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STATE v. VALDEZ

Cite as 305 Neb. 441

State of Nebraska, appellee, v. 

Jose A. Valdez, appellant.

___ N.W.2d ___

Filed April 3, 2020. No. S-19-475.

1. Judgments: Appeal and Error. When dispositive issues on appeal 

present questions of law, an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision of the court 

below.

2. Prior Convictions: Motor Vehicles: Homicide: Sentences: Evidence.

Evidence of a prior conviction must be introduced in order to enhance a 

sentence for motor vehicle homicide.

3. Sentences. A sentence is illegal when it is not authorized by the judgment of conviction or when it is greater or less than the permissible 

statutory penalty for the crime.

4. Prior Convictions: Evidence: Appeal and Error. Where an appellate court determines that the evidence was insufficient to establish a 

qualifying prior conviction, the appellate court’s determination does not 

act as an acquittal or preclude a trial court from receiving additional 

evidence of a qualifying prior conviction.

5. Waiver: Words and Phrases. A waiver is the voluntary and intentional 

relinquishment of a known right, privilege, or claim, and may be demonstrated by or inferred from a person’s conduct.

6. Waiver: Estoppel. To establish a waiver of a legal right, there must be 

a clear, unequivocal, and decisive act of a party showing such a purpose, 

or acts amounting to an estoppel on his or her part.

Appeal from the District Court for Madison County: Mark 

A. Johnson, Judge. Sentence vacated, and cause remanded 

with direction.

Matthew A. Headley, Madison County Public Defender, for 

appellant.

Nebraska Supreme Court Online Library

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

05/08/2020 12:15 AM CDT
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STATE v. VALDEZ

Cite as 305 Neb. 441

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

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

and Papik, JJ.

Funke, J.

Jose A. Valdez appeals his conviction and sentence from 

the district court for Madison County. Valdez pled guilty 

to enhanced motor vehicle homicide, a Class II felony. The 

court accepted Valdez’ guilty plea, subject to enhancement, 

which the parties agreed to address at the time of sentencing. 

At the sentencing hearing, the issue of enhancement was not 

addressed and no evidence was adduced on the matter, but the 

court treated the offense as enhanced and sentenced Valdez 

to a period of 24 to 25 years’ imprisonment and revoked his 

driver’s license for 15 years.

Valdez argues that the district court erred in failing to 

receive evidence of a prior conviction, as required to subject him to enhancement penalties under Neb. Rev. Stat. 

§ 28-306(3)(c) (Reissue 2016). Valdez contends that the sentence should be vacated and the matter remanded to the district 

court for resentencing as a Class IIA felony. The State agrees 

that the district court erred in failing to hold an enhancement 

hearing, but claims that the appropriate remedy is to remand 

for a new enhancement and sentencing hearing. We remand 

the cause with direction for a new enhancement and sentencing hearing.

BACKGROUND

On the evening of December 8, 2017, in Norfolk, Nebraska, 

Valdez attended a holiday gathering where he consumed alcohol to the point that his ability to operate a vehicle became 

appreciably diminished. He left the party and drove east on 

a highway until he attempted to turn left at an intersection. 

Valdez turned left and crashed into the driver’s side of a vehicle traveling west in the outside lane of the highway.
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STATE v. VALDEZ

Cite as 305 Neb. 441

Upon arrival, officers observed Valdez sitting in the passenger seat of his vehicle, which had extensive front-end damage and sat off the roadway. An officer spoke with Valdez and 

observed that he was slurring his words, that his eyes were 

bloodshot and watery, and that he had alcohol on his breath. 

Valdez admitted to drinking earlier. Another vehicle was 

located in the intersection which had its driver’s side ripped 

open. The driver of the second vehicle was unresponsive at the 

scene. She was taken to a hospital and died from her injuries 

approximately 1 week later.

Valdez was transported to the emergency room of a Norfolk 

hospital. A police officer with the Norfolk Police Department 

had Valdez’ blood drawn pursuant to a search warrant. Valdez 

had a blood alcohol content of .223 of a gram of alcohol per 

100 milliliters of blood.

Valdez was charged with motor vehicle homicide. The State 

alleged that Valdez was operating the motor vehicle in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2010) or Neb. Rev. 

Stat. § 60-6,197.06 (Cum. Supp. 2016) and that Valdez had a 

prior conviction of § 60-6,196 or § 60-6,197.06, which would 

enhance the charge to a Class II felony. Valdez pled guilty to 

the offense, and in exchange for his plea, the State agreed to 

recommend a maximum sentence of 25 years’ imprisonment 

and not pursue additional charges or restitution. The district 

court accepted Valdez’ plea and found him guilty subject to an 

enhancement hearing. The parties agreed to take up the issue 

of enhancement at sentencing, and the court set the matter for 

a sentencing hearing. During sentencing, the court considered 

the offense to be enhanced to a Class II felony and sentenced 

Valdez to a period of 24 to 25 years’ imprisonment, with 1 day 

of credit for time served, and revoked his driver’s license for 15 

years. However, although in its comments the court referred to 

the fact that Valdez has two prior convictions for driving under 

the influence (DUI), the court did not receive any evidence 

regarding the prior convictions and the parties did not address 

enhancement prior to the court’s pronouncement of sentence.
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STATE v. VALDEZ

Cite as 305 Neb. 441

ASSIGNMENTS OF ERROR

Valdez assigns that the district court erred in (1) finding 

him guilty of motor vehicle homicide, a Class II felony, absent 

proof of enhancement and (2) imposing an excessive sentence. 

Valdez also argues that his trial counsel was ineffective for 

failing to (3) file a motion to suppress the blood test results, 

(4) file a motion for recusal of the trial court, (5) object to evidence introduced by the State at sentencing, and (6) make an 

effective argument at sentencing.

STANDARD OF REVIEW

[1] When dispositive issues on appeal present questions of 

law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. 1

ANALYSIS

The issue in this case is whether upon remand the trial 

court may conduct a new enhancement hearing. Valdez argues 

that his current sentence is invalid, because the court did not 

receive any evidence on the issue of enhancement, and that 

based on the State’s failure to present evidence, the court 

should have found him guilty of a Class IIA felony and sentenced him accordingly. He requests that we remand with 

instructions for resentencing on the reduced charge. The State 

agrees that remand is required but claims that pursuant to State 

v. Oceguera,

 2 the appropriate remedy is to remand for a new 

enhancement and sentencing hearing.

A person commits motor vehicle homicide when he or she 

causes the death of another unintentionally while engaged in 

the operation of a motor vehicle in violation of the law of the 

State of Nebraska or in violation of any city or village ordinance. 3 Pursuant to § 28-306(3)(b), if the proximate cause of 

the death of another is the operation of a motor vehicle in violation of § 60-6,196 (DUI) or § 60-6,197.06 (operating motor 

1 State v. Oceguera, 281 Neb. 717, 798 N.W.2d 392 (2011).

2 Id.

3 § 28-306(1).
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Cite as 305 Neb. 441

vehicle during revocation period), motor vehicle homicide is a 

Class IIA felony. Pursuant to § 28-306(3)(c), if the proximate 

cause of the death of another is the operation of a motor vehicle 

in violation of § 60-6,196 or § 60-6,197.06 and the defendant has a prior conviction for a violation of § 60-6,196 or 

§ 60-6,197.06, motor vehicle homicide is a Class II felony.

In a proceeding to enhance a punishment because of prior 

convictions, the State has the burden to prove such prior convictions. 4 Usually, the State will prove a defendant’s prior 

convictions by introducing certified copies of the prior convictions or transcripts of the prior judgments. 5 The existence 

of a prior conviction and the identity of the accused as the 

person convicted may be shown by any competent evidence, 

including the oral testimony of the accused and duly authenticated records maintained by the courts or penal and custodial authorities. 6

[2] We find that enhancement of a motor vehicle homicide 

sentence is analogous to habitual criminal enhancement and 

enhancement of a DUI sentence. In each of these contexts, 

the Legislature has provided for the use of prior convictions 

to enhance a sentence. 7 Under § 60-6,197.02(2), the prosecutor is required to present as evidence for purposes of sentence 

enhancement a court-certified or authenticated copy of the 

defendant’s prior conviction, which shall be prima facie evidence of such prior conviction. Under § 60-6,197.02(3), the 

court shall, as part of the judgment of conviction, make a finding on the record as to the number of the convicted person’s 

prior convictions. The convicted person shall be given the 

opportunity to review the record of his or her prior convictions, bring mitigating facts to the attention of the court prior 

4 State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004); State v. Ristau, 245 

Neb. 52, 511 N.W.2d 83 (1994).

5 Ristau, supra note 4.

6 Thomas, supra note 4.

7 See, § 28-306(3)(c); Neb. Rev. Stat. § 29-2221(2) (Reissue 2016); Neb. 

Rev. Stat. § 60-6,197.02(2) (Cum. Supp. 2018).
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Cite as 305 Neb. 441

to sentencing, and make objections on the record regarding the 

validity of such prior convictions. 8 We conclude that just as 

in the context of habitual criminal and DUI sentence enhancements, evidence of a prior conviction must be introduced in 

order to enhance a sentence for motor vehicle homicide. 9

[3] The State charged Valdez with motor vehicle homicide, 

a Class II felony under § 28-306(3)(c). A Class II felony is 

punishable by 1 to 50 years’ imprisonment. 10 Valdez claims 

that his offense was improperly enhanced to a Class II felony, 

because the State introduced no evidence of a prior conviction under § 60-6,196 or 60-6,197.06. He claims that without 

such evidence, the court could have found him guilty only of 

a Class IIA felony under § 28-306(3)(b). A Class IIA felony 

is punishable by 0 to 20 years’ imprisonment. 11 A sentence is 

illegal when it is not authorized by the judgment of conviction 

or when it is greater or less than the permissible statutory penalty for the crime. 12 It is undisputed that the trial court did not 

receive evidence necessary to subject Valdez to the enhanced 

penalties under § 28-306(3)(c) and that Valdez’ sentence to a 

period of 24 to 25 years’ imprisonment exceeds the statutory 

limits for a Class IIA felony. Therefore, Valdez’ sentence is 

illegal and must be vacated.

The only question that remains is the appropriate remedy 

for the State’s failure to adduce evidence of a prior conviction. Under our precedent, we have consistently remanded 

for a new enhancement hearing when the State has failed to 

produce sufficient evidence of the requisite prior convictions 

for enhancement purposes. 13 While we have not previously 

8 § 60-6,197.02(3).

9 See Oceguera, supra note 1.

10 Neb. Rev. Stat. § 28-105(1) (Reissue 2016).

11 Id.

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

13 See, State v. Bruckner, 287 Neb. 280, 842 N.W.2d 597 (2014); Oceguera, 

supra note 1; State v. Hall, 268 Neb. 91, 679 N.W.2d 760 (2004); State v. 

Nelson, 262 Neb. 896, 636 N.W.2d 620 (2001); Ristau, supra note 4.
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Cite as 305 Neb. 441

addressed this issue in the context of motor vehicle homicide, 

we have found in the context of habitual criminal enhancement 

and enhancement of a DUI sentence that the appropriate remedy is to remand for another enhancement hearing. 14

In Oceguera, the State failed to present sufficient evidence 

of three valid prior DUI convictions to support a conviction 

for a fourth offense and we remanded for a new enhancement 

hearing. 15 In doing so, we recognized that neither our prior 

case law nor any federal constitutional law prohibits a new 

enhancement hearing. 16 An enhanced sentence imposed on a 

persistent offender is not viewed as either a new jeopardy or 

an additional penalty for the earlier crimes, but as a stiffened 

penalty for the latest crime, which is considered to be an aggravated offense because it is a repetitive one. 17

The U.S. Supreme Court has said that except in capital 

cases, a failure of proof at an enhancement hearing is not 

analogous to an acquittal, and that such a failure of proof 

does not trigger double jeopardy protections. 18 Following U.S. 

Supreme Court precedent, numerous state appellate courts have 

held that double jeopardy protections do not apply to sentence 

enhancement hearings and do not prevent the presentation of 

evidence of a prior conviction at a new enhancement hearing 

on remand. 19

14 See, Oceguera, supra note 1; Nelson, supra note 13.

15 Oceguera, supra note 1.

16 Id. (relying on Monge v. California, 524 U.S. 721, 118 S. Ct. 2246, 141 L. 

Ed. 2d 615 (1998)).

17 Gryger v. Burke, 334 U.S. 728, 68 S. Ct. 1256, 92 L. Ed. 1683 (1948).

18 Monge, supra note 16.

19 See, Scott v. State, 454 Md. 146, 164 A.3d 177 (2017); State v. Salas, 2017 

NMCA 057, 400 P.3d 251 (2017); People v. Porter, 348 P.3d 922 (Colo. 

2015); State v. Collins, 985 So. 2d 985 (Fla. 2008); State v. Eggleston, 

164 Wash. 2d 61, 187 P.3d 233 (2008); Com. v. Wilson, 594 Pa. 106, 934 

A.2d 1191 (2007); Jaramillo v. State, 823 N.E.2d 1187 (Ind. 2005); State 

v. McLellan, 149 N.H. 237, 817 A.2d 309 (2003); Nelson, supra note 13; 

Bell v. State, 994 S.W.2d 173 (Tex. Crim. App. 1999); People v. Levin, 157 

Ill. 2d 138, 623 N.E.2d 317, 191 Ill. Dec. 72 (1993).
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STATE v. VALDEZ

Cite as 305 Neb. 441

Even though Valdez has not raised a double jeopardy argument, we are guided by the U.S. Supreme Court’s decision 

in Monge v. California,

 20 which addressed a factual and procedural context similar to that presented in this case. Monge

interpreted California’s “‘three-strikes’” law, which enhances 

a defendant’s sentence based on a previous conviction for 

a “serious felony.” 21 At the enhancement hearing, the State 

alleged that the defendant had been convicted for assault with 

a deadly weapon, but failed to support its allegation with 

any substantive evidence. Nonetheless, the court enhanced the 

defendant’s sentence. On appeal, the U.S. Supreme Court held 

that insufficient evidence is not a bar to retrial of a defendant’s 

enhanced status. 22

[4] The Supreme Court of Pennsylvania has similarly concluded that the prosecution is permitted to present enhancement evidence at a sentencing hearing on remand after the 

original sentence is vacated due to insufficient evidence on 

the issue of enhancement. 23 The court reasoned that once the 

original sentence is vacated, the sentence is rendered a nullity 

and the trial court may treat the case anew for evidentiary purposes. 24 Where an appellate court determines that the evidence 

was insufficient to establish a qualifying prior conviction, the 

appellate court’s determination does not act as an acquittal or 

preclude a trial court from receiving additional evidence of a 

qualifying prior conviction. 25

[5,6] At oral argument before this court, Valdez contended 

that by failing to adduce evidence of enhancement at the original sentencing hearing, the State waived the issue of enhancement. A waiver is the voluntary and intentional relinquishment 

of a known right, privilege, or claim, and may be demonstrated 

20 Monge, supra note 16.

21 Id., 524 U.S. at 724.

22 See, id.; Salas, supra note 19.

23 Wilson, supra note 19.

24 Id.

25 Scott, supra note 19.
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by or inferred from a person’s conduct. 26 A voluntary waiver, 

knowingly and intelligently made, must affirmatively appear 

from the record. 27 To establish a waiver of a legal right, there 

must be a clear, unequivocal, and decisive act of a party showing such a purpose, or acts amounting to an estoppel on his or 

her part. 28 Further, the waiving party must have full knowledge 

of all material facts. 29

We find no evidence in our record that the State intended to 

forgo enhancing Valdez’ sentence. The State’s charging decision, as evidenced by the State’s complaint filed in January 

2018, was to prosecute Valdez for motor vehicle homicide 

under § 28-306(3)(c), a Class II felony. At the plea hearing, the 

State alleged as part of its factual basis that Valdez had a prior 

conviction that would subject him to enhancement. Valdez 

then entered a plea of guilty to the enhanced charge, a Class II 

felony, and the court accepted the plea subject to an enhancement hearing, and then scheduled that enhancement be taken 

up at sentencing per agreement of the parties.

The record indicates the court failed to recognize that 

enhancement had not been addressed. At the enhancement and 

sentencing hearing, the court opened by stating that “[t]his 

matter comes on for sentencing today for the crime of motor 

vehicle homicide, a Class II felony.” The court proceeded 

directly to sentencing, possibly due to the fact that four witnesses were present to provide testimony on the issue of 

sentencing. In its closing comments articulating its reasons 

for Valdez’ sentence, the court referenced Valdez’ two prior 

convictions for DUI.

For Valdez’ waiver argument to apply, he must show that 

at some point, the State intended to prosecute him for a Class 

IIA felony. Here, the State has never wavered from its position 

to prosecute Valdez for a Class II felony. Moreover, Valdez’ 

26 State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012).

27 Id.

28 Nelssen v. Ritchie, 304 Neb. 346, 934 N.W.2d 377 (2019).

29 Id.
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waiver argument arises in a context in which he has pled guilty 

to a Class II felony, in exchange for the State’s agreeing to 

recommend a maximum sentence of 25 years’ imprisonment, 

with no pursuit of additional charges or restitution. Were we 

to accept Valdez’ argument that he be resentenced on a Class 

IIA felony, that would raise questions regarding the validity of 

the plea agreement, yet Valdez has not expressed a desire to 

alter the plea agreement. Therefore, we reject Valdez’ waiver 

argument.

We vacate Valdez’ sentence and remand the cause with 

directions for another enhancement and sentencing hearing. 

Because of the disposition of this assignment of error, we need 

not address the remainder of Valdez’ assignments of error.

CONCLUSION

The district court erred when it enhanced Valdez’ sentence 

for motor vehicle homicide absent evidence of a prior conviction. We vacate Valdez’ sentence and remand the cause with 

direction for another enhancement and sentencing hearing.

Sentence vacated, and cause 

remanded with direction.

Freudenberg, J., not participating.