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- IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL ( Memorandum Web Opinion )

S TATE V

. W EBB

NOTICE : THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P . § 2

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S TATE OF N EBRASKA , APPELLANT ,

V

. T YRONE W EBB , APPELLEE

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Filed August 15, 2017 . No. A

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- 271

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Appeal from the District Court for Lancaster County: K EVIN R. M C M ANAMAN , Judge. Affirmed

. Joe Kelly, Lancaster County Attorney, and Daniel J. Zieg for ap pellant.
Douglas L. Kerns for appellee.

I NBODY , R IEDMANN , and A RTERBURN , Judges.

R IEDMANN , Judge.

INTRODUCTION
The State of Nebraska appeals from the order of the district court for Lancaster County sentencing Tyrone Webb for his conviction of driving during revocation, subsequent offense. The State argues that the sentence imposed was excessively lenient. Finding no abuse of discretion, we affirm.

BACK GROUND
Webb was originally charged with driving during revocation, subsequent offense, and false reporting. He pled no contest to driving during revocation, subsequent offense, and the State dismissed the false reporting charge. According to the factual b asis provided by the State at the plea hearing, at 1:30 a.m. on March 27, 2016, Webb ’ s vehicle was stopped by police for failing to- 2

- have its headlights on. Webb initially provided a false name to the officer, but when a pat down search revealed an identifi cation card with his real name, he admitted that he lied about his name because his driver ’ s license was suspended. A search of the Department of Motor Vehicles ’ records revealed that Webb ’ s license was suspended until 2029 for a fifth offense driving whil e intoxicated (DUI) conviction, and he had not been issued an interlock permit. At the plea hearing, the court received into evidence a copy of a prior conviction for driving during revocation and found sufficient evidence to establish that this was not We bb ’ s first conviction for driving during revocation. Webb ’ s plea of no contest was accepted, and he was found guilty. At sentencing, the court indicated that it considered the statutorily required factors as well as the information contained in the presen tence investigation report (PSI). The court found that a long period o f incarceration was unnecessary given Webb ’ s age of 69 years old and the circumstances of the offense. Webb was therefore sentenced to 30 days in jail and 3 years ’ probation. His license was also revoked for an additional 15 years. The State timely appeals the sentencing order.

ASSIGNMENTS OF ERROR
The State assigns that the district court abused its discretion in imposing an excessively lenient sentence.

STANDARD OF REVIEW

When reviewi ng 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
The State argues that Webb ’ s sentence is excessively lenient given his criminal driving history. The State also emphasizes that Webb was discharged from parole for his fifth DUI conviction just two days before he was arrested in the present case. The State asserts that Webb ’ s history makes clear that the only way to prevent W ebb from driving and maintain the safety of the general public is to impose a sentence of incarceration. Driving during revocation, subsequent offense is a Class IIA felony, punishable by up to 20 years ’ incarceration. Neb. Rev. Stat. §§ 60

- 6,197.06(2) & 28

- 105 (Supp. 2015 & Reissue 2016). In addition, the court was required to suspend Webb ’ s driver ’ s license for 15 years. See § 60

- 6,197.06(2). Thus, Webb ’ s sentence falls within the statutory limits, and we review it for an abuse of discretion. 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 nee d for the sentence to provide the defendant with needed educational or- 3

- 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 pertine nt. State v. Parminter, supra . See also Neb. Rev. Stat. § 29

- 2322 (Reissue 2016).
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 p articular sentence

. Id

. We have reviewed the record

, including the PSI

, in light of the above considerations. Other than a burglary conviction from 1970, Webb ’ s criminal history consists of offenses related to driving. Between 2004 and 2014, he amassed 5 DUI convictions, 4 driving during suspension convictions, and 1 driving during revocation conviction. For his most recent DUI, Webb was sentenced to 30 months to 5 years ’ imprisonment. He received no misconduct reports during his term of incarceration. At that time, an inmate classification study was completed and concluded that Webb would be recommended for substance abuse treatment programming, but acknowledged that at his age, he may not wish to participate. According to the PSI before us, Webb reported that he last drank alcohol at the time of his most recent DUI arrest, which occurred in February 2014. At sentencing, the court recognized Webb ’ s history of DUIs and his willingness to take a risk by driving while intoxicated or without a valid license. H owever, the court also acknowledged Webb ’ s willingness to enter a plea in this case, his age of 69, that he expressed remorse for his actions, and the fact that the present offense did not involve drinking and driving. There are a number of terms and condi tions with which Webb must comply while on probation, and the sentencing judge warned him that if he failed to comply with any of the probation conditions, he was facing a very lengthy sentence, reminding him, “ This is your chance, Mr. Webb. ” Webb ’ s history of driving while intoxicated and without a valid license gives us significant cause for concern. Clearly a more significant sentence could have been imposed and would likely be imposed were we in the position to substitute our judgment for that o f the district court. However, 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). The district court supported its sentence with a rationale fou nd within portions of the record. We further note that the district court had the opportunity to observe Webb and make a determination regarding his level of acceptance of responsibility, regret for the offense, and ability to comply with probation. Noneth eless, this is an extremely close case. Ultimately, however, given our standard of review, we are constrained to find that the sentence imposed does not constitute an abuse of discretion.

CONCLUSION
We conclude that the sentence imposed does not constitut e an abuse of the district court ’ s discretion and is therefore not excessively lenient. Accordingly, we affirm the sentence imposed.

A FFIRMED

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