IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

STATE V. KENYIBA

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLEE,

V.

PAUL B. KENYIBA, APPELLANT.

Filed December 24, 2013. No. A-13-459.

Appeal from the District Court for Lancaster County: STEPHANIE F. STACY, Judge. 

Affirmed.

Dennis R. Keefe, Lancaster County Public Defender, and Elizabeth Elliott for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

INBODY, Chief Judge, and IRWIN and RIEDMANN, Judges.

RIEDMANN, Judge.

INTRODUCTION

Paul B. Kenyiba appeals his plea-based conviction of driving under the influence (DUI), 

third offense, with a breath alcohol concentration of .15 or greater. Kenyiba asserts that his two 

prior DUI convictions from Kentucky are not valid for purposes of enhancement and that the 

district court imposed an excessive sentence. Because we find no merit to Kenyiba’s arguments 

on appeal, we affirm.

BACKGROUND

On March 31, 2012, at approximately 11:25 a.m., an Officer Dolberg of the Lincoln 

Police Department observed a Chrysler Sebring traveling westbound on Adams Street between 

3d and 4th Streets in Lincoln, Lancaster County, Nebraska. The vehicle crossed the centerline 

with both driver’s side tires, then collided with the curb on the north side of Adams Street. The 

vehicle did not have license plates or in-transit tags. Officer Dolberg initiated a traffic stop and 

identified the driver as Kenyiba. Officer Dolberg detected a strong odor of alcohol coming from 

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the vehicle and observed that Kenyiba had red, bloodshot, and watery eyes. Officer Dolberg 

asked Kenyiba to step out of the vehicle and noticed that Kenyiba staggered, swayed, and 

stumbled as he walked. Kenyiba failed a preliminary breath test and was taken into custody. The 

result of Kenyiba’s subsequent chemical breath test was .272 grams of alcohol per 210 liters of 

his breath.

Kenyiba was charged with DUI with a breath alcohol concentration of .15 or greater. The 

information also alleged that Kenyiba had two prior DUI convictions for offenses that occurred 

in Jefferson County, Kentucky, on January 24 and March 9, 2007. Kenyiba pled no contest to the 

underlying offense of DUI, .15 or greater, in exchange for the State’s promise not to file any 

additional charges arising out of this incident. The district court accepted Kenyiba’s plea and 

found him guilty beyond a reasonable doubt.

An enhancement hearing was held in the district court, during which the State introduced 

certified copies of court documents reflecting Kenyiba’s two prior Kentucky DUI convictions. 

Exhibit 1 is a “Daily Disposition Report” from Jefferson District Court reflecting two separate

cases, 07-T-007094 and 07-T-022817, in which Kenyiba appeared with counsel, entered guilty 

pleas, and was sentenced for “Op MV Under/Influence of Alcohol/Drugs, etc. .08 1st off.” 

Exhibits 2 and 3 contain court-certified copies of the “guilty plea” form and uniform citation for 

each case, which indicate that Kenyiba was arrested for DUI on January 24 and March 9, 2007, 

and pled guilty to both offenses on March 14.

Kenyiba did not object to the admission of these exhibits into evidence, but he did object 

to the validity of the prior convictions for enhancement. Kenyiba argued that the exhibits failed 

to clearly show the offenses to which he pled and whether there were two separate convictions. 

The district court found that both of the prior convictions were valid for enhancement purposes 

and enhanced Kenyiba’s current DUI to a third offense, a Class IIIA felony. The district court 

sentenced Kenyiba to 3 to 5 years’ imprisonment and revoked his driver’s license for 15 years. 

Kenyiba timely appeals.

ASSIGNMENTS OF ERROR

Kenyiba alleges the district court erred in permitting the use of his prior Kentucky DUI 

convictions for purposes of enhancement under Neb. Rev. Stat. § 60-6,197.02(1)(a)(i)(C) (Cum. 

Supp. 2012). He also alleges that the sentence imposed by the district court was excessive and 

constituted an abuse of discretion.

STANDARD OF REVIEW

A sentencing court’s determination concerning the constitutional validity of a prior 

plea-based conviction, used for enhancement of a penalty for a subsequent conviction, will be 

upheld on appeal unless the sentencing court’s determination is clearly erroneous. State v. 

Mitchell, 285 Neb. 88, 825 N.W.2d 429 (2013).

Viewing and construing the evidence most favorably to the State, an appellate court will 

not set aside a finding of an earlier conviction used for sentence enhancement which is supported 

by relevant and competent evidence. State v. Linn, 248 Neb. 809, 539 N.W.2d 435 (1995).

A sentence imposed within statutory limits will not be disturbed on appeal absent an

abuse of discretion by the trial court. State v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012).

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ANALYSIS

Enhancement.

Kenyiba first asserts that the district court erred in finding that his prior Kentucky DUI 

convictions were valid for enhancement. He argues that Exhibits 1, 2, and 3 fail to show with any 

degree of trustworthiness the actual charges of which he was convicted. We find that Kenyiba’s 

prior convictions are supported by relevant and competent evidence and that the district court 

properly enhanced his conviction to a third offense.

In a proceeding to enhance punishment because of prior convictions, the State has the 

burden of proving such prior convictions by a preponderance of the evidence. State v. Dixon, 282 

Neb. 274, 802 N.W.2d 866 (2011); State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).

Under Nebraska law, a DUI conviction from another state is valid for enhancement if it 

was committed within the 15-year period prior to the current offense and, at the time of the prior 

conviction in the other state, the offense for which the person was convicted would have been a 

violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2010). See § 60-6,197.02(1)(a)(i)(C). However, 

the State does not have the initial burden of showing a substantial similarity of every element of 

the respective DUI laws or that the facts surrounding the prior conviction would have resulted in 

a violation of Nebraska DUI laws as they existed at that time. State v. Garcia, 281 Neb. 1, 792 

N.W.2d 882 (2011). Section 60-6,197.02(2) simply requires the State to present a court-certified 

copy or an authenticated copy of a prior conviction in another state as prima facie evidence of 

such prior conviction. See State v. Garcia, supra. 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 to sentencing, and make objections on the record regarding the 

validity of such prior convictions. § 60-6,197.02(3).

The Nebraska Supreme Court recently analyzed these statutes in Garcia and held:

The prosecution presented prima facie evidence of [the defendant’s] prior 

convictions by presenting a certified copy of his California DUI convictions, which . . . 

the State demonstrated were counseled. The burden thus shifted to [the defendant] to 

produce evidence rebutting the statutory presumption that those documents did not reflect 

that an “offense for which the person was convicted would have been a violation of 

section 60-6,196.”

281 Neb. at 13, 792 N.W.2d at 892, quoting § 60-6,197.02(1)(a)(i)(C).

Here, the State presented court-certified documents from Jefferson District Court in 

Kentucky reflecting two separate DUI convictions in case Nos. 07-T-007094 and 07-T-022817. 

The “Daily Disposition Report” shows that on March 14, 2007, Kenyiba appeared with counsel, 

entered guilty pleas, and was sentenced in both cases for the offense of “Op MV Under/Influence 

of Alcohol/Drugs, etc. .08 1st off.” This report lists a specific citation number for each case, 

which correspond to the uniform citations contained in exhibits 2 and 3. The uniform citations 

show that Kenyiba was arrested for “DUI” on January 24, 2007, and again on March 9, 2007. 

The State also presented the signed “guilty plea” forms, in which Kenyiba admitted guilt in each 

case for the offense of “DUI 1st No Agg.” All of these documents were court-certified and 

established prima facie evidence of the convictions. See, § 60-6,197.02(2); State v. Garcia, 

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supra. Kenyiba did not produce any evidence rebutting the statutory presumption that those 

convictions would have been a violation of Nebraska DUI laws as they existed at the time.

We agree that the exhibits offered by the State establish by a preponderance of the 

evidence that Kenyiba was convicted of two DUI’s in Kentucky for offenses that occurred on 

January 24 and March 9, 2007, and that Kenyiba was represented by counsel during all critical 

stages of those proceedings. Therefore, we agree that both convictions were valid for purposes of 

enhancement, and the district court did not err when it enhanced Kenyiba’s current DUI to a 

third offense.

Excessive Sentence.

Kenyiba asserts that the sentence imposed by the district court is excessive and 

constitutes an abuse of discretion. He argues that the district court failed to give proper weight to 

all of the facts and circumstances surrounding his life and that the sentence imposed exceeds 

what is necessary for his rehabilitation and the protection of the public. We find no merit in these 

arguments.

Kenyiba was convicted of DUI, third offense, with a breath alcohol concentration of .15 

or greater, which is a Class IIIA felony punishable by a minimum of 180 days in jail and a 

maximum of 5 years’ imprisonment, a $10,000 fine, or both, as well as a mandatory 15-year 

license revocation. Neb. Rev. Stat. §§ 28-105 and 60-6,197.03(6) (Cum. Supp. 2012). Kenyiba’s 

sentence of 3 to 5 years’ imprisonment is well within the statutory limits for this offense.

Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, 

the appellate court must determine whether the sentencing court abused its discretion in 

considering and applying the relevant factors as well as any applicable legal principles in 

determining the sentence to be imposed. State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010).

When imposing a sentence, a 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 crime. Id. But 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 all the facts and circumstances 

surrounding the defendant’s life. Id.

The presentence report reflects that Kenyiba came to the United States from Sudan in 

2003. In that short period of time, he has accumulated at least 14 criminal convictions in three 

different states, not counting the numerous criminal charges on his record for which the 

disposition is unknown. His prior convictions include resisting/obstructing an officer, 

harassment, disorderly conduct, two DUI’s, theft by deception, attempted assault by a confined 

person, assault by mutual consent, trespassing, leaving the scene of an accident, destruction of 

property, disturbing the peace, failure to appear, and refusing to submit to a chemical test. 

Additionally, Kenyiba was arrested less than 1 week after he committed the current offense for 

another DUI with refusal to submit to a chemical test, willful reckless driving, and leaving the 

scene of an accident.

The district court reviewed the presentence report and considered the appropriate factors 

in imposing Kenyiba’s sentence. The district court noted that Kenyiba had refused to recognize 

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the seriousness of his alcohol problem or seek treatment, and concluded that incarceration was 

necessary to protect the community from his continued drinking and driving.

We cannot say that the district court abused its discretion by imposing a sentence within 

the statutory range.

CONCLUSION

The district court did not err in using Kenyiba’s prior Kentucky DUI convictions to 

enhance his conviction to a third offense. Kenyiba’s sentence was within statutory limits and was 

not an abuse of discretion. Accordingly, we affirm.

AFFIRMED.

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