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Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

STATE v. FELIX

Cite as 26 Neb. App. 53

State of Nebraska, appellant, v. 

Olajuwon A. Felix, appellee.

___ N.W.2d ___

Filed June 26, 2018. No. A-17-1062.

1. Sentences: Appeal and Error. When reviewing a sentence within the 

statutory limits, whether for leniency or excessiveness, an appellate 

court reviews for an abuse of discretion.

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. A sentencing court is not limited in its discretion to any 

mathematically applied set of factors.

4. ____. 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.

5. ____. A sentencing court must have some reasonable factual basis for 

imposing a particular sentence.

6. Sentences: Appeal and Error. In determining whether a sentence is 

excessively lenient, an appellate court considers the following factors: 

(1) the nature and circumstances of the offense; (2) the history and 

characteristics of the defendant; (3) the need for the sentence imposed 

to afford deterrence; (4) the need for the sentence to protect the public 

from further crimes of the defendant; (5) the need for the sentence to 

reflect the seriousness of the offense, to promote respect for the law, and 

to provide just punishment for the offense; (6) the need for the sentence 

to provide the defendant with needed educational or vocational training, 

medical care, or other correctional treatment in the most effective manner; and (7) any other matters appearing in the record that the appellate 

court deems pertinent.

Nebraska Supreme Court Online Library

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

07/03/2018 01:10 AM CDT
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STATE v. FELIX

Cite as 26 Neb. App. 53

7. ____: ____. When reviewing sentences for excessive leniency, an appellate court does not review the sentence de novo and the standard is not 

what sentence it would have imposed.

Appeal from the District Court for Douglas County: Marlon

A. Polk, Judge. Affirmed.

Donald W. Kleine, Douglas County Attorney, and James M. 

Masteller for appellant.

Thomas C. Riley, Douglas County Public Defender, and 

Cindy A. Tate for appellee.

Riedmann, Bishop, and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

The State, through the Douglas County Attorney, appeals 

from a district court sentencing order after Olajuwon A. Felix 

entered pleas to five felony charges. The State argues that the 

sentences were excessively lenient. Finding no abuse of discretion, we affirm.

BACKGROUND

Felix was originally charged with count 1, manufacturing, 

distributing, or possession with intent to distribute marijuana; 

count 2, manufacturing, distributing, or possession with intent 

to distribute cocaine; count 3, manufacturing, distributing, or 

possession with intent to distribute methamphetamine; count 

4, possession with intent to distribute a Schedule IV or V controlled substance; count 5, possession with intent to distribute a 

Schedule IV or V controlled substance; count 6, possession of 

a deadly weapon by a prohibited person; count 7, possession of 

a deadly weapon by a prohibited person; and count 8, possession of a deadly weapon by a prohibited person. Pursuant to a 

plea agreement with the State, Felix agreed to plead no contest 

to an amended count 2, which changed the class of crime to a 
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Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

STATE v. FELIX

Cite as 26 Neb. App. 53

Class II felony, as well as to counts 3 and 6 through 8 as originally charged. Counts 1, 4, and 5 were dismissed.

According to the factual basis provided by the State at the 

plea hearing, a task force officer working for the Bureau of 

Alcohol, Tobacco, Firearms and Explosives utilized a confidential informant who made contact with Felix. On August 

2, 2016, the informant met Felix in the parking lot of a gas 

station and purchased 27.3 grams of cocaine and 1.7 grams of 

methamphetamine from Felix. On August 8, the informant met 

Felix in a parking lot and purchased a “Charter Arms .38 special revolver” from Felix. On August 10, the informant again 

met with Felix in a parking lot and purchased a “Kel-Tec 9 millimeter semiautomatic handgun” from him. On August 18, the 

informant again met with Felix in a parking lot and Felix sold 

him a “Sig Sauer .45 caliber handgun.” At all relevant times, 

Felix was a prohibited person by virtue of a previous felony 

conviction in April 2015. The district court accepted Felix’s 

pleas and found him guilty.

At sentencing, Felix argued that the court should impose 

the mandatory minimum sentence of 3 years’ imprisonment 

for the weapons convictions and asked that they run concurrently. He acknowledged that the convictions resulted from 

three separate offenses, but argued that the offenses occurred 

before his last prison sentence—he had been released from 

prison for just 6 days before he was arrested on the current charges.

The State noted that Felix accepted the opportunity to plead 

to five felony charges after he was originally charged with 

eight felonies. The State argued that not only did Felix sell 

cocaine and methamphetamine, but he also sold 59 Xanax pills 

to the informant, and that Felix contacted the informant on 

three separate occasions to sell him three separate guns. The 

State emphasized that Felix knew he was a convicted felon 

but chose to deal drugs and guns and argued that the sentences 

should not run concurrently because the offenses occurred on 

separate dates and involved separate guns.
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STATE v. FELIX

Cite as 26 Neb. App. 53

The court reviewed the presentence investigation report and 

then sentenced Felix to 1 to 1 year’s imprisonment on count 2, 

1 to 1 year’s imprisonment on count 3, 3 to 3 years’ imprisonment on count 6, 3 to 3 years’ imprisonment on count 7, and 3 

to 3 years’ imprisonment on count 8. The sentences on counts 

2 and 3 were to run concurrently, and the sentences on counts 

6 through 8 were to run concurrently, but the terms were to run 

consecutive to each other. In other words, Felix was sentenced 

to 1 to 1 year’s imprisonment and a consecutive term of 3 to 3 

years’ imprisonment, for a total of 4 to 4 years’ imprisonment, 

which includes the mandatory minimum of 3 years. He also 

received credit for 206 days served.

The State requested and received the Attorney General’s 

approval to appeal the sentences as excessively lenient pursuant to Neb. Rev. Stat. §§ 29-2320 and 29-2321 (Reissue 2016).

ASSIGNMENT OF ERROR

The State assigns that the district court abused its discretion 

by imposing excessively lenient sentences.

STANDARD OF REVIEW

[1,2] When reviewing a sentence within the statutory limits, whether for leniency or excessiveness, an appellate court 

reviews for an abuse of discretion. State v. Parminter, 283 

Neb. 754, 811 N.W.2d 694 (2012). 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

Pursuant to a plea agreement, Felix was convicted of two 

counts of manufacturing, distributing, or possession with intent 

to distribute a controlled substance, which is a Class II felony. 

See Neb. Rev. Stat. § 28-416 (Reissue 2016). Class II felonies 

are punishable by 1 to 50 years’ imprisonment. Neb. Rev. Stat. 

§ 28-105 (Reissue 2016). Felix was also convicted of three 
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STATE v. FELIX

Cite as 26 Neb. App. 53

counts of possession of a weapon by a prohibited person, 

which is a Class ID felony. See Neb. Rev. Stat. § 28-1206(3)(b) 

(Reissue 2016). This offense carries a mandatory minimum 

sentence of 3 years’ imprisonment up to a maximum of 50 

years’ imprisonment. § 28-105. Therefore, Felix’s sentences 

come within the statutory limits, and we review them for an 

abuse of discretion.

[3-5] A sentencing court is not limited in its discretion to 

any mathematically applied set of factors. State v. Parminter, 

supra. 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. Id. But the 

court must have some reasonable factual basis for imposing a 

particular sentence. Id.

[6] In determining whether the sentence is excessively 

lenient, we consider the following factors: (1) the nature and 

circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence imposed to 

afford deterrence; (4) the need for the sentence to protect the 

public from further crimes of the defendant; (5) the need for 

the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the 

offense; (6) the need for the sentence to provide the defendant 

with needed educational or vocational training, medical care, 

or other correctional treatment in the most effective manner; 

and (7) any other matters appearing in the record that the 

appellate court deems pertinent. State v. Parminter, supra. See 

Neb. Rev. Stat. § 29-2322 (Reissue 2016).

At first blush, we agree that Felix’s sentences appear lenient. 

He was convicted of two Class II felonies and three Class ID 

felonies, which stemmed from four separate incidents. He 

faced up to 250 years’ imprisonment; yet, he received the 

minimum period of incarceration for each count and concurrent 

sentences for four of his crimes. However, keeping in mind our 

standard of review and considering the applicable case law, we 
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STATE v. FELIX

Cite as 26 Neb. App. 53

cannot find that the sentencing court abused its discretion in 

the sentences imposed.

Generally, when the Nebraska appellate courts have concluded that a sentence is excessively lenient, the defendant’s 

present crimes and criminal history display significant violence or the defendant has committed multiple driving under 

the influence offenses and received probation, which has been 

determined to be insufficient to protect the safety of the public. 

See, e.g., State v. Parminter, 283 Neb. 754, 811 N.W.2d 694 

(2012); State v. Moore, 274 Neb. 790, 743 N.W.2d 375 (2008); 

State v. Rice, 269 Neb. 717, 695 N.W.2d 418 (2005); State v. 

Fields, 268 Neb. 850, 688 N.W.2d 878 (2004); State v. Hatt, 

16 Neb. App. 397, 744 N.W.2d 493 (2008). See, also, State v. 

Hamik, 262 Neb. 761, 635 N.W.2d 123 (2001); State v. Silva, 7 

Neb. App. 480, 584 N.W.2d 665 (1998).

None of those factors are present here. We recognize that 

Felix has an extensive history of failing to follow the law, 

which is particularly evidenced by numerous charges of driving during suspension and failure to appear. None of his 

charges have been violent, however. He has three prior felony convictions, for which he was sentenced to terms of 

incarceration.

In 2014, he was convicted of an amended charge of theft 

by receiving stolen property, a Class IV felony, and sentenced 

to 270 days’ incarceration. By virtue of this felony conviction, 

Felix was prohibited from possessing weapons. Four months 

after his release from incarceration, however, police found him 

in possession of a handgun and marijuana. In August 2014, 

police officers observed Felix and two other men sitting outside an abandoned residence. When the officers approached, 

all three men began to walk away, and the officers observed 

Felix holding the front of his waistband under his shirt. An 

officer told Felix to stop and show his hands, but Felix took off 

running. The officer gave chase, and as Felix was being “taken 

to the ground,” he observed Felix toss a firearm into the tree 

line. Marijuana was also located in Felix’s pants pocket. The 
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STATE v. FELIX

Cite as 26 Neb. App. 53

firearm was located and found to be loaded and unregistered. 

Felix was convicted of an amended charge of attempted possession of a firearm by a prohibited person, a Class II felony, 

and sentenced to 2 years’ imprisonment. For both of these felony convictions, Felix underwent presentence investigations, 

and at both times, he denied responsibility for his crimes and 

was assessed to be a high risk for rearrest.

In 2016, Felix was convicted of felony flight to avoid arrest 

and leaving the scene of a property damage accident. Charges 

of felony possession of a controlled substance and “Operating 

During Suspension” were dismissed. Felix was sentenced to 1 

year’s incarceration and 12 months’ postrelease supervision. 

Six days after his release from incarceration, however, he was 

arrested for the current offenses, which were the result of incidents that occurred before he began his 1-year sentence.

Accordingly, the record demonstrates that Felix has a history of breaking the law and failing to take responsibility for 

his actions. According to the presentence investigation report 

for the present convictions, however, Felix was assessed to be 

a high risk for rearrest but was a low risk for violence, antisocial behavior, aggressiveness, and stress coping; he has no 

drug or alcohol issues; and he has accepted responsibility for 

his actions. In a letter to the court included in the presentence 

investigation report, Felix admitted that he was the “middle 

man” selling drugs and guns in order to earn money to help his 

family. Additionally, and significantly, as noted above, his history does not suggest the level of aggressiveness and violence 

present in cases such as State v. Fields, 268 Neb. 850, 688 

N.W.2d 878 (2004), and State v. Silva, 7 Neb. App. 480, 584 

N.W.2d 665 (1998).

Moreover, we recognize that the State has a public safety 

interest in deterring repeat felons and that the purpose of statutes prohibiting the possession of firearms by convicted felons 

is to limit the possession of firearms by persons who, by their 

past commission of certain specified serious felonies, have 

demonstrated a dangerous disregard for the law and present a 
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STATE v. FELIX

Cite as 26 Neb. App. 53

potential threat of further or future criminal activity. See, State 

v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015); State v. 

Comeau, 233 Neb. 907, 448 N.W.2d 595 (1989).

But this is not a case where the defendant received probation and public safety remains at risk. The sentences imposed 

on Felix in the present case represent his longest period of 

incarceration. In addition, he must serve 3 of the 4 years of his 

prison sentence as a mandatory minimum for which he is not 

eligible to earn good time credit. See State v. Russell, 291 Neb. 

33, 863 N.W.2d 813 (2015) (good time credit not allowed until 

full amount of mandatory minimum term of imprisonment has 

been served).

[7] Although Felix’s history and the nature and circumstances of the present offenses certainly could have supported 

a longer term of incarceration, when reviewing sentences for 

excessive leniency, we do not review the sentence de novo and 

the standard is not what sentence we would have imposed. See 

State v. Antoniak, 16 Neb. App. 445, 744 N.W.2d 508 (2008). 

Keeping this standard in mind, we conclude that the sentences 

imposed do not constitute an abuse of discretion. We therefore affirm.

CONCLUSION

We conclude that the district court did not abuse its discretion in the sentences imposed. Accordingly, we affirm.

Affirmed.