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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

STATE V. JANIS

Cite as 32 Neb. App. 49

State of Nebraska, appellee, v. 

Clarence Janis, appellant.

___ N.W.2d ___

Filed June 13, 2023. No. A-22-842.

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. Appeal and Error. Plain error may be found on appeal when an error, 

plainly evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, 

reputation, and fairness of the judicial process.

3. Sentences: Appeal and Error. A sentence that is contrary to the court’s 

statutory authority is an appropriate matter for plain error review.

4. Sentences. 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 amount of violence 

involved in the commission of the crime.

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. ____. The court may fulfill the requirement of Neb. Rev. Stat. 

§ 29-2204.02(3) (Reissue 2016) to state its reasoning on the record by a 

combination of the sentencing hearing and sentencing order.

7. Sentences: Motor Vehicles: Licenses and Permits: Revocation: 

Appeal and Error. When revocation of an operator’s license for a 

specified period of time is mandated by statute and is not discretionary 

to the sentencing court, an appellate court may modify a sentencing 

order to include the statutory revocation period when there are no other 

errors in sentencing which require remand.

Nebraska Supreme Court Online Library

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

06/13/2023 09:07 AM CDT
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STATE V. JANIS

Cite as 32 Neb. App. 49

Appeal from the District Court for Sheridan County: Travis 

P. O’Gorman, Judge. Affirmed as modified.

Andrew M. Pope, of Crites, Shaffer, Connealy, Watson, 

Patras & Watson, P.C., L.L.O., for appellant.

Michael T. Hilgers, Attorney General, and Jordan Osborne 

for appellee.

Moore, Bishop, and Welch, Judges.

Bishop, Judge.

INTRODUCTION

Clarence Janis pled no contest to one count of operating a 

motor vehicle to avoid arrest in a willful reckless manner. The 

Sheridan County District Court sentenced him to 18 months’ 

imprisonment. Janis claims the district court erred in imposing 

an excessive sentence; the State claims that the court’s failure 

to revoke Janis’ driver’s license was plain error. We agree there 

was plain error in sentencing and affirm as modified.

BACKGROUND

The record on appeal does not include a bill of exceptions 

for the plea hearing. We therefore look to the transcript and 

presentence investigation report for the factual background 

underlying Janis’ charges.

On August 5, 2022, a law enforcement officer observed an 

individual operating a motor vehicle “at a high rate of speed.” 

Multiple police cruisers pursued the vehicle with their lights 

and sirens activated. The vehicle was operating at speeds of 

over 100 miles per hour, weaving in and out of its lane of 

travel, and failing to yield to law enforcement. As the pursuit 

continued, the vehicle passed two other motorists on the highway who were traveling in the opposite direction. The motorists had to abruptly pull into a ditch to avoid being struck 

by the vehicle. Law enforcement continued the pursuit for 

roughly 15 miles, until the driver of the vehicle turned onto 
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STATE V. JANIS

Cite as 32 Neb. App. 49

a dead-end road. The driver was identified as Janis; he submitted to a preliminary breath test, the results of which showed he 

had a blood alcohol content of .165. Two young children were 

found in the vehicle, as well as their mother.

On August 8, 2022, the State filed a criminal complaint 

in the county court for Sheridan County charging Janis with 

three counts: count I, operating a motor vehicle to avoid 

arrest in a willful reckless manner, a Class IV felony, pursuant to Neb. Rev. Stat. § 28-905(1) (Reissue 2016); count II, 

willful reckless driving, a Class III misdemeanor, pursuant 

to Neb. Rev. Stat. § 60-6,214 (Reissue 2021); and count III, 

child abuse, a Class IIIA felony, pursuant to Neb. Rev. Stat. 

§ 28-707(1) (Cum. Supp. 2022). According to the county 

court’s September 1 order, the State dismissed the willful 

reckless driving charge, but the other two counts were bound 

over to the district court, where an information was filed on 

September 9. The information contained only the charge that 

had been set forth in count I. According to the district court’s 

September 16 journal entry, Janis entered a plea of no contest 

to that charge as a result of a plea agreement. The court found 

beyond a reasonable doubt that the factual basis supported 

Janis’ plea of no contest, and Janis was found guilty of operating a motor vehicle to avoid arrest in a willful reckless manner. The court ordered a presentence investigation report and 

scheduled sentencing.

After a hearing held on November 8, 2022, the district court 

sentenced Janis to 18 months’ imprisonment, with credit for 95 

days already served.

Janis appeals.

ASSIGNMENT OF ERROR

Janis assigns as error that the district court abused its discretion by imposing an excessive sentence.

STANDARD OF REVIEW

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

within the statutory limits absent an abuse of discretion 
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Cite as 32 Neb. App. 49

by the trial court. State v. Lierman, 305 Neb. 289, 940 N.W.2d 

529 (2020).

[2] An appellate court always reserves the right to note 

plain error that was not complained of at trial or on appeal. 

Plain error may be found on appeal when an error, plainly 

evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the 

integrity, reputation, and fairness of the judicial process. State 

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

[3] A sentence that is contrary to the court’s statutory authority is an appropriate matter for plain error review. Id.

ANALYSIS

Excessive Sentence

Janis claims that the district court abused its discretion when 

it imposed an excessive sentence. Janis was convicted of operating a motor vehicle to avoid arrest in a willful reckless manner, a Class IV felony, which is punishable by up to 2 years’ 

imprisonment and 12 months of post-release supervision, a 

$10,000 fine, or both. See Neb. Rev. Stat. § 28-105 (Cum. 

Supp. 2022). There is no minimum sentence or post-release 

supervision requirement. See id. The court sentenced Janis 

to 18 months’ imprisonment, which was within the statutory 

range. As such, we review the court’s sentencing determination 

for an abuse of discretion.

[4,5] 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 amount of violence involved in the commission of 

the crime. State v. Lierman, 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.
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STATE V. JANIS

Cite as 32 Neb. App. 49

Janis was 40 years old at the time of sentencing. According 

to the presentence investigation report, Janis was single and 

had three children. He completed 8th grade and was unemployed at the time of his arrest. Janis had limited employment 

history due to his struggle with substance abuse.

Janis’ criminal history includes convictions for the following: “Minor Possess/Sell/Dispense/Consume Alcohol” in 2002 

($200 fine); “Driving While Under The Influence Of Alcohol” 

in 2004 (bench warrant issued); “Interference With A Police 

Officer” in 2004 (bench warrant issued); “No Valid Driver’s 

License” in 2005 (notice of suspension sent “to the DMV”); 

“DUI - 1st Offense,” “Speeding 11-15 MPH Municipal,” “No 

Operator’s License,” and “No Proof Of Insurance” in 2007 

($500 fine, license revoked for 6 months, 7 days’ jail, and $75 

fine); “Simple Assault” in 2012 (7 months’ jail and 12 months’ 

supervised release); “Drive During Revocation/Impound” in 

2016 (7 days’ jail, license revoked for 1 year); and “Drive 

Under Suspension/Before Reinstated - State” in 2021 (7 

days’ jail).

The probation officer conducted a “Level of Service Case 

Management Inventory” as part of the presentence investigation. Janis was assessed as a “Very High” risk to reoffend. He 

scored in the “Medium” risk range in the criminogenic risk 

factor domains for criminal history, procriminal attitude, and 

antisocial pattern. He scored in the “High” risk range in the 

domains for family/marital and leisure/recreation. He scored 

in the “Very High” risk range in the domains for education/

employment, companions, and alcohol/drug problems. The 

probation officer also conducted a “Nebraska Driver’s Risk 

Inventory-II.” Janis was assessed to be a low risk in the truthfulness category and maximum risk in the categories for alcohol, driver risk, drugs, and stress coping.

Janis has an extensive history of drug and alcohol use. 

He also admitted to previously using various drugs, such as 

marijuana, cocaine, and methamphetamine. Janis claimed that 

he was not consuming alcohol at the time of the presentence 
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Cite as 32 Neb. App. 49

investigation interview and that he intended to abstain from 

consuming alcohol for the rest of his life.

At the sentencing hearing, Janis’ counsel stressed that 

although Janis had a criminal history, it did not include any 

felony convictions. Counsel requested that the district court 

sentence Janis to “time-served as well as a fine.” Counsel 

alternatively requested that the court sentence Janis to a term 

of probation. Janis personally informed the court that he was 

“sorry for what [he] did, and, hopefully, [he could] move on 

with [his] life and put this behind [him].”

The district court stated that it “did consider the remarks 

of counsel” and “all the statutory factors.” The court noted 

that Janis had a “long criminal record” and that his conduct in 

this case was “very concerning.” It pointed out that Janis was 

driving at “[s]peeds in excess of 100” while “two times over 

the legal limit [of] blood alcohol” with “two kids in the car.” 

The court further observed that “two other motorists . . . had to 

take evasive action to prevent an accident.” The court said that 

Janis was “lucky . . . all this is is a Class IV felony” because 

the circumstances “could be a lot worse with some fatalities.” 

Given this conduct, the court concluded that “anything less 

than a period of incarceration would depreciate the seriousness of the offense.” It then sentenced Janis as previously set 

forth. That same day, the court entered a written sentencing 

order consistent with its earlier oral pronouncement that specifically stated there were “substantial and compelling reasons 

why [Janis] cannot effectively and safely be supervised in 

the community.”

In his brief on appeal, Janis refers to Neb. Rev. Stat. 

§ 29-2204.02 (Reissue 2016), which requires the imposition 

of probation for a Class IV felony unless certain exceptions 

apply. As applicable here, under § 29-2204.02(2)(c) probation does not have to be imposed if “[t]here are substantial 

and compelling reasons why the defendant cannot effectively 

and safely be supervised in the community, including, but 

not limited to, the criteria in subsections (2) [factors which 
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Cite as 32 Neb. App. 49

weigh against probation] and (3) [factors which favor probation] of section 29-2260.” Further, under § 29-2204.02(3), if 

“a sentence of probation is not imposed, the court shall state 

its reasoning on the record.” Janis claims the district court 

failed to adequately consider all relevant factors “as there were 

not substantial and compelling reasons provided at sentencing 

as to why Janis could not be effectively and safely supervised 

in the community.” Brief for appellant at 11.

[6] Although § 29-2204.02 does not specifically define the 

phrase “substantial and compelling,” “both terms have commonly understood meanings and it is within the court’s discretion to determine that its reasons are weighty enough to be substantial and compelling.” State v. Baxter, 295 Neb. 496, 508, 

888 N.W.2d 726, 735 (2017). Further, § 29-2204.02(3) requires 

the court “to state its ‘reasoning’ rather than its ‘reasons’ on 

the record.” State v. Baxter, 295 Neb. at 506, 888 N.W.2d at 

734. The court may fulfill this statutory requirement to state its 

reasoning on the record “by a combination of the sentencing 

hearing and sentencing order.” Id. at 507, 888 N.W.2d at 735. 

The district court sufficiently set forth its reasons and reasoning at the sentencing hearing and in its sentencing order, as 

set forth above. We find no abuse of discretion by the court in 

its determination that substantial and compelling reasons exist 

for why Janis cannot effectively and safely be supervised in 

the community.

Janis further contends that the district court abused its discretion when it “applied too much emphasis on the nature of 

the offense . . . and not enough emphasis on the other factors, 

including whether Janis could appropriately be supervised in 

the community through an adequate probationary term.” Brief 

for appellant at 9. He notes that he had “long periods of lawabiding behavior” and that his prior convictions were for misdemeanor offenses. Id. at 10. He argues that he would benefit 

from a term of probation because he has various mental health 

and substance abuse struggles.
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STATE V. JANIS

Cite as 32 Neb. App. 49

The district court had before it all the information that 

Janis suggests weighs in favor of a lesser sentence. However, 

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, and a sentencing court is accorded very wide discretion in imposing a 

sentence. See State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 

(2017). We cannot say the court abused its discretion in determining the sentence imposed.

Plain Error

In its brief on appeal, the State argues that the district court 

committed plain error in failing to order the revocation of 

Janis’ license for a period of 2 years. We agree. Plain error may 

be found on appeal when an error, plainly evident from the 

record, prejudicially affects a litigant’s substantial right and, 

if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. State v. Kantaras, 294 

Neb. 960, 885 N.W.2d 558 (2016). A sentence that is contrary 

to the court’s statutory authority is an appropriate matter for 

plain error review. Id.

Janis was convicted of operating a motor vehicle in a willful reckless manner to avoid arrest under § 28-905(1) and 

(3)(a)(iii). Section 28-905 provides in relevant part:

(1) Any person who operates any motor vehicle to flee 

in such vehicle in an effort to avoid arrest or citation 

commits the offense of operation of a motor vehicle to 

avoid arrest.

(2)(a) Except as otherwise provided in subsection (3) 

of this section, any person who violates subsection (1) of 

this section shall be guilty of a Class I misdemeanor.

(b) The court may . . . order that the operator’s license 

of such person be revoked or impounded for a period of 

not more than one year . . . .
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(3)(a) Any person who violates subsection (1) of this 

section shall be guilty of a Class IV felony if, in addition 

to the violation of subsection (1) of this section, one or 

more of the following also applies:

. . . .

(iii) The flight to avoid arrest includes the willful reckless operation of the motor vehicle.

(b) The court shall, as part of the judgment of conviction under subdivision (a) of this subsection, order 

that the operator’s license of such person be revoked or 

impounded for a period of two years and order the person not to drive any motor vehicle for any purpose in 

the State of Nebraska for a like period. The revocation 

or impoundment shall be administered upon sentencing, 

upon final judgment of any appeal or review, or upon the 

date that any probation is revoked.

Notably, when the offense is a misdemeanor under § 28-905(2), 

the revocation of the offender’s driver’s license for up to 1 

year is discretionary to the sentencing court. However, when 

the offense qualifies as a Class IV felony, as in Janis’ case, the 

revocation of the offender’s driver’s license is mandatory. See 

§ 28-905(3)(b). See, also, State v. Collins, 307 Neb. 581, 590, 

950 N.W.2d 89, 97 (2020) (use of “‘may’ indicates that license 

revocation is discretionary when the offense is a misdemeanor” 

but when the “offense is [a] felony, court ‘shall’ revoke defendant’s license for 2 years”).

Janis’ offense qualified as a Class IV felony because his 

flight to avoid arrest included the “willful reckless operation” 

of a motor vehicle under § 28-905(3)(a)(iii). Because this was 

a felony, the revocation of Janis’ driver’s license for 2 years 

was mandated under the statute. Therefore, the district court’s 

failure to order the revocation or impoundment of Janis’ 

driver’s license for a period of 2 years was plain error. See, 

State v. Weller, No. A-20-040, 2020 WL 4778383 (Neb. App. 

Aug. 18, 2020) (selected for posting to court website) (district court’s failure to order 2-year license revocation was 
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plain error; sentence modified accordingly); State v. Taylor, 

No. A-19-965, 2020 WL 4459417 (Neb. App. Aug. 4, 2020) 

(selected for posting to court website) (district court’s failure 

to order 2-year license revocation was plain error; sentence 

modified accordingly). See, also, State v. Vanness, 300 Neb. 

159, 912 N.W.2d 736 (2018) (trial court’s plain error in ordering indeterminate sentences with same minimum and maximum term of years instead of determinate sentences required 

modification on appeal when trial court’s intended sentences 

were apparent from record and there was no other error 

in sentencing).

[7] Accordingly, when revocation of an operator’s license 

for a specified period of time is mandated by statute and is not 

discretionary to the sentencing court, an appellate court may 

modify a sentencing order to include the statutory revocation 

period when there are no other errors in sentencing which 

require remand. See, State v. Vanness, supra; State v. Weller, 

supra; State v. Taylor, supra. We therefore modify Janis’ sentence to correct the plain error and impose a 2-year license 

revocation in accordance with § 28-905(3)(b).

CONCLUSION

We affirm Janis’ sentence as modified to correct the plain 

error discussed above. The sentencing order shall be modified 

to include the requirement that Janis’ driver’s license shall be 

revoked for 2 years as required under § 28-905(3)(b).

Affirmed as modified.