is not limited to any mathematically applied 

set of factors, but the appropriateness of the sentence is necessarily a 

subjective judgment that includes the sentencing judge’s observations 

of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life.

7. Sentences: Appeal and Error. It is not an appellate court’s function to 

conduct a de novo review and a reweighing of the sentencing factors in 

the record.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/11/2023 09:05 AM CDT
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8. ____: ____. In reviewing sentences, it is enough for an appellate court 

to conclude that the trial court’s reasons for the defendant’s sentences 

are not clearly untenable and do not unfairly deprive him or her of a 

substantial right and just result.

9. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous. Similarly, it is not within the province of the 

courts to read meaning into a statute that is not there or to read anything 

direct and plain out of a statute.

10. Sentences. Courts have the authority to impose an indeterminate sentence for a misdemeanor conviction as long as the offender is required 

to serve his or her time under the jurisdiction of the Department of 

Correctional Services.

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, and 

Rebekah S. Keller for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Pirtle, Chief Judge, and Bishop and Arterburn, Judges.

Pirtle, Chief Judge.

INTRODUCTION

Robert Criss III appeals from his plea-based convictions in 

the district court for Douglas County for attempted possession 

of a firearm by a prohibited person and carrying a concealed 

weapon. He argues that his sentences are excessive. Based on 

the reasons that follow, we affirm.

BACKGROUND

On January 12, 2022, Criss was charged by information in 

Douglas County District Court with possession of a firearm 

by a prohibited person, a Class ID felony. Pursuant to a plea 

agreement, Criss pled guilty to count 1, attempted possession 

of a firearm by a prohibited person, a Class II felony, and 
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count 2, carrying a concealed weapon, a Class I misdemeanor. 

The court accepted Criss’ pleas after receiving the following 

factual basis from the State:

On or about December 17th of 2021, law enforcement 

conducted a traffic stop on a vehicle in which [Criss] 

was a passenger. Officers, as they were approach[ing] 

the vehicle, observed [Criss] placing a bag into the 

back seat.

Officers observed open containers of alcohol in the 

vehicle and then searched the vehicle. When searching 

the bag that was placed in the back seat by [Criss], they 

located a .22 caliber assault rifle.

Neither party gave a statement, and they did do a DNA 

test, which came back showing that the DNA profile 

was 41.4 sextillion times more likely to have originated 

from . . . Criss, . . . his codefendant, and two unknown, 

unrelated individuals than if it had originated from four 

unknown, unrelated individuals, supporting the fact that 

[Criss] had handled the firearm. All events occurred in 

Douglas County, Nebraska.

In addition, Criss stipulated that he had been previously convicted of a felony.

The trial court sentenced Criss to 8 to 10 years’ imprisonment with the Nebraska Department of Correctional Services 

for attempted possession of a firearm by a prohibited person (count 1) and to 365 days’ imprisonment in the Douglas 

County Correctional Center for carrying a concealed weapon 

(count 2). The court ordered the sentences to run consecutively. 

It gave him 186 days of credit for time served on count 2 only. 

The court also ordered that Criss would serve his sentence for 

count 2 first, and based on his days of credit, he had nearly 

completed his incarceration time on count 2.

ASSIGNMENT OF ERROR

Criss assigns that the trial court abused its discretion by 

imposing excessive sentences.
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STANDARD OF REVIEW

[1,2] A sentence imposed within the statutory limits will not 

be disturbed on appeal in the absence of an abuse of discretion 

by the trial court. State v. Morton, 310 Neb. 355, 966 N.W.2d 

57 (2021). A judicial abuse of discretion exists only when 

the reasons or rulings of a trial judge are clearly untenable, 

unfairly depriving a litigant of a substantial right and denying 

a just result in matters submitted for disposition. Id.

ANALYSIS

[3] Criss assigns that the trial court imposed excessive 

sentences. The first step in analyzing whether sentences are 

excessive is to examine the statutory limits on penalties for 

such offenses. State v. Starks, 308 Neb. 527, 955 N.W.2d 313 

(2021). Criss was convicted of attempted possession of a firearm by a prohibited person, a Class II felony. See Neb. Rev. 

Stat. §§ 28-201(4)(a) and 28-1206(3)(b) (Cum. Supp. 2022). 

A Class II felony is punishable by a maximum sentence of 

50 years’ imprisonment and a minimum sentence of 1 year’s 

imprisonment. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2022). 

Criss was sentenced to 8 to 10 years’ imprisonment for the 

Class II felony. His sentence was within the statutory limits.

Criss was also convicted of carrying a concealed weapon, 

a Class I misdemeanor. Neb. Rev. Stat. § 28-1202(4) (Cum. 

Supp. 2022). A Class I misdemeanor is punishable by a maximum of 1 year’s imprisonment, a $1,000 fine, or both. There is 

no minimum sentence. See Neb. Rev. Stat. § 28-106 (Reissue 

2016). Criss was sentenced to 365 days’ imprisonment for 

the Class I misdemeanor. This sentence was also within the 

statutory limits. Consequently, our analysis of whether Criss’ 

sentences are excessive is limited to a review for abuse of discretion. See State v. Starks, supra.

[4-6] In reviewing whether an abuse of discretion occurred 

during sentencing, an appellate court determines whether the 

sentencing court considered and applied the relevant factors and any applicable legal principles in determining the 
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sentences to be imposed. Id. The relevant factors for a sentencing judge to consider when imposing a sentence 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. State v. Morton, supra. The sentencing court is not 

limited to any mathematically applied set of factors, but the 

appropriateness of the sentence is necessarily a subjective 

judgment that includes the sentencing judge’s observations of 

the defendant’s demeanor and attitude and all the facts and 

circumstances surrounding the defendant’s life. Id.

Criss argues that the trial court failed to adequately account 

for mitigating factors, such as his age, substance abuse, mental 

health, and lack of education, and instead focused its sentencing decision primarily on the nature of the offenses.

At the sentencing hearing, the court acknowledged receipt 

of the presentence investigation report and heard argument 

from counsel. Prior to sentencing Criss, the court noted that 

the offenses, which included use of a gun, were serious. It 

also acknowledged that Criss was young, but that he had been 

given “chances in the past.” The court stated that Criss had 

absconded from probation several years earlier and that it did 

not think probation was an option. It noted that he was an 

active, documented gang member and, according to the presentence investigation, was a danger to the community and at 

high risk to reoffend. The court also stated that it takes a lot of 

things into consideration when determining a sentence and that 

here, anything less than a period of incarceration would seriously depreciate the seriousness of the offense.

[7,8] Based on the record before us, the trial court took the 

appropriate factors into consideration when sentencing Criss 

and there is no indication it considered any inappropriate or 

improper factors. It is not this court’s function to conduct a 

de novo review and a reweighing of the sentencing factors 
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in the record. State v. Starks, 308 Neb. 527, 955 N.W.2d 313 

(2021). Instead, it is enough for us to conclude that the trial 

court’s reasons for Criss’ sentences are not clearly untenable 

and do not unfairly deprive him of a substantial right and just 

result. See id. Accordingly, we conclude the trial court did not 

abuse its discretion in the sentences it imposed. Criss’ assignment of error fails.

We note that the State suggests that the trial court erred in 

ordering a determinate sentence for Criss’ Class I misdemeanor 

conviction. It contends that Neb. Rev. Stat. § 29-2204.02(5) 

(Reissue 2016) required the court to impose an indeterminate 

sentence for this offense. The statute provides:

For any sentence of imprisonment for a misdemeanor 

imposed consecutively or concurrently with a sentence 

of imprisonment for a Class III, IIIA, or IV felony for an 

offense committed on or after August 30, 2015, the court 

shall impose a determinate sentence within the applicable 

range in section 28-106 unless the person is also committed to the Department of Correctional Services in accordance with section 29-2204 for (a) a sentence of imprisonment for a Class III, IIIA, or IV felony committed prior to 

August 30, 2015, or (b) a sentence of imprisonment for a 

Class I, IA, IB, IC, ID, II, or IIA felony.

This court has previously addressed whether § 29-2204.02(5) 

applied in a case where the defendant was convicted of a 

Class I misdemeanor and Class IB and IIA felonies, but no 

Class III, IIIA, or IV felonies. In State v. Meyer, No. A-18-353, 

2019 WL 548644 (Neb. App. Feb. 12, 2019) (selected for 

posting to court website), the State asserted plain error, suggesting that because the defendant was sentenced for a Class I 

misdemeanor along with a term of imprisonment for a Class 

IB and IIA felony, he should have received an indeterminate 

sentence for the misdemeanor pursuant to § 29-2204.02(5). 

This court stated, “Here, [defendant] was sentenced for a 

misdemeanor, but there was no corresponding sentence for 

a Class III, IIIA, or IV felony.” Id. at *6. Accordingly, 
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§ 29-2204.02(5) does not apply to the facts of this case. We 

further explained:

According to its plain language, § 29-2204.02(5) 

applies when a trial court is imposing consecutive or 

concurrent sentences for a misdemeanor along with a 

Class III, IIIA, or IV felony. If that is the case, the sentencing court must impose a determinate sentence for the 

misdemeanor unless one of the exceptions set forth in the 

statute applies.

State v. Meyer, 2019 WL 548644 at *6. We therefore disagreed 

with the State’s assertion and found no plain error in the sentences imposed.

[9] Statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are 

plain, direct, and unambiguous. State v. Vanderford, 312 Neb. 

580, 980 N.W.2d 397 (2022). Similarly, it is not within the 

province of the courts to read meaning into a statute that is not 

there or to read anything direct and plain out of a statute. Id.

In the present case, Criss was sentenced for a misdemeanor, 

but there was no corresponding sentence for a Class III, IIIA, 

or IV felony. Based on the plain and ordinary meaning of the 

statutory language in § 29-2204.02(5), the statute does not 

apply to the facts of this case because the sentence of imprisonment for the misdemeanor was not imposed consecutively 

or concurrently with a sentence of imprisonment for a Class 

III, IIIA, or IV felony. The dissent’s conclusion to the contrary 

requires ignoring the plain language in § 29-2204.02(5).

[10] The dissent also states that we have read the language 

in § 29-2204.02(5) to mean that before an indeterminate 

sentence can be imposed for a misdemeanor, there must be 

a conviction for not only a Class I, IA, IB, IC, ID, II, or 

IIA felony (high level felony), but a Class III, IIIA, or IV 

felony (low level felony) as well. We do not agree with this 

characterization. We are simply not reading § 29-2204.02(5) 

to say that the trial court was required to impose an 
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indeterminate sentence in this instance, since we conclude 

the statute does not apply at all. We are not making a broad 

assertion that a trial court could never impose an indeterminate sentence for a misdemeanor when it is imposed concurrently or consecutively with a Class I, IA, IB, IC, ID, II, or 

IIA felony. Courts have the authority to impose an indeterminate sentence for a misdemeanor as long as the offender 

is required to serve his or her time under the jurisdiction of 

the Department of Correctional Services, see State v. Kess, 

9 Neb. App. 353, 613 N.W.2d 20 (2000), so if misdemeanor 

and Class I, IA, IB, IC, ID, II, or IIA felony sentences are 

imposed at the same time, to be served in prison rather than 

jail, the trial court could impose an indeterminate sentence. 

In this case, we are saying only that it was not plain error 

for the court to sentence as it did, especially given its specific instructions that the misdemeanor sentence was to be 

served first. Our holding is more limited than the dissent 

suggests. We are saying only that we cannot read out of 

§ 29-2204.02(5) the requirement that a sentence of imprisonment for a misdemeanor must be imposed consecutively to or 

concurrently with a sentence of imprisonment for a Class III, 

IIIA, or IV felony before that statutory provision can even be 

applied and that therefore, we find the statute inapplicable 

to our case. See State v. Yzeta, 313 Neb. 202, 983 N.W.2d 

124 (2023) (court will not read meaning into statute that is 

not warranted by legislative language or read anything plain, 

direct, or unambiguous out of statute).

CONCLUSION

We conclude that the trial court did not abuse its discretion 

in sentencing Criss. Accordingly, Criss’ convictions and sentences are affirmed.

Affirmed.

Arterburn, Judge, concurring in part, and in part dissenting.

I concur and join in that part of the majority opinion 

which affirms the sentence imposed by the district court as 
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to count I, attempted possession of a firearm by a prohibited 

person. However, I agree with the contention of the State that 

the district court committed plain error by sentencing Criss 

to a determinate sentence on count II, carrying a concealed 

weapon. Therefore, I respectfully dissent from that portion of 

the majority opinion which affirms the district court’s sentence 

for that conviction. Based on my reading of § 29-2204.02, the 

district court should have imposed an indeterminate sentence 

on count II. As such, I believe the sentence on count II should 

be vacated and the cause remanded for resentencing on that 

count only.

In State v. Wells, 28 Neb. App. 118, 940 N.W.2d 847 (2020), 

this court found that the district court erred when it imposed 

determinate sentences for five misdemeanor convictions where 

those sentences were imposed concurrently with each other 

but consecutively to sentences imposed for two Class II felony 

convictions and one Class IIIA felony conviction. We found 

that the sentences imposed for the misdemeanor convictions 

should have been indeterminate sentences. In so doing, we 

found that normally, when a sentence for a misdemeanor conviction is imposed consecutively or concurrently with one for 

a Class IIIA felony, a determinate sentence must be imposed. 

We found, however, that “§ 29-2204.02(5) provides an exception to the determinate sentences, because [the defendant] was 

also committed to the Department of Correctional Services 

for sentences of imprisonment on his convictions for his 

Class II felonies.” State v. Wells, 28 Neb. App. at 132-33, 940 

N.W.2d at 856. Left unresolved by that opinion is whether 

§ 29-2204.02(5) requires determinate or indeterminate sentences to be imposed for misdemeanor convictions where 

the only felony conviction for which the defendant is being 

sentenced is one that requires that an indeterminate sentence 

be imposed, as is the case here. Section 29-2204.02(5) again 

reads as follows:

For any sentence of imprisonment for a misdemeanor 

imposed consecutively or concurrently with a sentence 
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of imprisonment for a Class III, IIIA, or IV felony for an 

offense committed on or after August 30, 2015, the court 

shall impose a determinate sentence within the applicable 

range in section 28-106 unless the person is also committed to the Department of Correctional Services in accordance with section 29-2204 for (a) a sentence of imprisonment for a Class III, IIIA, or IV felony committed prior to 

August 30, 2015, or (b) a sentence of imprisonment for a 

Class I, IA, IB, IC, ID, II, or IIA felony.

For the sake of clarity, I will refer to Class III, IIIA, and 

IV felonies as being “low level felonies.” Sentences for these 

felonies must be determinate with a period of supervised 

release imposed thereafter unless they are imposed concurrently or consecutively with a Class I, IA, IB, IC, ID, II, or 

IIA felony. See § 29-2204.02(4). I will refer to these offenses 

as “high level felonies.” Offenders falling in this category 

must receive indeterminate sentences. Under that sentencing 

scheme, the lower number of the sentence determines parole 

eligibility, with the higher number determining a date for 

absolute release. In adopting § 29-2204.02(4), the Legislature 

clearly did not want individuals who were being sentenced for 

both low level and high level felonies to be placed on both 

supervised release (administered by the courts via the probation office) and parole (administered by the Department of 

Correctional Services). The Legislature thus determined that 

when sentences are imposed on both low level and high level 

felonies, indeterminate sentences are required. This requirement also ensures that a minimum and maximum sentence 

exists on the low level felonies so that dates for parole eligibility and absolute discharge can be determined as to all convictions. Without an indeterminate sentence, the Department 

of Correctional Services is without sufficient information to 

know when those dates occur.

The majority reads the language of § 29-2204.02(5) to 

mean that before an indeterminate sentence could be imposed 

on a misdemeanor, there must be not only a conviction 
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for a high level felony, but one for a low level felony as well. 

That view of the plain language tracks with our wording in 

State v. Wells, 28 Neb. App. 118, 940 N.W.2d 847 (2020). 

The statute states that offenders receiving misdemeanor sentences running consecutively or concurrently with low level 

felony sentences must receive determinate sentences. The statute states this to be the case unless the person is also sentenced 

for a high level felony. So the majority reads the presence of 

a low level felony to be a prerequisite before an indeterminate 

sentence can be imposed.

I do not read the statute to require this result. I can find 

no explanation of why it would be important to have indeterminate sentences imposed on misdemeanors only where sentences for both a low level felony and a high level felony are 

also imposed but not where there is no low level felony conviction. Thus, I agree with the State that the statute should be 

read to require the imposition of an indeterminate sentence 

any time a misdemeanor sentence is to run concurrent with 

or consecutive to a high level felony. Such a reading gives 

credence to the overall design of the entirety of § 29-2204.02 

where the Legislature’s purpose is to have offenses of all 

levels imposed using a unified framework when they are 

imposed together. The framework is top down. If a high 

level felony is to be sentenced, all low level felonies are to 

be sentenced in accord therewith so that parole and absolute 

discharge dates can be determined. If the highest grade of 

offense is a low level felony, then determinate sentences must 

be given so as to establish a date at which time supervised 

release will begin.

I believe the State’s position is bolstered by prior law. Prior 

to the passage of 2015 Neb. Laws, L.B. 605, all criminal 

offenses were to be sentenced in accord with Neb. Rev. Stat. 

§ 29-2204(1)(A) and (B) (Cum. Supp. 2014). Under that statutory scheme, the sentencing court had the option to impose 

either an indeterminate or a determinate sentence. However, 

if a determinate sentence was imposed, the term imposed 
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was deemed to be the maximum term, with the minimum 

term being the minimum sentence provided by law. So, for 

example, if the district court sentenced a person to 40 years’ 

imprisonment on a Class II felony, the sentence was deemed 

to be imprisonment for 1 to 40 years. Parole eligibility would 

begin after the person sentenced served half of the minimum 

term, with absolute discharge being required once half of the 

maximum sentence was served (assuming no loss of good time 

credit). Provision was thus made for a determination of parole 

eligibility even if a determinate sentence was imposed. See

State v. Schnabel, 260 Neb. 618, 618 N.W.2d 699 (2000).

This court considered two cases which addressed whether the 

scheme laid out in in the pre-2014 version of § 29-2204(1)(A) 

also applied to misdemeanors. In State v. Alford, 6 Neb. App. 

969, 578 N.W.2d 885 (1998), we addressed whether a court 

could impose an indeterminate sentence to a county jail. Our 

finding is summarized in the later case of State v. Kess, 9 Neb. 

App. 353, 613 N.W.2d 20 (2000). Therein we stated:

In State v. Alford, we held that even though § 29-2204 

(Reissue 1995) contains no express prohibition against 

sentencing a misdemeanant to an indeterminate sentence in county jail, Nebraska generally affords different treatment to inmates confined in city and county 

facilities from that afforded to those confined to state 

facilities under the Department of Correctional Services. 

We concluded that because of this disparate treatment, 

§ 29-2204 (Reissue 1995) does not authorize the imposition of an indeterminate sentence to a facility outside the 

jurisdiction of the Department of Correctional Services. 

Therefore, we implicitly held that § 29-2204 (Reissue 

1995) authorizes the imposition of an indeterminate sentence for a misdemeanor if the court sentenced the 

defendant within the jurisdiction of the Department of 

Correctional Services.

State v. Kess, 9 Neb. App. at 356-57, 613 N.W.2d at 23.
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In Kess, we then affirmed an indeterminate sentence that 

was imposed for a misdemeanor conviction where the sentence 

was ordered to be served in the Department of Correctional 

Services consecutively to an indeterminate sentence for a 

felony conviction. Thus, even though we found that the express 

language of § 29-2204 did not prohibit a court from imposing an indeterminate sentence for a misdemeanor, the implications of such a sentence prevented its imposition if the 

sentence was not under the jurisdiction of the Department of 

Correctional Services.

The current scenario presents similar considerations. The 

design of § 29-2204.02 as a whole is to set out parameters so that terms of incarceration for multiple offenses 

can be served such that the appropriate dates for release can 

be determined, whether that be supervised release, if only 

determinate sentences are imposed, or release on parole and 

absolute release, if indeterminate sentences are imposed. As 

a result, it is important that all sentences imposed be either 

wholly determinate or wholly indeterminate. It violates the 

overall scheme and creates confusion for a determinate sentence to be imposed on a misdemeanor in conjunction with 

an indeterminate sentence on a felony. I note that our current 

sentencing statutes contain no provision that deems that the 

statutory minimum be considered the minimum on a determinate sentence. Determinate sentences only have one number. 

Thus, there is no guidance in the current statutory structure 

as to how parole would be determined for a person sentenced 

to a determinate misdemeanor sentence and an indeterminate 

felony sentence.

The majority applies what it sees as the plain language of 

§ 29-2204.02(5). While I understand this approach,

[p]enal statutes must be strictly construed and are 

considered in the context of the object sought to be 

accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served. A court 

must place on a statute a reasonable construction which 
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best achieves the statute’s purpose, rather than a construction which would defeat that purpose.

State v. Godek, 312 Neb. 1004, 1011, 981 N.W.2d 810, 

816 (2022).

Here, in my view, the purpose of § 29-2204.02 is only met 

by requiring that a misdemeanor sentence be indeterminate 

when imposed concurrently or consecutively to an indeterminate sentence given on a high level felony, whether or not a 

low level felony is also being sentenced in conjunction therewith. Therefore, I would vacate the sentence and remand the 

cause for resentencing on count II only. I respectfully dissent 

from the majority’s decision as to count II.