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STATE v. ARTIS

Cite as 296 Neb. 172

State of Nebraska, appellee, v. 

Tareik Q. Artis, appellant.

___ N.W.2d ___

Filed March 24, 2017. No. S-16-464.

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.

Nebraska Supreme Court Online Library

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

06/16/2017 09:13 AM CDT
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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. Chapin, 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 bill1 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 

1 2016 Neb. Laws, L.B. 1094 (effective Apr. 20, 2016).
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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 presentencing 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 
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Cite as 296 Neb. 172

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 possession 

of a stolen firearm. This was done in exchange for the State’s 

dismissing the other two charges.

On April 11, 2016, Artis was sentenced to consecutive sentences of not less than 2 years nor more than 2 years of imprisonment for possession of a controlled substance and 15 to 20 

years’ imprisonment for possession of a stolen firearm. From 

these sentences, Artis timely appealed.

On August 4, 2016, the State filed a motion for summary 

affirmance, which the Nebraska Court of Appeals sustained 

on September 6. On that same date, the State filed a motion to 

withdraw its motion for summary affirmance and subsequently 

filed a motion for rehearing. The basis for these motions was 

the State’s belief that there may have been plain error in Artis’ 

sentence for possession of a controlled substance. In response, 

the Court of Appeals vacated its prior order and sustained the 

State’s motion for rehearing. Because the claim raised by the 

State was thought to be an issue of first impression, we moved 

the case to this court’s docket.2

III. ASSIGNMENTS OF ERROR

Artis assigns that the district court erred (1) by imposing excessive sentences and (2) by not making his sentences 

concurrent.

IV. STANDARD OF REVIEW

[1] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court.3

2 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).

3 State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015); State v. Cullen, 

292 Neb. 30, 870 N.W.2d 784 (2015); State v. Ortega, 290 Neb. 172, 859 

N.W.2d 305 (2015); State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 

(2013); State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
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[2,3] The interpretation of a statute is a question of law.4

When reviewing a question of law, an appellate court reaches a 

conclusion independent of the lower court’s ruling.5

V. ANALYSIS

We first review Artis’ assigned errors before considering 

the State’s contention that Artis’ sentence for his conviction of 

possession of a controlled substance, a Class IV felony, constitutes plain error.

1. Artis’ Assigned Errors

Artis assigns that the trial court erred in imposing excessive sentences and erred in failing to make his sentences concurrent. We note that Artis does not argue that his sentences 

exceed the statutory limits, but instead claims that the sentences are excessive in light of his age and “minimal criminal 

history.”6 He suggests that one concession the trial judge could 

have made was to make Artis’ sentences run concurrently 

rather than consecutively.

[4-6] 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. However, the sentencing court is not limited to 

any mathematically applied set of factors.7 The appropriateness of a sentence is necessarily a subjective judgment and 

includes the sentencing judge’s observation of the defendant’s 

4 In re Interest of D.I., 281 Neb. 917, 799 N.W.2d 664 (2011); D & S Realty 

v. Markel Ins. Co., 280 Neb. 567, 789 N.W.2d 1 (2010).

5 State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009); State v. Davis, 276 

Neb. 755, 757 N.W.2d 367 (2008).

6 Brief for appellant at 8.

7 State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).
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demeanor and attitude and all the facts and circumstances surrounding the defendant’s life.8

 Additionally, it is within the 

discretion of the trial court to impose consecutive rather than 

concurrent sentences for separate crimes.9 This is true even 

when the crimes arise out of the same incident.10

When the sentencing court imposed Artis’ sentences and 

made them consecutive, it was cognizant of Artis’ young 

age, but was concerned about Artis’ criminal history, which 

included two prior convictions for possession of a controlled 

substance and narcotics investigations dating back to 2010. 

The sentencing court also afforded significant weight to the 

potential danger caused by Artis’ fleeing from police in a 

public location while carrying a loaded firearm and two 

loaded magazines. After reviewing the record, we conclude 

that the district court did not abuse its discretion in imposing 

Artis’ sentences.

2. Plain Error

[7,8] 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.11 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.12 For the purpose of 

determining plain error, where the law at the time of trial was 

settled and clearly contrary to the law at the time of appeal, 

8 Id.

9 State v. Dixon, supra note 3.

10 See id.

11 State v. Bartholomew, 258 Neb. 174, 602 N.W.2d 510 (1999).

12 State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012); State v. Huff, 282 

Neb. 78, 802 N.W.2d 77 (2011); State v. Sellers, 279 Neb. 220, 777 

N.W.2d 779 (2010); State v. Mowell, 267 Neb. 83, 267 N.W.2d 389 

(2003); State v. Greer, 257 Neb. 208, 596 N.W.2d 296 (1999).
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it is enough that an error be “plain” at the time of appellate 

consideration.13

The State submits that Artis’ sentence for his Class IV felony was proper at the time it was imposed. However, the State 

asserts that due to the enactment of L.B. 1094, which went into 

effect on April 20, 2016, during the pendency of Artis’ appeal, 

Artis’ sentence may now constitute “plain error.”14 After the 

enactment of L.B. 1094, § 29-2204.02(4) now provides, in 

relevant part:

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

or IV felony for an offense committed on or after August 

30, 2015, imposed consecutively or concurrently with 

. . . (b) 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.

Although not enacted at the time Artis was sentenced, the 

State asserts that this version of § 29-2204.02 should apply to 

Artis’ sentence pursuant to the doctrine in State v. Randolph.

15

However, even if § 29-2204.02 applied to Artis’ sentence, his 

sentence would not constitute plain error, because the sentence 

for his Class IV felony complies with the relevant statutes 

under both L.B. 1094 and its predecessor, 2015 Neb. Laws, 

L.B. 605.

The State claims that there are three ways in which Artis’ 

sentence for his Class IV felony does not comply with the 

L.B. 1094 version of § 29-2204.02. First, the State claims that 

Artis’ sentence for his Class IV felony is a determinate sentence, while the L.B. 1094 version of § 29-2204.02 requires 

13 State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003), abrogated on other 

grounds, State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).

14 Brief for appellee at 8.

15 State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971).
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that Artis receive an indeterminate sentence. Second, the State 

suggests the amended version of § 29-2204.02(4) requires 

that the minimum term of Artis’ sentence for his Class IV 

felony be less than the maximum term and that therefore, 

Artis’ sentence does not comply. And, third, the State asserts 

that postrelease supervision could be imputed to Artis under 

the L.B. 605 version of the statutory scheme, which would be 

noncompliant with the L.B. 1094 version. We address each of 

these arguments in turn.

(a) Artis’ Sentence 

Is Indeterminate

[9-12] The State has mischaracterized Artis’ sentence of 

“not less than 2 years, nor more than 2 years” as a determinate 

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.16 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.17 Thus, 

for a Class IV felony, which has a minimum punishment of no 

imprisonment, the minimum term of a determinate sentence 

would be 0 year’s imprisonment.18 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.19

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.20 Thus, we conclude that 

Artis’ sentence for his Class IV felony is an indeterminate 

16 See State v. White, 256 Neb. 536, 590 N.W.2d 863 (1999).

17 Id.

18 Neb. Rev. Stat. § 28-105 (Reissue 2016); State v. White, supra note 16.

19 Id.

20 See, State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006); State v. 

Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999).
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sentence in which the minimum and maximum terms are 

the same. Such sentence complies with L.B. 1094’s requirement that the court impose an indeterminate sentence for a 

Class IV felony when that sentence is imposed consecutively 

with a Class IIA felony, and we therefore find no plain error 

in this regard.

(b) Term “Process” in 

§ 29-2204.02(4)

The State also claims that the current versions of Neb. Rev. 

Stat. § 29-2204(1) (Reissue 2016) and § 29-2204.02(4) require 

that the minimum term be less than the maximum term for 

Artis’ sentence for his Class IV felony. We disagree. Section 

29-2204(1) states:

Except when the defendant is found guilty of a Class IA 

felony, in imposing a sentence upon an offender for any 

class of felony other than a Class III, IIIA, or IV felony,

the court shall fix the minimum and the maximum terms 

of the sentence to be served within the limits provided 

by law. The maximum term shall not be greater than the 

maximum limit provided by law, and:

(a) The minimum term fixed by the court shall be any 

term of years less than the maximum term imposed by the 

court; or

(b) The minimum term shall be the minimum limit 

provided by law.

(Emphasis supplied.)

Although § 29-2204(1) expressly states that it does not 

apply to sentences for Class IV felonies, the State argues 

that § 29-2204.02(4) supersedes that exclusion, because 

§ 29-2204.02(4) is more specific than § 29-2204(1). As 

noted above, § 29-2204.02(4) provides that “the court shall 

impose an indeterminate sentence” for Class IV felonies 

imposed consecutively or concurrently with a sentence for a 

Class IIA felony “in accordance with the process set forth in 

section 29-2204.”
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The State suggests that the phrase “process set forth in section 29-2204” refers to the requirement in § 29-2204(1)(a) that 

the minimum term of an indeterminate sentence be less than 

the maximum term. However, § 29-2204.02(4) does not limit 

the process to only § 29-2204(1)(a), but references § 29-2204 

in general. Accordingly, in following the “process set forth in 

section 29-2204,” a sentencing court should review all subsections of § 29-2204, not just specific phrases or subsections. In 

reviewing § 29-2204, we note that subsection (1) specifically 

excludes Class IV felonies, and we are required to give effect 

to all parts of a statute and to avoid rejecting a word, clause, 

or sentence as superfluous or meaningless.21 Accordingly, we 

cannot accept the State’s interpretation, which would require 

the court to disregard part of the first sentence in § 29-2204(1). 

Because § 29-2204(1) excludes Class IV felonies, we conclude 

that §§ 29-2204 and 29-2204.02(4) do not require that Artis’ 

sentence for his Class IV felony have a minimum term less 

than the maximum term.

Our interpretation is supported by the legislative history 

of L.B. 1094, which is the bill that added § 24-2204.02(4). 

During at least one floor debate and at the judicial hearing, 

the bill’s introducers repeatedly indicated that L.B. 1094 was 

not meant to make any substantive changes to the sentencing scheme established by L.B. 605.22 Instead, L.B. 1094 is 

a “‘clean-up bill’” and was intended to eliminate some unintended effects of L.B. 605.23 One of those unintended effects 

was the possibility that a defendant who was sentenced consecutively or concurrently to multiple crimes would be subject 

21 See Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d 703 

(2013).

22 Judiciary Committee Hearing, L.B. 1094, 104th Leg., 1st Sess. 47 (Feb. 

4, 2016) (remarks of legal counsel to Judiciary Committee); Floor Debate, 

L.B. 1094, 104th Leg., 1st Sess. 25 (Mar. 23, 2016) (remarks of Senator 

Les Seiler).

23 Introducer’s Statement of Intent, L.B. 1094, 104th Leg., 1st Sess. (Feb. 4, 

2016).
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to both parole and postrelease supervision.24 According to the 

Judiciary Committee Statement, § 29.2204.02 was amended 

to prevent that situation and also to clarify that good time 

should not apply to postrelease supervision.25 Nothing within 

the legislative history suggests that § 29-2204.02 was meant 

to change the duration of punishment for offenders being sentenced to multiple crimes simultaneously.

Moreover, § 29-2204.02(4) applies only to certain offenders 

who are sentenced for multiple crimes. It would not limit the 

minimum term of sentences for offenders who have committed 

only one Class III, IIIA, or IV felony. Therefore, if the term 

“process” referred to only § 29-2204(1)(a), then the statutory 

scheme would allow, for example, an offender who committed 

multiple crimes to receive a more beneficial sentence for his 

or her Class IV felony than an offender who committed only 

a Class IV felony. We cannot say that is what the Legislature 

intended. Thus, § 29-2204.02(4) clearly refers to the entire 

statute § 29-2204.

As we read the statutes under L.B. 1094, there is nothing that 

requires the minimum term of Artis’ sentence for his Class IV 

felony to be less than the maximum term. Accordingly, Artis’ 

sentence appears to comply with L.B. 1094 in this respect.

(c) Postrelease Supervision

The State also suggests that Artis’ sentence may constitute 

plain error pursuant to the Randolph doctrine, because the version of § 29-2204.02 as amended by L.B. 1094 requires that 

Artis receive no period of postrelease supervision.26 Although 

the district court did not order postrelease supervision, the 

State is concerned that under the statutory scheme in effect at 

the time of Artis’ sentencing, a period of 9 months’ postrelease 

supervision could be imputed to him.

24 Committee Statement, L.B. 1094, 104th Leg., 1st Sess. 2, 5 (Feb. 4, 2016).

25 Id.

26 See State v. Randolph, supra note 15.
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However, even under L.B. 605, Artis is not subject to 

postrelease supervision. The L.B. 605 version of § 28-105(6) 

states, in relevant part, “Any person who is sentenced to 

imprisonment for a Class . . . IIA felony and sentenced concurrently or consecutively to imprisonment for a Class . . . IV 

felony shall not be subject to post-release supervision pursuant to subsection (1) of this section.” Here, Artis was sentenced to imprisonment for a Class IIA felony and sentenced 

consecutively to a Class IV felony, and the district court did 

not impose a period of postrelease supervision. Accordingly, 

the sentencing order was compliant with both L.B. 605 and 

L.B. 1094. Therefore, we find no plain error and affirm 

his sentences.

VI. CONCLUSION

For the foregoing reasons, the district court did not abuse 

its discretion in imposing Artis’ sentences and the sentence 

for his Class IV felony is not plainly erroneous. We therefore affirm.

Affirmed.