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 January 14, 2014. No. A-13-457.

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

Affirmed in part, and in part reversed and remanded with directions.

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

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

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

PIRTLE, Judge.

INTRODUCTION

Paul B. Kenyiba appeals his convictions and sentences by the district court for Lancaster 

County for driving under the influence (DUI), third offense, and willful reckless driving entered 

on April 30, 2013. For the reasons that follow, we affirm.

BACKGROUND

On July 12, 2012, the State filed an information charging Kenyiba with three counts: (1) 

DUI, with refusal of chemical test (two prior convictions); (2) willful reckless driving, first 

offense; and (3) leaving the scene of an accident, first offense. Kenyiba was arraigned on July 25 

and entered pleas of not guilty. An enhancement hearing was held on April 22, 2013, and a 

bench trial was held on April 24.

Bryan Delgado testified that on April 6, 2012, between 4 and 5 p.m., he was driving near 

a grocery store at 27th Street and Cornhusker Highway in Lincoln, Nebraska. He testified he saw 

a silver car pull out of the grocery store’s parking lot, hit another vehicle, and drive off. He 

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testified that he pulled over to check on the driver of the vehicle that was hit and that he then 

pursued the silver car and called the 911 emergency dispatch service. He caught up to the car and 

saw that it was weaving in and out of traffic and appeared to be chasing another vehicle. He said 

he saw the silver car ram the vehicle it was chasing and attempt to sideswipe it. Delgado 

continued to follow the silver car and kept in contact with the police as he followed the silver car 

to an apartment complex near First and Adams Streets. He parked across the street from the 

apartment complex and waited for the police to arrive. Delgado was shown a picture of the silver 

car, which was offered as exhibit 1, and he confirmed it was the silver car in question.

Jean Lado Andrea testified that she was driving in front of the silver car on Cornhusker 

Highway and that she lives in the apartment complex where the silver car stopped. Andrea 

testified that she left the same grocery store and that she looked in her rearview mirror and saw a 

silver car behind her driving erratically, “swerving and hitting cars.” Andrea testified that she 

recognized the driver of the silver car as Kenyiba, who used to be a family friend. Andrea 

testified Kenyiba was the only person in the silver car, that he hit two or three cars on 

Cornhusker Highway, and that he then followed Andrea back to her apartment complex. Andrea 

testified that when she got home, she told her father about what happened, and that the police 

arrived approximately 30 minutes later. Andrea testified that the silver car in exhibit 1 was the 

silver car in question and that she had no doubt it was Kenyiba who was driving.

A 9-year-old boy testified that he was outside playing basketball in the apartment 

complex when a gray car drove through the complex and hit another car. The boy stated that 

Kenyiba was driving the gray car and that he was the only person in the car. The boy spoke with 

the police about the incident when they arrived, and he testified that the car in exhibit 1 was the 

car he saw Kenyiba driving that day. The boy stated he was sure he saw Kenyiba hit a green car 

and that he had not heard about the accident from anyone else.

The responding officer in this case was Carla Cue of the Lincoln Police Department. Cue 

testified that when she arrived at the apartment complex, she found the silver car in question but 

no one was in it. She was informed the suspect had been standing in front of apartment No. 4, so 

she went there to speak with the residents. She was directed to the commons area of the 

apartment complex, where she found Kenyiba, who smelled strongly of alcohol and had 

bloodshot, watery eyes. Cue asked Kenyiba if the silver Chrysler Sebring in question was his, 

and Kenyiba said yes. Cue asked Kenyiba to accompany her to her police cruiser, and she noted 

he was unsteady as he walked. Cue testified that in her opinion, Kenyiba was under the influence 

of alcohol and could not have safely operated a vehicle in his condition. Cue also testified that 

she did not see any alcohol near him when she spoke to him in the commons area.

Cue conducted a records check on Kenyiba when she returned to her cruiser and 

discovered that Kenyiba had an active warrant. At that time, she placed him under arrest and 

searched the silver Sebring. She did not find any alcohol in the car. Cue also took pictures of the 

car, which show that it sustained damage to the rear passenger side quarter panel, the rear 

passenger side door, the front passenger side quarter panel and bumper, and also the front 

bumper. Cue testified that the damage to the car appeared fresh. Cue testified that there was 

damage on the green vehicle consistent with the damage on Kenyiba’s car.

After finishing her investigation at the apartment complex, Cue transported Kenyiba to 

jail and an Officer Dlouhy attempted to do a chemical breath test. Dlouhy read the postarrest 

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chemical test advisement to Kenyiba, and Kenyiba acknowledged that he understood. Dlouhy 

followed the procedures set forth in title 177 of the Nebraska Administrative Code. Dlouhy 

instructed Kenyiba on how to blow into the machine for his breath test, but Kenyiba said he was 

not the driver of the vehicle and was not going to blow into the machine. Dlouhy held the 

mouthpiece up to Kenyiba’s mouth and told him that he would receive a citation for refusing the 

chemical test if he did not blow into the machine, and Kenyiba continued to decline testing.

Dlouhy testified that he spent a significant period of time with Kenyiba and that he 

noticed Kenyiba smelled strongly of alcoholic beverage, he had bloodshot eyes, and his 

demeanor was “very up and down.” Dlouhy testified that in his opinion, Kenyiba was under the 

influence of alcohol and was in no condition to safely operate a motor vehicle.

The district court found Kenyiba guilty of willful reckless driving and DUI with refusal, 

but that court found Kenyiba not guilty of leaving the scene of an accident.

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 11 is a “Daily Disposition Report” from Jefferson District Court in Kentucky, 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 12 and 13 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 asserted 

they should not be used for enhancement of his sentence in this case. 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 4 to 5 years’ imprisonment for the DUI and a consecutive 

period of 90 to 90 days’ imprisonment for reckless driving. The district court also revoked 

Kenyiba’s driver’s license for 15 years. Kenyiba timely appeals.

ASSIGNMENTS OF ERROR

Kenyiba asserts the evidence adduced at trial was insufficient and that the trial court erred 

in permitting the use of his prior Kentucky convictions for enhancement purposes under Neb. 

Rev. Stat. § 60-6,197.02(1)(a)(i)(C) (Cum. Supp. 2012). Kenyiba also asserts the sentences 

imposed were excessive and constituted an abuse of discretion.

STANDARD OF REVIEW

In reviewing a sufficiency of the evidence claim, whether the evidence is direct, 

circumstantial, or a combination thereof, the standard is the same: An appellate court does not 

resolve conflicts in the evidence, pass on the credibility of the witnesses, or reweigh the 

evidence; such matters are for the finder of fact. State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 

698 (2013). The relevant question for an appellate court is whether, after viewing the evidence in 

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the light most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt. Id.

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).

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).

ANALYSIS

Sufficiency of Evidence.

Kenyiba asserts the evidence was insufficient to find him guilty of either willful reckless 

driving or DUI.

Kenyiba was convicted of count I, DUI, with refusal of chemical test, in violation of Neb. 

Rev. Stat. § 60-6,196 (Reissue 2010). Section 60-6,196 provides:

(1) It shall be unlawful for any person to operate or be in the actual physical 

control of any motor vehicle:

(a) While under the influence of alcoholic liquor or any drug;

(b) When such person has a concentration of eight-hundredths of one gram or 

more by weight of alcohol per one hundred milliliters of his or her blood[.]

Kenyiba asserts the district court erred in its verdict because the State did not prove 

beyond a reasonable doubt that Kenyiba operated a motor vehicle on April 6, 2012, and that if 

Kenyiba operated a motor vehicle, whether he was intoxicated at that time. As a result, Kenyiba 

asserts the State is unable to prove an essential element of the crime.

A violation of § 60-6,196 is one offense which can be proved in more than one way. State 

v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000). It may be proved by establishing either that one 

was in actual physical control of a motor vehicle while under the influence of alcohol or that one 

was in actual physical control of a motor vehicle while having more than the prohibited amount 

of alcohol in his or her body. State v. Robinson, 10 Neb. App. 848, 639 N.W.2d 432 (2002).

In this case, Kenyiba refused to submit to a chemical test, so the threshold for proof 

depends on whether Kenyiba had actual physical control of the vehicle while under the influence 

of alcohol. Reviewing the totality of the evidence in the light most favorable to the prosecution, 

we find a rational trier of fact could have found the essential elements of the crime were present 

beyond a reasonable doubt.

Circumstantial evidence may be used to establish physical control of a motor vehicle 

within the meaning of the statute prohibiting operating or being in actual physical control of a 

motor vehicle while under the influence of alcohol. State v. Miller, 226 Neb. 576, 412 N.W.2d 

849 (1987). Flight is circumstantial evidence that may be used by the trier of fact to establish 

guilt beyond a reasonable doubt. State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998).

The evidence shows Kenyiba was the individual in physical control of the motor vehicle. 

Kenyiba owned the car, and eyewitnesses testified that Kenyiba was driving it on April 6, 2012. 

Delgado testified that he saw a silver car leave the grocery store parking lot and strike a car. 

After striking the car, the silver car drove away from the scene of the accident. Delgado testified 

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that he followed the silver car to an apartment complex at First and Adams Streets. Delgado 

identified a silver Sebring in exhibit 1 as the car he followed, and Kenyiba testified that the same 

silver Sebring belonged to him. Kenyiba did not present any evidence that anyone other than him 

had been driving the Sebring.

Andrea testified that as she looked in her rearview mirror, she witnessed the silver car 

driving erratically, swerving, and hitting cars. She testified that she was acquainted with Kenyiba 

and that she had “no doubt” he was the driver of the silver car. She testified that the silver car 

followed her into the apartment complex at First and Adams Streets.

The 9-year-old boy testified that he was outside playing basketball in the apartment 

complex when a gray car drove through the complex and hit another car. The boy stated that 

Kenyiba was driving the gray car and that he was the only person in the car. The boy testified 

that the car in exhibit 1 was the car he saw Kenyiba driving that day. He stated he was sure he 

saw Kenyiba hit the green car in the parking lot. Cue testified that when she arrived and 

inspected the Sebring, there were several areas of what appeared to be fresh damage.

Having concluded that a reasonable trier of fact could have found the above evidence was 

sufficient for a finding that Kenyiba was the individual in physical control of the silver car, we 

consider whether the evidence is such that a rational trier of fact could have found beyond a

reasonable doubt that Kenyiba was under the influence of alcohol while in control of the motor 

vehicle.

The phrase “under the influence of alcoholic liquor or of any drug” means the ingestion 

of alcohol or drugs in an amount sufficient to impair to any appreciable degree the driver’s 

ability to operate a motor vehicle in a prudent and cautious manner. State v. Falcon, 260 Neb. 

119, 615 N.W.2d 436 (2000).

As stated above, the witnesses testified that Kenyiba was operating the car in a manner 

which suggests he was under the influence. The witnesses testified that the car was in at least one 

accident and that Kenyiba then fled the scene. The witnesses also testified that Kenyiba was 

driving erratically and swerving on a highway.

After sufficient foundation is laid, a law enforcement officer may testify that in his or her 

opinion a defendant was driving under the influence. State v. Howard, 253 Neb. 523, 571 

N.W.2d 308 (1997). A police officer’s testimony, based on personal observations of the 

defendant, is sufficient to sustain a finding that the defendant operated a motor vehicle while 

under the influence of alcohol. State v. Batts, 233 Neb. 776, 448 N.W.2d 136 (1989).

Evidence to sustain a DUI conviction includes erratic driving, red and watery eyes, 

slurred speech, and a staggered walk, as well as the odor of alcohol emanating from his or her 

person and his or her failure of field sobriety tests. State v. Rodgers, 2 Neb. App. 360, 509 

N.W.2d 668 (1993).

Cue testified that only a short period of time elapsed between the time of the call to 

police and her response to the apartment complex. Cue searched the commons area, where she 

found Kenyiba, and she searched the Sebring and found there was no alcohol present in either 

location. There is no evidence that Kenyiba lived in the apartment complex and could have 

gained access to alcohol in his home. Similarly, there is no evidence that Kenyiba consumed or 

had possession of any alcohol during the time that elapsed between the operation of the vehicle 

and when he was apprehended.

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Officer Cue testified that when she approached Kenyiba in the commons area, he smelled 

strongly of alcohol and had bloodshot, watery eyes. Cue testified that she asked Kenyiba to 

accompany her to her police cruiser and that she noted he was unsteady as he walked. Cue 

inspected the vehicle and found what appeared to be recent damage. Cue also testified that 

Kenyiba identified the silver Sebring as his car and did not deny that he was driving the car. Cue 

testified that in her opinion, Kenyiba was under the influence of alcohol and could not have 

safely operated a vehicle in his condition.

Dlouhy also testified that he spent a significant period of time with Kenyiba and that he 

noticed Kenyiba smelled strongly of alcohol, he had bloodshot eyes, and his demeanor was “very 

up and down.” Dlouhy testified that in his opinion, Kenyiba was under the influence of alcohol 

and was in no condition to safely operate a motor vehicle.

In addition, a defendant’s refusal to submit to a chemical test or tests of the defendant’s 

blood, breath, or urine is admissible evidence for a violation of § 60-6,196 as long as the 

defendant was advised that refusal to submit to the test is a separate offense. See Neb. Rev. Stat. 

§ 60-6,197 (Cum. Supp. 2012). The evidence shows that Kenyiba was advised of this through his 

postarrest chemical test advisement and that this was confirmed by Dlouhy’s testimony. Cue 

testified that Kenyiba stated, “[Y]ou did not catch me driving, I won’t take the tests.”

We find the evidence presented at trial was sufficient to find that Kenyiba operated or 

was in physical control of the silver Sebring and that he was under the influence of alcoholic 

liquor while doing so. We affirm the findings of the district court with regard to the DUI 

conviction.

Kenyiba was also convicted of count II, willful reckless driving, in violation of Neb. Rev. 

Stat. § 60-6,214 (Reissue 2010), which provides that “[a]ny person who drives any motor vehicle 

in such a manner as to indicate a willful disregard for the safety of persons and property shall be 

guilty of willful reckless driving.”

Kenyiba asserts the evidence is insufficient to find him guilty of willful reckless driving, 

as he asserts the State failed to prove he operated the silver Sebring. Kenyiba asserts the 

witnesses’ testimony is contradictory, inconsistent, and unreliable. However, this is a matter of 

weight and credibility of the evidence, which is not reweighed on appeal. State v. Wiedeman, 286 

Neb. 193, 835 N.W.2d 698 (2013).

We found, above, that the evidence presented at trial was sufficient to find that Kenyiba 

was driving the silver Sebring on April 6, 2012. The witnesses at trial testified that Kenyiba was 

the person operating the car and that he was driving erratically, swerving, and hitting cars. The 

evidence shows that he struck two or more vehicles with his car in the time between leaving the 

grocery store parking lot and parking at the apartment complex. The evidence also establishes 

that Kenyiba chose to operate a motor vehicle while he was under the influence of alcohol, 

which presents a danger to the persons and property in his path. The State provided sufficient 

evidence to prove that Kenyiba was driving his motor vehicle in such a manner as to indicate a 

willful disregard for the safety of person and property, and we affirm the conviction for willful 

reckless driving.

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Enhancement.

Kenyiba asserts the district court erred in permitting the use of exhibits 11, 12, and 13 for 

enhancement purposes. He asserts these exhibits do not conclusively show what charges Kenyiba 

pled to and was sentenced to. We find that Kenyiba’s prior convictions are supported by relevant 

and competent evidence and that the district court properly enhanced his DUI conviction to a 

third offense.

In a proceeding to enhance a 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).

The phrase “prior conviction” means “[a]ny conviction under a law of another state if, at 

the time of the conviction under the law of such other state, the offense for which the person was 

convicted would have been a violation of [§] 60-6,196 . . . .” § 60-6,197.02(1)(a)(i)(C). 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) requires the State to present a court-certified copy or an 

authenticated copy of a prior conviction in another state, and the statute states the copies shall be 

prima facie evidence of such prior conviction. See State v. Garcia, supra. Under the statute, the 

convicted person is 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--January 24, 2007, in case No. 07-T-007094, 

and March 9, 2007, in case No. 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, corresponding with uniform citations contained in 

exhibits 12 and 13; 07-T-007074 corresponds with citation No. 7G5161562 and 07-T-022817 

corresponds with citation No. 7K1803542.

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 

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were court-certified and established prima facie evidence of the convictions. See, 

§ 60-6,197.02(2); State v. Garcia, supra.

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.

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. See 

State v. Garcia, supra.

Therefore, we agree that both convictions were valid for purposes of enhancement and 

that the district court did not err when it enhanced Kenyiba’s current DUI to a third offense.

Excessive Sentences.

Kenyiba asserts the sentences imposed by the district court are excessive. He asserts the 

court ignored the relevant factors and society’s best interests when sentencing Kenyiba to 4 to 5 

years’ imprisonment for DUI, third offense, and 90 to 90 days’ imprisonment for willful reckless 

driving.

Under Neb. Rev. Stat. § 29-2308 (Reissue 2008), an appellate court is obligated to review 

those sentences claimed to be excessive and reduce those determined to be excessive. 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). A judicial abuse of 

discretion exists only when the reasons or rulings of the trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying a just result in matters submitted for 

disposition. State v. White, 276 Neb. 573, 755 N.W.2d 604 (2008).

Kenyiba was convicted of DUI, with refusal of chemical test (two prior convictions), 

which is a Class IIIA felony punishable by a maximum of 5 years’ imprisonment, a $10,000 fine, 

or both. See Neb. Rev. Stat. §§ 28-105 (Reissue 2008). Neb. Rev. Stat. § 60-6,197.03(4) (Cum. 

Supp. 2012) also provides if a person has two prior convictions, such person shall be guilty of a 

Class W misdemeanor, and the court shall, as part of the judgment of conviction, order that the 

operator’s license of such person be revoked for a period of 15 years from the date ordered by 

the court.

Kenyiba was also convicted of willful reckless driving, a Class III misdemeanor, which is 

punishable by a maximum of 3 months’ imprisonment, a $500 fine, or both. See, Neb. Rev. Stat. 

§ 60-6,215 (Reissue 2010); Neb. Rev. Stat. § 60-6,216 (Reissue 2010); Neb. Rev. Stat. § 28-106 

(Cum. Supp. 2012). It also carries a mandatory license revocation of 30 days to 1 year.

§ 60-6,216.

Kenyiba was sentenced to a period of 4 to 5 years’ imprisonment for DUI, with the 

requisite 15-year license revocation. He was also sentenced to a consecutive period of 90 to 90 

days’ imprisonment for willful reckless driving.

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).

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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 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, at the sentencing hearing, Kenyiba was sentenced for a separate DUI, with a 

blood-alcohol content of .15 or higher, which occurred on March 31, 2012. Kenyiba’s charges in 

this case occurred only a week later, on April 6.

The court reviewed the presentence report and considered “the nature and circumstances 

of the crime and the history, character, and condition of the defendant” in imposing Kenyiba’s 

sentences. The court noted Kenyiba’s long history of alcohol-related convictions and his refusal 

to get treatment. The court found that imprisonment was necessary for the protection of the 

public, because the risk was substantial that during any period of probation, Kenyiba would 

engage in additional criminal conduct and promote disrespect for the law.

Though Kenyiba’s sentences are toward the upper end of the sentencing range for his 

convictions, such sentences were warranted due to the gravity of the offenses and his extensive 

criminal record. We cannot say that the district court abused its discretion by imposing sentences 

within the statutory range.

Finally, as stated earlier, a conviction for willful reckless driving carries a mandatory 

license revocation of 30 days to 1 year. See, § 60-6,216; § 28-106. Although an appellate court 

ordinarily considers only those errors assigned and discussed in the briefs, an appellate court 

may, at its option, note plain error. State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).

In reviewing the sentences in this case, we note the district court did not order revocation 

of Kenyiba’s license for any period of time on count II, willful reckless driving. Section 60-6,216 

states that

the court shall, as part of the judgment of conviction, order such person not to drive any 

motor vehicle for any purpose for a period of not less than thirty days nor more than one 

year from the date ordered by the court and shall order that the operator’s license of such 

person be revoked for a like period.

Therefore, we find the trial court plainly erred.

Section 60-6,216 states the revocation shall be administered upon sentencing, upon final 

judgment of any appeal or review, or upon the date that any probation is revoked. The Nebraska 

Supreme Court has stated that the same language, in reference to revocation provided for in Neb. 

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Rev. Stat. § 60-6,197.06 (Reissue 2010) means the period of revocation need not necessarily 

begin the same date as the sentencing order and may instead commence upon whatever date the 

court, in its sound discretion, directs. State v. Policky, 285 Neb. 612, 828 N.W.2d 163 (2013). 

Thus, we remand to the district court the limited issue of the period of license revocation for 

willful reckless driving and the date upon which the revocation will commence.

CONCLUSION

We find there was sufficient evidence to support Kenyiba’s convictions for willful 

reckless driving and DUI. The district court did not err in using Kenyiba’s prior Kentucky DUI 

convictions to enhance his conviction in this case. Kenyiba’s sentence was within statutory limits 

and was not an abuse of discretion. Accordingly, the foregoing portions of the district court’s 

findings are affirmed.

We find plain error only with regard to the district court’s omission of the mandatory 

license revocation for willful reckless driving. We remand this issue to the district court for the 

limited purpose of determining the appropriate period of license revocation and when it shall 

commence.

AFFIRMED IN PART, AND IN PART REVERSED

AND REMANDED WITH DIRECTIONS.

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