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STATE v. MORTON

Cite as 310 Neb. 355

State of Nebraska, appellee, v. 

Natavian Q. Morton, appellant.

___ N.W.2d ___

Filed November 12, 2021. No. S-19-1168.

1. Sentences: Appeal and Error. A sentence imposed within the statutory 

limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court.

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: Appeal and Error. When sentences imposed within statutory limits are alleged on appeal to be excessive, the appellate court 

must determine whether the sentencing court abused its discretion in 

considering well-established factors and any applicable legal principles.

4. Sentences. The relevant factors for a sentencing judge to consider 

when imposing a sentence are 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 amount 

of violence involved in the commission of the crime.

5. ____. The sentencing court is not limited to any mathematically applied 

set of factors, but the appropriateness of the sentence is necessarily a 

subjective judgment that includes the sentencing judge’s observations 

of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life.

6. Sentences: Prosecuting Attorneys. So long as the facts provide a sufficient basis to find all elements beyond a reasonable doubt for the 

crimes the defendant is convicted of, whether an alternative crime fits 

those facts best is a matter of prosecutorial discretion and not a reason 

to question the trial court’s sentence on the crimes found to have been 

committed.

Nebraska Supreme Court Online Library

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

11/12/2021 08:08 AM CST
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7. Constitutional Law: Prosecuting Attorneys: Probable Cause.

Prosecutorial discretion is an inherent executive power under which the 

prosecutor has the discretion to choose to charge any crime that probable cause will support or, if the prosecutor chooses, not to charge the 

accused at all.

8. Criminal Law: Intent. A trier of fact may infer that the defendant 

intended the natural and probable consequences of the defendant’s voluntary acts.

9. Homicide: Intent. An indiscriminate killer is just as culpable as one 

who targets a specific person.

10. Sentences: Plea Bargains. In deciding the appropriate sentence, a 

sentencing court can account for the fact that the defendant received a 

substantial benefit from a plea bargain agreement.

11. Sentences: Statutes. There is nothing in the statutory scheme requiring 

proportionality between the sentences imposed for the crimes of use or 

possession and the sentences imposed for their predicate offenses.

12. Constitutional Law: Sentences: Appeal and Error. Comparative 

analysis is not mandatory in a challenge under the Eighth Amendment 

and is useful only to validate an initial judgment that a sentence is so 

grossly disproportionate to a crime as to be excessive; review of an 

excessive sentence claim under Neb. Rev. Stat. § 29-2308 (Reissue 

2016) is not subject to a higher standard.

13. Sentences: Appeal and Error. Appellate courts are under no duty to 

conduct a de novo review of the record to determine whether a sentence 

is proportionate.

14. Constitutional Law: Sentences: Statutes: Appeal and Error. Once 

it is determined that the sentence prescribed by statute is constitutional 

and that the sentence imposed is within statutory limits, the issue in 

reviewing a sentence is not whether someone else in a different case 

received a lesser sentence, but whether the defendant in the subject case 

received an appropriate one.

15. Sentences: Appeal and Error. The power to impose sentences is 

entrusted to the sentencing court and not to an appellate court.

Appeal from the District Court for Lancaster County: Lori 

A. Maret, Judge. Reversed and remanded with direction.

Jonathan M. Braaten and Mona L. Burton, of Anderson, 

Creager & Wittstruck, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.
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STATE v. MORTON

Cite as 310 Neb. 355

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

INTRODUCTION

In the defendant’s appeal to the Nebraska Court of Appeals 

from plea-based convictions of manslaughter and possession 

of a firearm during the commission of a felony, the Court of 

Appeals reduced the sentence imposed for the firearm conviction as excessive. We granted the State’s petition for further 

review assigning as error the Court of Appeals’ reduction of 

the sentence.

BACKGROUND

Natavian Q. Morton was originally charged with second 

degree murder, 1 a Class IB felony; two counts of use of a firearm to commit a felony, 2 both Class IC felonies; and unlawful discharge of a firearm, 3 a Class ID felony. The charged 

offenses were alleged to occur at a time when Morton was 16 

years of age. Morton’s motion to transfer to juvenile court was 

denied after a hearing in August 2018.

Pursuant to a plea agreement, Morton pled no contest to 

manslaughter, 4 a Class IIA felony, and possession of a firearm 

during the commission of a felony, a Class II felony. After a 

colloquy between the court and Morton regarding the potential 

penalties for the offenses and the rights he was waiving by 

entering no contest pleas, the State provided a factual basis.

The State informed the trial court that on March 26, 2018, 

a young man had been shot and killed. The dispute had originated earlier in the day at a high school in Lincoln, Nebraska, 

where a fight had occurred which resulted in the suspension of several individuals, including Perrion Bluford and 

1 Neb. Rev. Stat. § 28-304 (Reissue 2016).

2 Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016).

3 Neb. Rev. Stat. § 28-1212.02 (Reissue 2016).

4 Neb. Rev. Stat. § 28-305 (Reissue 2016).
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three residents of the house where the shooting occurred. The 

Lincoln Police Department investigator in charge of investigating the shooting also learned that there had been electronic 

communication between the two groups involved in the fight 

regarding continuing the fight later on that same day.

Video surveillance from another Lincoln high school, which 

Morton attended, showed Morton, wearing a black jacket, blue 

jeans, and tan shoes, leaving the high school at approximately 

1:06 p.m. with two other individuals and getting into one of 

two vehicles that came to pick them up. One of the vehicles 

belonged to Bluford.

The Lincoln Police Department was detailed to the area 

of South 47th Street and Cooper Avenue at approximately 

1:56 p.m. on a report of 15 people fighting outside a residence. 

Dispatch further indicated that someone had been hit by a 

vehicle and that shots had been fired. Upon arrival, officers 

observed an injured person on the porch who had suffered a 

gunshot wound. The victim, later identified as Edgar Union, 

Jr., died at the scene.

An individual involved in the incident informed law enforcement that Morton was one of approximately eight people who 

went to the residence to fight the occupants. Upon arrival, a 

verbal altercation ensued between the groups.

While this was occurring, a white sport utility vehicle (SUV) 

driven by a woman arrived with several passengers who exited 

the SUV and ran onto the porch. Later, the woman driving the 

SUV made a comment about running people over, reentered the 

SUV, drove in a circle, and struck an individual in the yard.

The witness then heard a gunshot, but did not know who 

fired it, because he was trying to help the victim struck by the 

SUV. Other witnesses corroborated much of the same information, identified Morton as someone present at the scene of 

the shooting, and stated that they saw an outline of a gun in 

his jacket pocket. No witnesses stated they saw Morton fire 

the gun.

An arrest warrant was issued for Morton on April 24, 

2018, who was located and arrested in Mississippi. Police 
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Cite as 310 Neb. 355

interviewed Morton, who waived his Miranda rights and told 

officers that after he was picked up at the high school he 

attended, he rode with Bluford to the scene of the shooting. Upon their arrival at the scene, Bluford handed him the 

gun while they were still inside the vehicle and asked him 

to hold it. He agreed and put the gun in his jacket pocket. 

Morton admitted to firing the shot that killed the victim and 

provided information consistent with that of other witnesses. 

Specifically, Morton confirmed that there was a verbal altercation between his group and the occupants of the residence on 

South 47th Street, including those who had arrived in a white 

SUV with the victim as a passenger.

Morton told the officers that as the occupants of the SUV 

walked toward the porch, he saw that one of them had a gun in 

his hand. Further, Morton stated the woman driving the white 

SUV threatened to hit people with her SUV and then, in fact, 

did hit an individual with the SUV.

Morton stated that when the woman in the SUV was trying 

to hit people, he was running back toward the vehicle he had 

arrived in, but that the people in his group began yelling at 

him to shoot. Morton described facing the house, but walking 

backward toward the vehicle, when he pulled the gun out of his 

pocket and fired one shot toward the house.

Morton stated he was not aiming at anyone in particular, 

but was just pointing the gun in the direction of the house and 

porch. Morton did not claim to be aiming at the SUV in selfdefense. There is no indication from the factual basis that the 

former passenger of the SUV, whom Morton had observed with 

a gun, had aimed it at Morton or anyone else in his group.

The district court accepted Morton’s pleas, found the factual 

basis sufficient, and found Morton guilty. The court ordered a 

presentence investigation be completed and continued that matter for sentencing.

Sentencing

Defense counsel noted at sentencing that Morton was 

“extremely remorseful” for the poor decisions he made, which 
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Cite as 310 Neb. 355

resulted in the “untimely death” of the victim, and that he 

fully acknowledged the seriousness of the particular situation. 

Defense counsel noted that these comments for sentencing 

were not to undermine the seriousness of the situation but to 

provide context and some mitigation for the court to consider 

in hopefully imposing lenient sentences.

Defense counsel stated that a number of factors present in 

this case warranted sentences of probation or a minimal period 

of incarceration. He highlighted the fact that Morton had no 

prior criminal record whatsoever and was only 16 years old at 

the time of the incident and 17 years old at sentencing. Based 

on Morton’s age, defense counsel highlighted U.S. Supreme 

Court cases that discuss three primary factors that supported 

his argument that children should be treated differently than an 

adult, such as the following: Children lack maturity and have 

an underdeveloped sense of responsibility, children are more 

vulnerable to negative influences and outside pressure, and a 

child’s character is not as well informed as an adult.

Further, defense counsel noted Morton’s traumatic past 

experience in his life, in that Morton was 13 years old and 

home at the time his father was murdered in the living room. 

This traumatic situation and the lack of a constant, steady male 

influence in his life during the very formative years of his life 

rendered him incapable of properly responding to the violently 

escalating situation during this incident.

Defense counsel further pointed out that it was Morton’s 

assertion he was not the one who originally obtained the gun 

used in this particular incident, that he did not have a reputation for carrying guns, that Morton was not involved in the 

original circumstances that led to the altercation, and that 

Morton believed he was responding to a perceived threat when 

he fired the shot.

Defense counsel also asserted Morton did not have any 

intent to kill the victim in this incident. Rather, the statements 

provided by Morton suggested that he fired one shot from 

across the street with a trajectory that was well over the heads 
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Cite as 310 Neb. 355

of anyone standing in the yard, but that the victim “was in 

an elevated position on the porch, and that’s where the bullet 

ended up striking him.”

Counsel asked the court to consider that during the 511 

days Morton was at the juvenile detention center, he received 

66 credits toward his high school diploma, underwent therapy and counseling, and received numerous positive reviews 

from various teachers. Counsel submitted to the court that 

Morton’s efforts during his time at the juvenile detention center 

showed he is someone capable and willing for rehabilitation 

and requested the court impose probation or a minimal period 

of incarceration in order for Morton to have an opportunity for 

a meaningful and productive life. Morton’s presentence investigation report (PSR) indicated he was at a medium-low risk 

to reoffend.

When Morton was given the chance to make a statement, 

he said, “I just want to take full responsibility for what I did. 

To the family, because I know how it feels to grow up without 

a father, I ask if they could forgive me for that, and yeah. So 

that’s all I got to say.”

The State asked for sentences of incarceration, noting that 

the social group conflict and handguns made it predictable that 

someone was going to get hurt or killed. The State pointed out 

that Morton pulled the trigger, that he took a life, and that there 

are consequences for that behavior.

The district court stated it considered the PSR, as well as 

a letter from defense counsel, the assessments, the private 

investigator’s report, and character references from several 

sources. The court noted specifically that it took into consideration Morton’s young age, but also that someone lost his 

life. The court observed that Morton had no criminal history. 

The court acknowledged that no sentence handed down would 

bring the victim back and that “[t]o say that this was a serious offense doesn’t do it justice . . . .” The court commented 

on the extreme benefit Morton received as part of the plea 

agreement.
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Cite as 310 Neb. 355

Ultimately, the court stated,

Having regard for the nature and circumstances of the 

crime, the history, character, and condition of [Morton], 

I do find that imprisonment of [Morton] is necessary for 

the protection of the public because the risk is substantial, 

that during any period of probation, [he] would engage in 

additional criminal conduct, and because a lesser sentence 

would depreciate the seriousness of [his] crime and promote disrespect for the law.

The district court sentenced Morton to 15 to 20 years’ imprisonment on count I and 30 to 40 years’ imprisonment on count 

II, to be served consecutively, as § 28-1205(3) requires, with 

credit for 570 days served.

Morton appealed to the Court of Appeals, assigning that 

there was insufficient evidence to establish he possessed a firearm during the commission of a felony, that the district court 

abused its discretion in not imposing probation, that the terms 

of incarceration imposed by the district court were excessive, 

and that his trial counsel was ineffective by not objecting to 

the State’s factual basis concerning the predicate felony for 

the possession of a firearm charge and by not having an expert 

witness evaluate Morton as to his development and behavior.

Court of Appeals’ Decision

The Court of Appeals found no merit in Morton’s insufficient evidence and ineffective assistance of counsel claims and 

affirmed the district court’s sentence of 15 to 20 years’ imprisonment for Morton’s manslaughter conviction. 5 However, the 

Court of Appeals found the district court abused its discretion 

in imposing a sentence of 30 to 40 years’ imprisonment for 

Morton’s possession of a firearm during the commission of a 

felony conviction and accordingly reduced it.

In finding an abuse of discretion regarding Morton’s sentence on count II, the Court of Appeals acknowledged the 

5 State v. Morton, 29 Neb. App. 624, 957 N.W.2d 522 (2021).
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facts in the PSR that addressed the customarily considered 

factors, but also compared the sentence imposed on Morton to 

different Nebraska cases which it determined involved similarly situated defendants convicted of like crimes. 6 The Court 

of Appeals found instructive the cases of State v. Neuberger 7

(20 to 20 years’ imprisonment on manslaughter conviction 

with consecutive 10 to 15 years’ imprisonment on firearm 

conviction); State v. Iromuanya 8 (25 to 35 years’ imprisonment 

on attempted second degree murder conviction, life to life 

imprisonment on second degree murder conviction that was 

reduced to 50 years’ to life imprisonment, and 10 to 20 years’ 

imprisonment on each of two weapon convictions, all to be 

served consecutively); State v. Aragon 9 (concurrent terms of 

14 to 20 years’ imprisonment on each of two robbery convictions and concurrent sentence of 3 to 5 years’ imprisonment 

on weapon conviction); and State v. Bradley 10 (number of serious sentences imposed across number of cases which included 

convictions for terroristic threats, weapons charges, and other 

charges). These cases involved convictions of possession of a 

firearm during the commission of a felony or use of a weapon 

to commit a felony and various underlying felonies committed 

by defendants from 16 years of age to 23 years of age.

Comparing these cases to the current one, the Court of 

Appeals determined that the district court did not abuse its 

discretion in sentencing Morton to 15 to 20 years’ imprisonment for his manslaughter conviction, but found that the sentence of 30 to 40 years’ imprisonment for the possession of 

6 Id.

7 State v. Neuberger, No. A-13-411, 2014 WL 46420 (Neb. App. Jan. 7, 

2014) (selected for posting to court website).

8 State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).

9 State v. Aragon, No. A-17-450, 2018 WL 1597372 (Neb. App. Jan. 13, 

2018) (selected for posting to court website).

10 State v. Bradley, No. A-17-644, 2018 WL 3868987 (Neb. App. Aug. 14, 

2018) (selected for posting to court website).
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a firearm during the commission of a felony conviction was 

an abuse of the district court’s discretion.

The Court of Appeals acknowledged that possession of a 

firearm during the commission of a felony carries with it a 

potential sentence of 1 to 50 years’ imprisonment 11 and that no 

two criminal cases are alike, because unique factors may prove 

determinative when a court considers a sentence. However, 

the Court of Appeals, in comparing the facts and outcome of 

Morton’s case to the other Nebraska cases discussed, found 

Morton’s sentence to be an “extreme outlier.” 12 It also found it 

“incongruous that the sentence for Morton’s weapons conviction should be double that of his sentence for manslaughter” 

and believed that the “disproportionate nature of the two sentences” was “logically inconsistent” and that the disparity was 

not explained by the district court on the record. 13

The Court of Appeals noted, further, that neither the factual 

basis nor the PSR showed Morton intentionally shot the victim, 

but, rather, that Morton’s actions took place amidst a “chaotic, 

melee-like atmosphere” and that there was nothing to suggest 

that Morton aimed his gun at the house with the intent to harm 

any specific individual. 14 The Court of Appeals believed the 

factual basis “best support[ed]” the conclusion that the predicate felony for Morton’s weapon conviction was unlawful discharge of a firearm, not manslaughter, for which Morton was 

convicted, or even assault. 15 However, the Court of Appeals did 

not reverse Morton’s conviction of manslaughter, which was 

not challenged on direct appeal.

Especially considering Morton’s young age and background 

and the fact that similarly situated defendants received significantly lower sentences on similar charges, the Court of 

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

12 State v. Morton, supra note 5, 29 Neb. App. at 642, 957 N.W.2d at 537.

13 Id.

14 Id. at 643, 957 N.W.2d at 537.

15 Id.
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Appeals believed that the district court’s reasons and rulings 

were untenable and that Morton was denied a just result in sentencing. 16 Accordingly, the Court of Appeals found Morton’s 

sentence of 30 to 40 years’ imprisonment on count II to be 

excessive and, through its statutory authority in Neb. Rev. Stat. 

§ 29-2308(1) (Reissue 2016) that allows an appellate court 

to reduce a sentence rendered by the district court, reduced 

Morton’s sentence on count II to a sentence of 10 to 15 years’ 

imprisonment to run consecutively to the sentence imposed by 

the district court for Morton’s manslaughter conviction. 17

We granted the State’s petition for further review.

ASSIGNMENT OF ERROR

The State assigns that the Court of Appeals erred in finding that the district court abused its discretion in its sentence 

imposed for count II, possession of a firearm in the commission of a felony.

STANDARD OF REVIEW

[1,2] A sentence imposed within the statutory limits will not 

be disturbed on appeal in the absence of an abuse of discretion 

by the trial court. 18 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. 19

ANALYSIS

Under § 29-2308(1), the appellate court “may” reduce the 

sentence rendered by the district court “when in its opinion 

the sentence is excessive.” Where, as here, a sentence imposed 

within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing 

16 Id.

17 State v. Morton, supra note 5.

18 State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021).

19 Id.
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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. 20

[3] It is well established that an appellate court will not 

disturb sentences within the statutory limits unless the district 

court abused its discretion in establishing the sentences. 21 When 

sentences imposed within statutory limits are alleged on appeal 

to be excessive, the appellate court must determine whether 

the sentencing court abused its discretion in considering wellestablished factors and any applicable legal principles. 22

[4,5] The relevant factors for a sentencing judge to consider 

when imposing a sentence are 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 amount of violence involved 

in the commission of the crime. 23 The sentencing court is not 

limited to any mathematically applied set of factors, but the 

appropriateness of the sentence is necessarily a subjective 

judgment that includes the sentencing judge’s observations of 

the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. 24

[6,7] We find that it was inappropriate for the Court of 

Appeals to second-guess the district court’s discretion in sentencing Morton under the crime of possession with the predicate offense of manslaughter, by opining the State’s factual 

basis “best” supported a crime he was not convicted of, unlawful discharge of a firearm. 25 So long as the facts provide 

a sufficient basis to find all elements beyond a reasonable 

20 State v. Stabler, 305 Neb. 415, 940 N.W.2d 572 (2020).

21 State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).

22 State v. Greer, supra note 18.

23 See id.

24 Id.

25 § 28-1212.02.
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doubt for the crimes the defendant is convicted of, whether 

an alternative crime fits those facts “best” is a matter of 

prosecutorial discretion and not a reason to question the trial 

court’s sentence on the crimes found to have been committed. 

Prosecutorial discretion is an inherent executive power under 

which the prosecutor has the discretion to choose to charge 

any crime that probable cause will support or, if the prosecutor 

chooses, not to charge the accused at all. 26

We also find the Court of Appeals’ reasoning that “[t]here 

is no suggestion that Morton aimed his gun at the house with 

the intent to harm any specific individual” to be misleading. 27

The intent to harm a specific individual is not dispositive of 

the elements of manslaughter. Nor would it have been dispositive of second degree murder, which Morton was originally 

charged with.

[8] To illustrate, second degree murder requires causing the 

death of “a person” intentionally, but without premeditation. 28

In the context of a criminal statute, “intentionally” means willfully or purposely, and not accidentally or involuntarily. 29 But 

it is a fundamental maxim of criminal law that a trier of fact 

may infer that the defendant intended the natural and probable 

consequences of the defendant’s voluntary acts. 30

Thus, in State v. Jones,

 31 we affirmed the defendant’s convictions for first degree murder, use of a deadly weapon, and 

possession of a deadly weapon by a prohibited person (and 

his sentences of life imprisonment for murder plus 10 to 20 

years’ imprisonment on each of the other two convictions), 

when the victim was killed after an altercation turned physical, 

the defendant shot several shots into the air and then toward 

26 See Polikov v. Neth, 270 Neb. 29, 699 N.W.2d 802 (2005).

27 State v. Morton, supra note 5, 29 Neb. App. at 643, 957 N.W.2d at 537.

28 § 28-304(1).

29 See, e.g., State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015).

30 See 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(f) (3d ed. 2018).

31 State v. Jones, 293 Neb. 452, 878 N.W.2d 379 (2016).
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the house, and where the victim, who was not part of the altercation, had been standing on the porch. Similarly, in State v. 

Moore,

 32 we affirmed the defendant’s convictions for assault 

in the first degree and use of a weapon to commit a felony 

(and his sentence to two consecutive terms of 20 to 20 years’ 

imprisonment), when, without taking any real “‘aim,’” the 

defendant fired one shot toward a house with little indication 

anyone was home, the shot pierced the house, and it hit the 

victim who was sitting inside, paralyzing her.

[9] Under the factual basis presented here, a trier of fact 

could infer that Morton, intentionally firing a lethal weapon 

toward the front of the house and porch where several people 

were congregating, had intended to cause the death of “a person.” While there was no evidence Morton intended to harm 

any specific individual, an indiscriminate killer is just as 

culpable as one who targets a specific person. 33 The Court of 

Appeals, by concluding the facts better fit the crime of unlawful discharge of a firearm, failed to recognize that the facts 

could support that level of culpability, and that they indisputably supported manslaughter, and thus, it was not an abuse 

of discretion for the court to impose a commensurate level 

of punishment.

[10] And while we note that the sentencing range for unlawful discharge is greater than that of manslaughter, it appears 

the Court of Appeals also used its reasoning as to what crime 

it believed better fit the facts to minimize the substantial benefit Morton received from the plea bargain agreement. The 

sentencing court took into account that but for his plea bargain agreement, Morton would have been facing a charge of 

second degree murder—in addition to unlawful discharge and 

two charges of use of a firearm—instead of the manslaughter 

and one count of possession of a firearm he was convicted 

32 State v. Moore, 276 Neb. 1, 3, 751 N.W.2d 631, 633 (2008).

33 See People v. Perez, 50 Cal. 4th 222, 234 P.3d 557, 112 Cal. Rptr. 3d 310 

(2010).
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of pursuant to the agreement. In deciding the appropriate 

sentence, a sentencing court can account for the fact that 

the defendant received a substantial benefit from a plea bargain agreement. 34

Under the mandatory minimum of 20 years’ imprisonment 

for second degree murder, the mandatory minimum of 3 years 

for unlawful discharge, and the mandatory minimums of 5 

years each for use of a firearm, running consecutively to the 

underlying felonies, Morton would have faced a mandatory 

minimum sentence of 33 years’ imprisonment but for the plea 

bargain agreement. He would have been subject to a maximum 

term of life imprisonment for the charge of second degree 

murder alone and of 50 years’ imprisonment for each of the 

other three charges. Under the amended complaint, in contrast, 

Morton was subject to a combined minimum of only 1 year’s 

imprisonment and a combined maximum of 70 years’ imprisonment. The sentencing court did not abuse its discretion in 

finding this significant.

[11] We find no support for the Court of Appeals’ reasoning 

that it was “logically inconsistent” for Morton’s sentence on 

the possession conviction to be “disproportionate[ly]” lengthy 

in relation to his sentence on the predicate felony of manslaughter. While often the predicate crime is the more serious 

crime, it is not necessarily so, and there is nothing in the statutory scheme requiring proportionality between the sentences 

imposed for the crimes of use or possession and the sentences imposed for their predicate offenses. Similar arguments 

have been rejected elsewhere. 35 We are unaware of any legal 

inquiry pertinent to review of a defendant’s sentence, which 

34 See State v. Elliott, 21 Neb. App. 962, 845 N.W.2d 612 (2014). See, also, 

State v. Gibbs, 238 Neb. 268, 470 N.W.2d 558 (1991); State v. Leek, 192 

Neb. 640, 223 N.W.2d 489 (1974); State v. Weidenfeller, 189 Neb. 505, 

203 N.W.2d 784 (1973).

35 See State v. Roland, 162 So. 3d 558 (La. App. 2015) (life imprisonment 

upon adjudication as third felony habitual offender not excessive, because 

sentences for predicate offenses were very light).
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analyzes proportionality vis-a-vis different sentences for different crimes imposed for the same defendant and arising from 

the same series of events.

Instead, for a defendant who has been sentenced consecutively for two or more crimes, we generally consider the aggregate sentence to determine if it is excessive. 36 The “disproportionate” nature of Morton’s sentence for possession was that 

the maximum sentence imposed by the court for manslaughter 

was the maximum allowable by law, and the court apparently 

believed the aggregate seriousness of the crime required a 

higher aggregate sentence than would be possible if the court 

imposed a sentence for possession that was less than the sentence for manslaughter. We find no abuse of discretion in so 

utilizing the statutory sentencing ranges available to it.

The Court of Appeals deemed Morton’s sentence to be an 

“extreme outlier” 37 compared to the sentences imposed in the 

other cases that it found “instructive,” 38 but it did so by looking 

only at the crime of possession. While not necessarily agreeing 

with the conclusion reached by the Court of Appeals in doing 

so, when looking at Morton’s sentence in the aggregate, it 

clearly is not an “extreme outlier.”

In Iromuanya, for example, we said that the defendant’s 

sentence to a maximum of life imprisonment for second degree 

murder was not excessive, because the defendant “arrived at 

the party carrying a loaded, concealed handgun and used it 

without justification to extinguish a life” in a “senseless act of 

violence.” 39 We found excessive only the minimum term of life 

imprisonment, which left the defendant ineligible for parole, 

because the defendant had no significant criminal record or 

36 See, e.g., State v. Becker, 304 Neb. 693, 936 N.W.2d 505 (2019); State v. 

Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019); State v. Castaneda, 295 

Neb. 547, 889 N.W.2d 87 (2017).

37 State v. Morton, supra note 5, 29 Neb. App. at 642, 957 N.W.2d at 537.

38 Id. at 640, 957 N.W.2d at 535.

39 State v. Iromuanya, supra note 8, 272 Neb. at 216, 719 N.W.2d at 295.
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history of violence and “[t]he court could not have imposed 

a more severe minimum term for second degree murder on 

a hardened criminal with a lengthy history of violent felony 

convictions.” 40 Here, in contrast, Morton was sentenced to a 

minimum of 15 years’ imprisonment for manslaughter and 30 

years’ imprisonment for possession, for an aggregate minimum 

term of 45 years’ imprisonment with parole eligibility in half 

that time. 41 We also note our decisions in Jones 42 and Moore 43

set forth above.

In any event, we have explained that “[t]he problem” with 

appellate courts conducting comparative analyses of appellants’ 

sentences with sentences of “‘similar’” cases “is the difficulty 

of determining that they were similar.” 44 “Referring only to 

the printed opinions found in our published reports, we are 

not able to fully comprehend the facts and circumstances with 

which the sentencing judge had to deal.” 45

[12-14] Proportionality review conducted under the Eighth 

Amendment considers each sentence individually to determine 

whether it was grossly disproportionate to the crime. 46 We 

have held that a comparative analysis is not mandatory in a 

challenge under the Eighth Amendment and is “useful only to 

validate an initial judgment that a sentence is so grossly disproportionate to a crime as to be excessive.” 47 Review of an 

excessive sentence claim under § 29-2308 is not subject to a 

higher standard. In the context of excessive sentence claims, 

we sometimes “refer[] to sentences imposed in other cases 

40 Id.

41 See Neb. Rev. Stat. § 83-1,110 (Reissue 2014).

42 State v. Jones, supra note 31.

43 State v. Moore, supra note 32.

44 State v. Riley, 242 Neb. 887, 893, 497 N.W.2d 23, 27 (1993). See, also, 

State v. Reynolds, 242 Neb. 874, 496 N.W.2d 872 (1993).

45 State v. Riley, supra note 44, 242 Neb. at 893, 497 N.W.2d at 27.

46 See State v. Becker, supra note 36.

47 State v. Riley, supra note 44, 242 Neb. at 893, 497 N.W.2d at 27.
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as a means of illustrating an abuse of discretion,” 48 but we have 

clearly held that appellate courts are under no duty to conduct a 

de novo review of the record to determine whether a sentence 

is proportionate. 49 To the contrary, once it is determined that 

the sentence prescribed by statute is constitutional and that 

the sentence imposed is within statutory limits, “the issue in 

reviewing a sentence is not whether someone else in a different 

case received a lesser sentence, but whether the defendant in 

the subject case received an appropriate one.” 50

In sentencing Morton, the district court was under no obligation to conduct a comparative analysis of “similar” cases—an 

inquiry that would be entirely impractical for trial courts to 

undertake. Instead, the court properly considered the PSR and 

accompanying letters, character references, and assessments. 

It acknowledged Morton’s young age, but also focused on 

the fact that someone lost his life from Morton’s actions. The 

court further took into consideration the “extreme benefit” that 

Morton received as part of the plea agreement in this case. The 

court acknowledged that Morton did not have any criminal 

history, but found that imprisonment of Morton was necessary 

for the protection of the public, taking into account the nature 

and circumstances of the crime and the history, character, and 

condition of Morton. The court believed “a lesser sentence 

would depreciate the seriousness of [Morton’s] crime and promote disrespect for the law.” There is no dispute that no part of 

the district court’s sentence was outside of the relevant statutory range.

[15] 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. 51 Morton’s 

48 State v. Philipps, 242 Neb. 894, 897, 496 N.W.2d 874, 877 (1993).

49 Id.

50 Id. See, also, State v. Sianouthai, 225 Neb. 62, 402 N.W.2d 316 (1987).

51 State v. Greer, supra note 18.
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sentence properly reflected the seriousness of the crime committed and was supported by competent evidence. The fact of 

the matter is Morton traveled with several others to an adversary’s dwelling in order to continue a fight that had started 

earlier that day, took a gun to the scene or took possession 

of the gun from someone else upon arrival, deliberately shot 

toward the porch where several individuals were present, and 

ultimately hit someone, taking that person’s life. The power to 

impose sentences is entrusted to the sentencing court and not to 

an appellate court, 52 and the sentencing court did not abuse its 

discretion in the exercise of that power.

CONCLUSION

We reverse the judgment of the Court of Appeals and 

remand the cause with direction to affirm the judgment of the 

district court.

Reversed and remanded with direction.

52 See State v. Philipps, supra note 48.

Cassel, J., concurring.

Mark Twain is reputed to have said that history does not 

repeat, but it often rhymes. In this court’s decision today, which 

I join in full, one finds a familiar verse from an old theme.

It began with a trilogy of decisions by this court reversing 

decisions of the Nebraska Court of Appeals reducing sentences which had been imposed by trial courts. 1 In the first 

one, this court recognized that “minimum sentencing limitations are a matter for the Legislature, and a sentence imposed 

within those limitations a matter left to the discretion of the 

sentencing court.” 2 The second one discounted comparative 

analysis of sentences except to “validate an initial judgment 

that a sentence is so grossly disproportionate to a crime as to 

1 See, State v. Philipps, 242 Neb. 894, 496 N.W.2d 874 (1993); State v. 

Riley, 242 Neb. 887, 497 N.W.2d 23 (1993); State v. Reynolds, 242 Neb. 

874, 496 N.W.2d 872 (1993).

2 Reynolds, supra note 1, 242 Neb. at 877, 496 N.W.2d at 874.
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be excessive.” 3 In the last decision, this court rejected the use 

of Neb. Rev. Stat. § 29-2308 (Cum. Supp. 1992) to reduce 

a sentence deemed excessive by the appellate court despite 

its acknowledgment that the sentencing court had not abused 

its discretion. 4 As pertinent to the situation here, the statute 

remains unchanged. 5

A few years later, in reversing a Court of Appeals decision which had vacated probationary sentences and mandated 

imprisonment, this court relied upon an earlier decision holding 

that the same scope of review applies in the lenient sentence 

context as applies in the excessive sentence context. 6 Thus, this 

court determined, “regardless of whether an appellate court is 

reviewing a sentence for its leniency or for its excessiveness, 

a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless 

there appears an abuse of the trial court’s discretion.” 7

Only a short time after that, the Court of Appeals, with one 

dissent, captured its view of this court’s then-recent precedent, 

stating that “‘an appellate court . . . has an extremely limited 

review of sentences, and sentences within statutory limits are 

uniformly and routinely affirmed despite the appellate court’s 

opinion of the sentence.’” 8 Thus, the majority said, “[s]o long 

as a trial court’s sentence is within the statutorily prescribed 

limits, is supported by competent evidence, and is not based 

on irrelevant considerations, an appellate court cannot say that 

the trial court has abused its discretion . . . .” 9 The dissenting 

3 Riley, supra note 1, 242 Neb. at 893, 497 N.W.2d at 27.

4 See Philipps, supra note 1.

5 See § 29-2308(1) (Reissue 2016).

6 See State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999) (citing State 

v. Jallen, 218 Neb. 882, 359 N.W.2d 816 (1984)).

7 Harrison, supra note 6, 255 Neb. at 1000, 588 N.W.2d at 562.

8 State v. Ruisi, 9 Neb. App. 435, 444, 616 N.W.2d 19, 27 (2000) (quoting 

State v. Hopkins, 7 Neb. App. 895, 587 N.W.2d 408 (1998)).

9 Ruisi, supra note 8, 9 Neb. App. at 444, 616 N.W.2d at 26.
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judge viewed the majority’s language as having concluded that 

“any sentence—without exception—that is within statutory 

limits is not an abuse of discretion and thus not excessive.” 10

Further review was not sought in that appeal.

Nonetheless, this court soon disapproved the State v. Ruisi 11

majority opinion to the extent it suggested that a sentence 

within statutory limits can never be the product of an abuse 

of discretion. 12 In doing so, this court quoted the Ruisi dissent’s observation that “‘[t]he Nebraska Supreme Court has 

left the door ajar—however slightly. It has not foreclosed any 

sentence within statutory limits from being excessive, but it 

strongly [has] suggest[ed] it is a rare exception.’” 13 This court 

also stated that the Ruisi dissent “sets forth an accurate characterization of the law by which appellate courts must review 

sentences claimed to be excessive.” 14

In the intervening years, instances of excessive or excessively lenient sentences have indeed been rare. 15 On similarly 

rare occasions, this court has on further review reversed an 

intermediate appellate court’s conclusion that a sentencing 

court abused its discretion. 16 This suggests to me that both sentencing courts and intermediate appellate courts have largely 

embraced their respective roles. Yet, recalling these jurisprudential developments seems worthwhile, because, in words 

attributed to Winston Churchill, the farther backward you can 

look, the farther forward you are likely to see.

10 Id. at 451, 616 N.W.2d at 31 (Buckley, District Judge, Retired, dissenting).

11 Ruisi, supra note 8.

12 State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).

13 Id. at 398, 622 N.W.2d at 917 (quoting Ruisi, supra note 8 (Buckley, 

District Judge, Retired, dissenting)).

14 Decker, supra note 12, 261 Neb. at 398, 622 N.W.2d at 917.

15 See, e.g., State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006); State 

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

16 See, e.g., State v. Gibson, 302 Neb. 833, 925 N.W.2d 678 (2019); State v. 

Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005).