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308 Nebraska Reports

STATE v. STARKS

Cite as 308 Neb. 527

State of Nebraska, appellee. v. 

Gary L. Starks, appellant.

___ N.W.2d ___

Filed February 26, 2021. Nos. S-20-585 through S-20-587.

1. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within statutory limits unless the sentence was an abuse 

of discretion.

2. ____: ____. An abuse of discretion takes place when the sentencing 

court’s reasons or rulings are clearly untenable and unfairly deprive a 

litigant of a substantial right and a just result.

3. ____: ____. When a defendant challenges a sentence imposed by the 

district court as excessive and the State believes the sentence to be 

erroneous but has not cross-appealed in accordance with Neb. Rev. Stat. 

§ 29-2315.01 (Cum. Supp. 2020) or Neb. Rev. Stat. § 29-2321 (Reissue 

2016), an appellate court considers the State’s suggestion of error to the 

extent that the court chooses, at its option, to notice plain error.

4. Appeal and Error. Plain error exists where there is an error, plainly 

evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that 

to leave it uncorrected would cause a miscarriage of justice or result in 

damage to the integrity, reputation, and fairness of the judicial process.

5. Sentences: Appeal and Error. A sentence that is contrary to the court’s 

statutory authority is an appropriate matter for plain error review.

6. ____: ____. Whether a sentence is authorized by statute presents a question of law, which an appellate court reviews de novo.

7. ____: ____. 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 sentence to be imposed.

8. ____: ____. Relevant factors in determining whether an abuse of discretion occurred during sentencing may include the defendant’s (1) 

age, (2) mentality, (3) education and experience, (4) social and cultural 

Nebraska Supreme Court Online Library

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

03/19/2021 09:08 AM CDT
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STATE v. STARKS

Cite as 308 Neb. 527

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.

9. ____: ____. While the factors for determining whether an abuse of discretion occurred during sentencing should instruct a sentencing court, 

they do not comprise a mathematical formula that must be rigidly 

implemented. Rather, they are among the relevant factors that may 

be considered.

10. Sentences. A sentence should be tailored and based on factors that fit 

the offender and not merely the crime.

11. ____. The appropriateness of a sentence is necessarily a subjective judgment that includes the sentencing judge’s observation of the defendant’s 

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

12. 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.

13. Sentences. A determinate sentence is imposed when the defendant is 

sentenced to a single term of years.

14. ____. 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.

15. ____. 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.

16. Sentences: Appeal and Error. The failure to impose an indeterminate 

sentence when required to do so by statute constitutes plain error.

17. ____: ____. An appellate court has the power on direct appeal to remand 

a cause for the imposition of a lawful sentence where an erroneous one 

has been pronounced.

Appeal from the District Court for Douglas County: James 

T. Gleason, Judge. Affirmed in part, and in part vacated and 

remanded for resentencing.

Thomas C. Riley, Douglas County Public Defender, and Ann 

O. Petersen for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. STARKS

Cite as 308 Neb. 527

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Papik, JJ.

Heavican, C.J.

INTRODUCTION

Based on Gary L. Starks’ plea-based convictions for one 

Class IIA felony and three Class IV felonies, he was sentenced to consecutive terms of 8 to 16 years’ imprisonment 

for the Class IIA felony and 2 years’ imprisonment for each 

Class IV felony. Starks appeals the terms of his total sentence 

as excessive. The State notes that the determinate sentences 

for Starks’ Class IV felonies may have violated Neb. Rev. Stat. 

§ 29-2204.02 (Reissue 2016).

We affirm the sentence for Starks’ Class IIA felony, but 

vacate the sentences imposed for his Class IV felonies and 

remand the cause for resentencing.

BACKGROUND

In September 2019, Starks was charged by information with 

possession of a controlled substance, a Class IV felony. 1 The 

charge stemmed from the police’s discovery, during a routine 

traffic stop, of marijuana “joints” and .7 gram of methamphetamine in Starks’ vehicle. Starks pled guilty and, in February 

2020, was sentenced to 18 months’ probation.

Over the next 2 months, Starks failed to report for at least 

three scheduled appointments with his probation officer. He 

also failed to submit for drug tests and to apprise his probation officer of his places of employment. In June 2020, on the 

basis that Starks had violated his probation, the district court 

reinstated Starks’ Class IV felony charge for possession of a 

controlled substance. 2

While on probation, Starks was also charged with six 

counts of theft by shoplifting. The informations alleged that 

1 See Neb. Rev. Stat. § 28-416(3) (Supp. 2017).

2 See Neb. Rev. Stat. § 29-2268 (Cum. Supp. 2020).
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STATE v. STARKS

Cite as 308 Neb. 527

between December 2019 and March 2020, Starks had misappropriated merchandise from various retail stores. Based on 

the value of the items taken, and on Starks’ status as a repeat 

shoplifter, four shoplifting counts were charged as Class IV 

felonies and two shoplifting counts were charged as Class IIA 

felonies. 3

Represented by counsel, Starks appeared before the district 

court for Douglas County in June 2020. Starks informed the 

court that he had reached a plea agreement with the State.

Pursuant to the plea agreement, Starks pled guilty to violating his probation, a Class IV felony, and to three counts of 

shoplifting, including two Class IV felonies and one Class IIA 

felony. In exchange, the State dismissed Starks’ remaining 

charges. The court accepted Starks’ guilty pleas and ordered a 

presentence investigation (PSI). 4

A sentencing hearing was held on July 28, 2020. At the hearing, Starks’ counsel urged the court to impose a sentence “on 

the lower range” of what was statutorily authorized. Starks’ 

counsel noted that Starks’ offenses were nonviolent, that the 

PSI report had rated Starks as a low risk for violence and 

aggression, and that Starks’ behavior could be partly explained 

by the physical abuse he had suffered as a child and by his 

drug addiction and lack of stable housing as an adult.

Starks himself testified that while growing up, he had learned 

to steal to survive. As an adult, Starks pawned his stolen wares 

so that he could afford drugs and temporary housing. He stated 

that he was sorry for his actions and expressed a desire to “get 

help for my drug addiction. Using methamphetamine, I’ve been 

struggling with that for about, like, six years now.” Starks petitioned the court for “another opportunity out there in society” 

to become rehabilitated and to take care of his family, including his girlfriend and six children.

The State responded by observing that the PSI report indicated Starks was a “very high” risk to reoffend, that the value 

3 See Neb. Rev. Stat. § 28-518 (Reissue 2016).

4 See Neb. Rev. Stat. § 29-2261 (Cum. Supp. 2020).
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STATE v. STARKS

Cite as 308 Neb. 527

of goods he had shoplifted was significant, and that Starks had 

not consistently expressed remorse for his actions. The State, 

accordingly, recommended to the court a “straight sentence” 

of incarceration.

After noting that it had considered the PSI report and the 

parties’ arguments and testimony, the court ordered a sentence 

of incarceration for each offense. For Starks’ Class IIA felony 

conviction, he was sentenced to 8 to 16 years’ imprisonment, 

and for each Class IV felony conviction, he was sentenced to 

2 years’ imprisonment. Subject to 190 days’ credit for time 

served, the sentences were ordered to run consecutively from 

the date of sentencing.

Starks perfected timely appeals, which we moved to 

our docket. 5

ASSIGNMENT OF ERROR

Starks assigns that the district court imposed excessive 

sentences.

The State contests this assigned error but, in its responsive 

brief, notes that the determinate sentences for Starks’ Class 

IV felonies may have violated § 29-2204.02. Although the 

State has not cross-appealed Starks’ sentences on this basis, it 

requests that we notice plain error.

STANDARD OF REVIEW

[1,2] An appellate court will not disturb a sentence 

imposed within statutory limits unless the sentence was an 

abuse of discretion. 6 An abuse of discretion takes place when 

the sentencing court’s reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a 

just result. 7

5 See Neb. Rev. Stat. §§ 24-1106(3) and 25-1912 (Cum. Supp. 2020).

6 See State v. Clausen, 307 Neb. 968, 951 N.W.2d 764 (2020). See, also, 

Neb. Rev. Stat. § 29-2308(1) (Reissue 2016).

7 State v. McCulley, 305 Neb. 139, 939 N.W.2d 373 (2020).
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STATE v. STARKS

Cite as 308 Neb. 527

[3] When a defendant challenges a sentence imposed by the 

district court as excessive and the State believes the sentence 

to be erroneous but has not cross-appealed in accordance with 

Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2020) or Neb. Rev. 

Stat. § 29-2321 (Reissue 2016), an appellate court considers the State’s suggestion of error to the extent that the court 

chooses, at its option, to notice plain error. 8

[4-6] Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such 

a nature that to leave it uncorrected would cause a miscarriage 

of justice or result in damage to the integrity, reputation, and 

fairness of the judicial process. 9 A sentence that is contrary to 

the court’s statutory authority is an appropriate matter for plain 

error review. 10 Whether a sentence is authorized by statute 

presents a question of law, which we review de novo. 11

ANALYSIS

Excessive Sentences Claim

We begin by considering Starks’ claim that his sentences 

are excessive.

The first step in analyzing whether sentences are excessive is to examine the statutory limits on penalties for such 

offenses. 12 Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020) sets 

maximum penalties for the felony offenses at issue here. Under 

that statute, a Class IIA felony is punishable by a maximum 

term of 20 years’ imprisonment and a Class IV felony is punishable by a maximum term of 2 years’ imprisonment. 13

8 See State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).

9 See Clausen, supra note 6.

10 State v. Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020), modified on denial 

of rehearing 306 Neb. 498, 945 N.W.2d 888.

11 See State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).

12 See Clausen, supra note 6.

13 § 28-105(1).
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STATE v. STARKS

Cite as 308 Neb. 527

Starks was sentenced to 8 to 16 years’ imprisonment for 

his Class IIA felony and 2 years’ imprisonment for each of 

his Class IV felonies. Those sentences did not exceed the 

limits of § 28-105(1). Consequently, our analysis of whether 

Starks’ sentences are excessive is limited to a review for abuse 

of discretion. 14

Before imposing Starks’ sentences, the district court stated 

that it “ha[d] considered everything in the [PSI report]” and 

everything stated at the sentencing hearing. Starks characterizes this analysis as inadequate. He contends that it demonstrates the district court’s failure to adequately weigh various 

factors that mitigated the severity of his offenses. According to 

Starks, “the district court abused its discretion by tailoring the 

sentence to the crime, not the individual offender.” 15

[7,8] 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 sentence 

to be imposed. 16 Relevant factors in that analysis may include 

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. 17

[9-11] While these factors should instruct a sentencing 

court, they do not comprise a mathematical formula that 

must be rigidly implemented. 18 Rather, they are among the 

relevant factors that may be considered. 19 A sentence should 

14 See Clausen, supra note 6.

15 Brief for appellant at 5.

16 See State v. Stack, 307 Neb. 773, 950 N.W.2d 611 (2020).

17 See Clausen, supra note 6.

18 See State v. Gray, 307 Neb. 418, 949 N.W.2d 320 (2020).

19 See id. See, also, Clausen, supra note 6.
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STATE v. STARKS

Cite as 308 Neb. 527

be tailored and based on factors that “fit the offender and 

not merely the crime.” 20 The appropriateness of a sentence is 

necessarily a subjective judgment that includes the sentencing 

judge’s observation of the defendant’s demeanor and attitude 

and of all the facts and circumstances surrounding the defendant’s life. 21

Here, the sources cited in the district court’s order amply 

support the sentences that were imposed. Both the parties’ 

testimony and the PSI report provide highly personalized, 

relevant evidence about Starks’ life, character, and previous 

conduct. 22

And while some of that evidence mitigated the severity of 

Starks’ offenses, other evidence did not. The evidence revealed, 

for example, Starks’ lengthy criminal history, including previous convictions for drug use and theft; his troubling signs of 

drug and alcohol abuse and of antisocial behavior; and his 

resistance to rehabilitative efforts in the past, as demonstrated 

by his noncooperation with the terms of probation following 

his possession of a controlled substance conviction. These 

individualized factors led to a sentencing recommendation in 

the PSI report of a term of incarceration based on Starks’ “very 

high risk to re-offend.”

[12] It is not this court’s function to conduct a de novo 

review and a reweighing of the sentencing factors in the 

record. 23 Instead, it is enough for us to conclude that the district 

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

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

result. 24 We thus cannot say that Starks’ sentences are an abuse 

of discretion. Starks’ lone assigned error is without merit.

20 See State v. Gibson, 302 Neb. 833, 844, 925 N.W.2d 678, 686 (2019) 

(citing State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999)).

21 Clausen, supra note 6.

22 See State v. Hurd, 307 Neb. 393, 949 N.W.2d 339 (2020).

23 See State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020).

24 See id. See, also, Clausen, supra note 6.
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STATE v. STARKS

Cite as 308 Neb. 527

Plain Error Analysis

The State notes in its brief that even though Starks’ sentences are not excessive, the district court’s formulation of 

those sentences was, in part, erroneous. According to the State, 

the district court erred in rendering determinate sentences for 

each of Starks’ Class IV felonies.

[13-15] We recently explained the distinction between a 

determinate and indeterminate sentence:

“A determinate sentence is imposed when the defendant 

is sentenced to a single term of years, such as a sentence 

of 2 years’ imprisonment. . . . In contrast, 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. 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.” 25

Starks’ sentences for the Class IV felonies were determinate because they each consisted of a single term of 2 years’ 

imprisonment. The district court did not list a range of terms or 

minimum and maximum terms. For each Class IV felony, only 

a single period of incarceration—2 years—was ordered.

Accordingly, the State contends that the district court’s 

formulation of Starks’ sentences was plain error under Neb. 

Rev. Stat. § 29-2204 (Reissue 2016) and § 29-2204.02. Under 

§ 29-2204, the general rule is that the sentence for most 

felonies—except Class III, Class IIIA, and Class IV felonies—

should be indeterminate. In complement, § 29-2204.02(4) then 

provides an indeterminacy requirement for some Class III, 

Class IIIA, and Class IV felony sentences:

For any sentence of imprisonment for a Class III, IIIA, 

or IV felony for an offense committed on or after 

25 State v. Thompson, 301 Neb. 472, 483, 919 N.W.2d 122, 130 (2018) 

(quoting State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017), modified on 

denial of rehearing 296 Neb. 606, 894 N.W.2d 349).
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STATE v. STARKS

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August 30, 2015, imposed consecutively or concurrently 

with . . . a sentence of imprisonment for a Class I, IA, 

IB, IC, ID, II, or IIA felony, the court shall impose an 

indeterminate sentence within the applicable range in section 28-105 that does not include a period of post-release 

supervision, in accordance with the process set forth in 

section 29-2204.

(Emphasis supplied.)

For purposes of this indeterminacy requirement, it matters 

not when the underlying offenses occurred in relation to each 

other or that some of the relevant charges were brought via 

different charging documents. Section 29-2204.02(4) is broad 

enough that it theoretically could be read to impose an indeterminacy requirement upon a Class III, Class IIIA, or Class IV 

felony sentence imposed consecutively or concurrently with a 

Class I, IA, IB, IC, ID, II, or IIA felony sentence that is already 

in progress. What matters under § 29-2204.02(4) is that the 

sentences for those offenses are “imposed consecutively or 

concurrently” to each other.

On our de novo review, we agree with the State. Because 

Starks’ Class IIA and Class IV felony sentences were imposed 

consecutively, § 29-2204.02(4) required that the Class IV 

felony sentences be formulated as “indeterminate sentence[s].” 

Yet, Starks was sentenced to determinate terms of 2 years’ 

imprisonment. These sentences violated § 29-2204.02(4).

[16,17] The failure to impose an indeterminate sentence 

when required to do so by statute constitutes plain error. 26

An appellate court has the power on direct appeal to remand 

a cause for the imposition of a lawful sentence where an 

erroneous one has been pronounced. 27 We therefore find that 

Starks’ three sentences for Class IV felonies were plain error, 

26 See, Galvan, supra note 10; Guzman, supra note 8.

27 Guzman, supra note 8. See State v. Valdez, 305 Neb. 441, 940 N.W.2d 840 

(2020).
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Cite as 308 Neb. 527

and we vacate those sentences and remand the cause to the 

district court for resentencing.

CONCLUSION

We vacate in their entirety the sentences imposed by the 

district court for Starks’ three Class IV felonies. We otherwise affirm the judgment of the district court and remand the 

cause to the district court for resentencing for Starks’ three 

Class IV felonies.

Affirmed in part, and in part vacated 

and remanded for resentencing.

Freudenberg, J., not participating.

Cassel, J., concurring.

Because (1) the court today correctly holds that Neb. 

Rev. Stat. § 29‐2204.02(4) (Reissue 2016) applies to charges 

“brought via different charging documents,” i.e., in separately 

docketed cases; (2) this court has characterized the failure to 

impose an indeterminate sentence when required to do so by 

statute as plain error 1; and (3) it is not unusual for the sentencing judgment in a particular case to record only the sentence(s) 

imposed in that case, I make two suggestions. An appellate 

court should be careful to find plain error only where it is 

reasonably certain it has the “whole picture.” A sentencing 

court should craft its judgment in each case with some thought 

regarding how that judgment, viewed in isolation, might appear 

to an appellate court.

1 See State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020). See, also, 

State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018).