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300 Nebraska Report

STATE v. STEELE

Cite as 300 Neb. 617

State of Nebraska, appellee, v.

Markel D. Steele, appell

___ N.W.2d ___

Filed July 27, 2018. No. S-17-951.

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. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

3. Sentences: Appeal and Error. Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court 

must determine whether a 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.

4. Sentences. In determining a sentence to be imposed, relevant factors 

customarily considered and applied 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 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.

Appeal from the District Court for Lancaster County: Joh

A. Colborn, Judge. Affirme

Jeffrey Pickens and Kelly S. Breen, of Nebraska Commission 

on Public Advocacy, for appellant.

Nebraska Supreme Court Online Library

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

10/12/2018 01:11 AM CDT
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STATE v. STEELE

Cite as 300 Neb. 617

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

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

Papik, JJ., and Dobrovolny, District Jud

Papik, J

Markel D. Steele pled guilty to one count of second degree 

murder and one count of first degree assault for his involvement in an armed robbery and shooting that left one victim 

dead and another paralyzed. Steele, who was 17 years old at 

the time of the offenses, was sentenced to 60 years’ to life 

imprisonment for second degree murder and to 40 to 50 years’ 

imprisonment for first degree assault, with the sentences to 

run consecutively. Because we find no merit to the contentions 

Steele raises on appeal regarding his sentences, we affirm.

BACKGROUND

Factual Basis for Charges.

The following details regarding the incident underlying 

Steele’s convictions are summarized from the factual basis 

recited by the State at Steele’s plea hearing.

On April 18, 2016, at approximately 3 p.m., law enforcement responded to a report of gunshots at a residence near 19th 

and Euclid Streets in Lincoln, Nebraska. Dispatchers relayed 

to law enforcement that approximately eight gunshots were 

heard in the residence and that “two black males” were seen 

leaving the residence around the time of the shooting. One was 

reported as wearing black jeans and a gray hoodie with the letters “USA” on the back, and the other was wearing jeans and 

a black “puffy” coat.

As officers first arrived in the area, they located a black 

male wearing black jeans and a gray hoodie with the letters 

“USA” walking westbound a block or two from the reported 

location of the shooting. This individual, later identified as 

Xheronte Lewis, was detained by police and admitted to being 

at the residence when shots were fired.
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Inside the residence, officers located two victims, identified 

as Christopher Coleman and Jerry Griffis, both of whom had 

sustained gunshot wounds. Officers also found a dog that was 

suffering from gunshot wounds. Three small children were also 

present in the residence.

Coleman, who was found just inside the front doorway in 

the living room, was pronounced dead at the scene. Griffis, 

who was found in the kitchen, was transported to a nearby 

hospital where he received extensive treatment for a gunshot 

wound that passed through his spine. The dog was taken to an 

emergency veterinary clinic where it died from its wounds.

An autopsy on Coleman later revealed that the cause of his 

death was a gunshot wound to the neck. Griffis was hospitalized for approximately 11

⁄2 months as a result of his injuries. 

He was diagnosed with multiple gunshot wounds, a vertebra 

fracture, paraplegia, “right and left hemopneumothorax,” bilateral pulmonary contusion, and a rib fracture. He is now partially paralyzed.

Griffis gave a statement to police approximately a week 

after the shooting. He stated that he had gone to Coleman’s 

house on April 18, 2016, to sell him some marijuana. While 

there, he heard the front door open and immediately heard two 

gunshots in quick succession. He stated that he could not see 

the shooter initially, but could see Coleman facing the shooter. 

He then saw Coleman turn “180 degrees” and fall to the floor 

and believed that Coleman was struck by one or both of the 

shots fired. Griffis stated that he then observed a black male 

in his early twenties wearing all black clothing holding a black 

semiautomatic handgun.

Griffis reported that the black male shot Coleman’s dog 

two or three times when it appeared in the kitchen doorway. 

The dog yelped and ran to its kennel toward the back of the 

kitchen. Immediately after shooting the dog, the black male 

pointed the gun at Griffis and fired one or two shots into his 

torso. Griffis immediately fell to the ground. When he looked 

up, the black male had walked a few steps toward him and 

was pointing the gun at his head. Griffis put his left hand out 
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in front of the gun in an attempt to block a shot to his head. 

He heard another gunshot and felt pain on his hand and face. 

Griffis stated that he “played dead” in order to avoid being 

shot again.

After the last shot, Griffis heard two male voices in the 

kitchen. He “heard the male closest to him, presumably the 

shooter, say, . . . Where’s it at? Find the shit . . . .” He then 

heard the intruders rifling through cabinets and drawers. A 

quantity of marijuana was later found to have been taken from 

the residence. Using a photograph that had been posted on 

Facebook, Griffis was able to identify Steele as the shooter.

Investigators processed the crime scene and recovered seven 

bullet casings from the residence. Two spent rounds were 

found in the dog’s body, one round was collected from Griffis’ 

body, and two rounds were discovered at the residence. A 

firearms analyst concluded that all of the bullets were fired 

from the same gun, which was identified as a “Hi-Point JHP” 

.45-caliber firearm.

Investigators also took photographs and castings of fresh 

footprints from the kitchen floor and from the mud in the 

backyard of the residence, which appeared to be consistent 

with Nike “Air Force” tennis shoes. A witness described Steele 

as having worn Nike “Air Force or Air Max” tennis shoes at 

the time of the shooting. When Steele was later arrested, he 

was wearing Nike “Air Force” tennis shoes, which were seized 

by police and analyzed at the Nebraska State Patrol crime laboratory. The analyst found that the castings and photographs 

of the footprints taken at the crime scene corresponded to the 

pattern and size of Steele’s left shoe.

Steele was arrested and interviewed by police on May 5, 

2016. He denied any involvement in the robbery or homicide, but admitted that he had a Facebook account and that 

he used Facebook to communicate with others. Investigators 

obtained a search warrant to access his Facebook records, 

which showed that on April 7, Steele was in communication 

with Lewis about possibly doing a narcotics-related robbery 

on Euclid Street. This conversation continued over the course 
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of 11 days while the two attempted to find a gun and a driver 

for the robberies. The conversation included a screen shot of a 

text message conversation in which Lewis asked another individual to drive. That individual then asked Lewis where this 

would occur, and Lewis responded, “‘Euclid.’”

After that individual declined to participate, Steele told 

Lewis that he found a driver named “T.J.,” later identified 

as Terique Jackson, and that they would be over to pick him 

up in a BMW, which was the vehicle Jackson was driving at 

the time.

Lewis was deposed and testified that he observed Steele 

with a black .45-caliber semiautomatic handgun just before 

the robbery and homicide on Euclid Street. He also testified 

that Jackson was the driver who transported them to the Euclid 

Street residence on April 18, 2016, and that Lewis made plans 

with Steele to meet up after the robbery.

While incarcerated at the Lancaster County jail, Steele 

admitted to more than one confidential informant that he had 

shot Coleman and Griffis on April 18, 2016, at the Euclid 

Street residence.

Steele was 17 years old on the date of the offenses.

Steele’s Guilty Pleas.

Steele was initially charged with eight different felony 

offenses arising out of the incident on Euclid Street: first 

degree murder, first degree assault, robbery, abandonment or 

cruel neglect of an animal, and four counts of the use of a 

firearm to commit a felony. The parties later advised the district court that they had reached a plea agreement. Under the 

agreement, Steele would plead guilty to an amended information which reduced his first degree murder charge to second 

degree murder, retained the first degree assault charge, and 

dropped the other six counts. As part of the plea agreement, the 

State also agreed to dismiss various charges it had filed against 

Steele in Lancaster County District Court arising out of two 

different incidents and to forgo any additional charges based on 

those other incidents.
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STATE v. STEELE

Cite as 300 Neb. 617

Steele entered guilty pleas in accordance with the parties’ 

agreement. The district court accepted the pleas after concluding that there was a sufficient factual basis for the pleas and 

that Steele understood the nature of the charges and made the 

plea freely, voluntarily, knowingly, and intelligently.

Sentencing Hearing.

At the sentencing hearing, the district court acknowledged 

receipt of the presentence investigation report and heard arguments from both parties. Then, prior to imposing sentences, the 

district court stated:

In determining the appropriate sentences, the Court considers a number of factors. I recognize that Mr. Steele 

was 17 years of age when these crimes were committed. 

Although I do not believe that the Court is required to 

do so, I have followed the requirements of Miller versus Alabama, where the United States Supreme Court 

indicated that the court consider the juvenile’s special 

circumstances in light of the principles and purposes of 

juvenile sentencing, and I have taken into account how 

children are different and how these differences counsel 

against irrevocably sentencing a juvenile to a lifetime 

in prison.

I have considered the defendant’s age; mentality; education and experience; social and educational background 

and cultural background; past criminal record or record 

of law abiding conduct; motivation for the offense; the 

nature of the offense; the amount of violence involved in 

the commission of the crime.

And although not required to do so, I have also considered the mitigating factors which led to the commission 

of this offense as set forth in Nebraska Revised Statute 

Section 28-105.02. I have considered the age of the 

defendant; the impetuosity of the defendant; his family 

and community environment; his ability to appreciate the 

risk and the consequences of the conduct; his intellectual capacity; and the mental health evaluation that was 
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Cite as 300 Neb. 617

submitted by defense counsel from the mental health professional, including all of the statutory mitigating factors; 

including information from the family, which includes 

prenatal history, developmental history, medical history, 

substance abuse treatment history, social history and psychological history.

The Court has also considered and cannot ignore the 

senselessness of these acts of violence; the motivation for 

the crime, to steal marijuana; the premeditated actions, 

this crime had been planned for some time; there was 

no provocation for these offenses. I’ve considered that 

the defendant used a firearm to commit these crimes. 

And I have considered the depravity of these crimes, 

cold-blooded shooting and killing of Mr. Coleman, and 

the cold-blooded shooting of Mr. Griffis, numerous 

times, and leaving him for dead, and he is now permanently paralyzed.

I’ve considered that you shot and killed the dog. 

Considered that fact that your intent was to leave no witnesses. And I considered the fact that Mr. Coleman’s three 

children were present in the home when you shot and 

killed him. I’ve considered the effect that these crimes 

have had on the family members of Mr. Coleman, including his three children, who will grow up now without a 

father. I’ve considered the effect that it has had on Mr. 

Griffis, he’s paralyzed for life. And the effect that this has 

had on his daily life, for the rest of his life.

I considered your other acts of violence, and although 

you’ve not been convicted of those other crimes, they 

were in the Presentence Report, including an armed 

robbery, that, again, was for marijuana, and included 

the taking of a four-year-old girl from a vehicle, and 

brought into an apartment where an armed robbery was 

in progress.

I do have to consider the safety of the public. You 

are dangerous. Society needs to be protected from your 

dangerousness.
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STATE v. STEELE

Cite as 300 Neb. 617

Having regard for the nature and circumstances of 

the crimes, and the history, character and condition of 

the defendant, and all other relevant factors, including 

the age, mentality, education and experience, social and 

cultural background, past criminal record, motivation 

for the offense, nature of the offense, amount of violence involved, impetuosity of the defendant, family and 

community environment, your ability to appreciate the 

risk and consequences of your conduct, your intellectual 

capacity, and the mental health evaluation, including all 

of the factors set forth in Miller versus Alabama, Graham 

versus Florida, and all of the mitigating factors set forth 

in Section 28-105.02.

The Court does find that imprisonment of the defendant is necessary for the protection of the public, because 

the risk is substantial that during any period of probation 

the defendant would engage in additional criminal conduct, and because a lesser sentence would depreciate the 

seriousness of the defendant’s crimes and promote disrespect for the law.

The district court then pronounced its sentences. It sentenced Steele to 60 years’ to life imprisonment for second 

degree murder. It sentenced Steele to 40 to 50 years’ imprisonment for first degree assault. It ordered the sentences to run 

consecutively. The court also advised Steele that he would be 

eligible for parole in 50 years.

ASSIGNMENTS OF ERROR

On appeal, Steele assigns, rephrased, that the district court 

abused its discretion (1) in imposing a “de facto life sentence,” 

and (2) in imposing excessive sentences.

STANDARD OF REVIEW

[1,2] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by 

the trial court. State v. Russell, 299 Neb. 483, 908 N.W.2d 

669 (2018). An abuse of discretion occurs when a trial court’s 
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decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence. State v. Hunt, 299 Neb. 573, 909 N.W.2d 

363 (2018).

ANALYSIS

De Facto Life Sentence.

In many recent appeals to this court, individuals convicted 

of offenses committed while they were juveniles have challenged their sentences, arguing that the sentence imposed is 

unlawful because it amounts to a “de facto life sentence” that 

is not permitted under the U.S. Supreme Court’s decisions in 

Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 

2d 407 (2012), or Graham v. Florida, 560 U.S. 48, 130 S. Ct. 

2011, 176 L. Ed. 2d 825 (2010). See, e.g., State v. Thieszen, 

ante p. 112, 912 N.W.2d 696 (2018); State v. Russell, supra; 

State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017). Steele 

makes such an argument here, contending that under Miller, 

a “de facto life sentence” can only be imposed upon a finding 

that the offender is “irreparably corrupt.” Brief for appellant 

at 8.

In Miller v. Alabama, supra, the U.S. Supreme Court held 

that a sentence of mandatory life imprisonment without parole 

for a juvenile violated the Eighth Amendment’s prohibition 

on cruel and unusual punishment. Miller did not, however, 

foreclose the possibility of a life-without-parole sentence for a 

juvenile. Such a sentence may be imposed so long as the court 

considers specific, individualized factors before handing down 

that sentence. See State v. Russell, supra.

Steele, like previous challengers, urges us to find that Miller 

places an additional restriction on life-without-parole sentences. According to Steele, life-without-parole sentences are 

permitted by Miller only if the offender is found to be “irreparably corrupt.” Brief for appellant at 8. Steele contends that 

because no such finding was made by the district court here, 

his sentences are unlawful.
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Under the sentences the district court imposed, Steele will 

be eligible for parole in 50 years, or when he is 67 years old. 

While some other states have found that a sentence expressed 

as a term of years may constitute a de facto life sentence, we 

have not done so. See State v. Russell, supra. On the other 

hand, we have found that sentences that allow for a “meaningful and realistic opportunity to obtain release” are not de 

facto life sentences for purposes of Miller v. Alabama, supra, 

or Graham v. Florida, supra. See State v. Russell, 299 Neb. 

at 495, 908 N.W.2d at 677 (Miller). Accord, State v. Thieszen, 

supra (Miller); State v. Smith, supra (Graham).

In State v. Russell, supra, we found the defendant’s sentence allowed him a “meaningful and realistic opportunity to 

obtain release” and thus was not a de facto life sentence. That 

sentence did not make the offender eligible for parole until he 

was 72 years old. As Steele will be eligible for parole at age 

67, our decision in Russell leaves no room for a determination that Steele received a de facto life sentence. We thus need 

not decide whether Miller requires a finding that the offender 

is “irreparably corrupt” for a life-without-parole sentence, 

because Steele did not receive such a sentence. Steele’s first 

assignment of error is meritless.

Excessive Sentences.

Steele also argues that the district court imposed excessive 

sentences. Steele does not argue that his sentences were outside 

the statutory limits. Rather, he argues that the court abused its 

discretion in imposing the sentences.

[3-5] Where a sentence imposed within the statutory limits 

is alleged on appeal to be excessive, the appellate court must 

determine whether a 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. Russell, 299 Neb. 483, 908 N.W.2d 669 

(2018). Relevant factors customarily considered and applied 

are the defendant’s (1) age, (2) mentality, (3) education and 
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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. Id. 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. State 

v. Thieszen, ante p. 112, 912 N.W.2d 696 (2018).

Steele contends that the district court abused its discretion in various ways, but we disagree in every respect. First, 

we reject Steele’s argument that the district court abused its 

discretion by not considering certain factors set forth in Neb. 

Rev. Stat. § 29-2260(3) (Reissue 2016), which, he contends 

should have been considered as mitigating factors. Section 

29-2260(3) sets forth factors that courts are to consider when 

deciding “if it is appropriate to withhold a sentence of imprisonment and grant probation.” State v. Cerritos-Valdez, 295 

Neb. 563, 569, 889 N.W.2d 605, 610 (2017). Neither the 

language of § 29-2260(3) nor logic would permit us to find 

that district courts are required to consider the § 29-2260(3) 

factors in cases like this one, in which a probation-only sentence would not even be permitted by statute. See Neb. Rev. 

Stat. §§ 28-304(2) and 28-308(2) (Reissue 2016) and 28-105 

(Supp. 2017).

While the district court was not required to specifically consider the factors set forth in § 29-2260(3), the district court did 

state that it had considered the familiar factors set forth above, 

which courts customarily consider and apply in fashioning 

any sentence. In particular, after noting that it had considered 

Steele’s age when he committed the offenses, the court said it 

took “into account how children are different and how these 

differences counsel against irrevocably sentencing a juvenile to 

a lifetime in prison.” The court also stated that it had considered, among other things, Steele’s impetuosity, his family and 

community environment, and a mental health evaluation that 
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was submitted by defense counsel. But the court also stated 

that it had considered the senselessness of Steele’s actions, 

as well as the motivation behind them (to steal), the lack of 

provocation, and the depravity that was exhibited by shooting 

and killing one person and leaving another permanently paralyzed. We cannot say that the court abused its discretion in its 

assessment of the relevant sentencing factors.

Neither are we persuaded by Steele’s argument that the 

district court relied on personal bias or prejudice in determining his sentences. Steele cites to State v. Pattno, 254 Neb. 

733, 579 N.W.2d 503 (1998), and State v. Bruna, 12 Neb. 

App. 798, 686 N.W.2d 590 (2004), in support of this argument. In Pattno, we vacated a sentence, concluding that the 

court’s reliance on “personal religious beliefs as a basis for a 

sentencing decision injects an impermissible consideration in 

the sentencing process.” 254 Neb. at 742, 579 N.W.2d at 509. 

In Bruna, the Nebraska Court of Appeals, citing Pattno, also 

vacated a sentence on the ground that the sentencing judge 

had considered his personal religious views when sentencing 

the defendant.

Unlike the defendants in Pattno and Bruna, Steele does not 

point to any specific information or beliefs that he contends 

the district court improperly relied upon in sentencing him. 

Without any elaboration from Steele as to what particular 

beliefs or information he contends improperly motivated the 

district court, we have no basis to vacate his sentences on the 

ground of bias.

CONCLUSION

Because we find that the district court did not abuse its discretion in sentencing Steele, we affirm.

Affirmed