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Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. RALIOS

Cite as 301 Neb. 1027

State of Nebraska, appellee, v.

Gabriel Ralios, appellan

___ N.W.2d ___

Filed January 4, 2019. No. S-18-126.

1. Statutes: Appeal and Error. Statutory interpretation is a question of 

law that an appellate court resolves independently of the trial court.

2. Sentences: Appeal and Error. Whether an appellate court is reviewing 

a sentence for its leniency or 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 to be an abuse of the trial 

court’s discretion.

3. 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.

4. Statutes: Legislature: Intent. The fundamental objective of statutory 

interpretation is to ascertain and carry out the Legislature’s intent.

5. Criminal Law: Statutes: Legislature: Intent. In reading a penal statute, a court must determine and give effect to the purpose and intent of 

the Legislature as ascertained from the entire language of the statute 

considered in its plain, ordinary, and popular sense.

6. Licenses and Permits: Revocation: Proof. Proof of reinstatement of a 

suspended operator’s license under Neb. Rev. Stat. § 60-4,108(2) (Supp. 

2017) requires that a driver with a previously suspended license show 

that his or her license is no longer suspended and that his or her license 

validly and effectively allows the holder to operate a motor vehicle.

7. Sentences: Appeal and Error. When a trial court’s sentence is within 

the statutory guidelines, the sentence will only be disturbed by an appellate court when an abuse of discretion is shown.

8. 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 

Nebraska Supreme Court Online Library

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

03/08/2019 08:06 AM CST
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STATE v. RALIOS

Cite as 301 Neb. 1027

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.

9. ____. 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 Thurston County, Joh

E. Samson, Judge, on appeal thereto from the County Cou

for Thurston County, Douglas L. Luebe, Judge. Judgment

District Court affirmed.

Erika Y. Buenrostro, of Castrejon & Buenrostro, L.L.C., for 

appellant.

Douglas J. Peterson, Attorney General, Nathan A. Liss, 

Derek Bral, Senior Certified Law Student, and, on brief, Sarah 

E. Marfisi.

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

Papik, and Freudenberg,

Freudenberg,

NATURE OF CASE

Pursuant to a plea agreement with the State, Gabriel Ralios 

pled guilty to operating a motor vehicle during a time of suspension, a Class III misdemeanor, and speeding. On November 

2, 2017, the county court accepted Ralios’ pleas and, after 

hearing argument on sentencing, the court sentenced him to 75 

days in jail pursuant to Neb. Rev. Stat. § 60-4,108(2) (Supp. 

2017). Ralios appealed his sentence to the district court sitting 

as an intermediate court of appeal, assigning that the county 

court erred in sentencing Ralios to 75 days in jail instead of a 

fine of $100 under § 60-4,108(2). The district court affirmed 

the county court’s sentence. The central issue on appeal is 

whether Ralios showed “proof of reinstatement of his . . . suspended operator’s license” under § 60-4,108(2).
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301 Nebraska Report

STATE v. RALIOS

Cite as 301 Neb. 1027

BACKGROUND

On July 4, 2017, a Thurston County deputy sheriff clocked 

Ralios’ car traveling over 80 m.p.h. in a 60-m.p.h. zone. Upon 

stopping the vehicle, the deputy determined Ralios’ license 

was suspended in the State of Missouri. He was charged with 

speeding and with operating a motor vehicle during a time of 

suspension.

On November 2, 2017, Ralios entered into a plea agreement. 

The State agreed to stand silent at sentencing in exchange for 

Ralios’ pleas on both counts. The court accepted Ralios’ pleas 

and proceeded immediately to sentencing.

During the sentencing hearing, Ralios presented a letter from 

the Missouri Driver License Bureau stating that Ralios was “not 

currently suspended or revoked in the state of Missouri” as of 

October 3, 2017. He argued that this letter was sufficient to 

establish that his license was reinstated and that therefore, the 

maximum punishment authorized by statute was a $100 fine 

under § 60-4,108(2). Ralios conceded, however, that he was 

not able to drive legally in Missouri at the time of sentencing.

Section 60-4,108(2) states in relevant part:

[A]ny person so offending shall be guilty of a Class III 

misdemeanor, and the court may, as a part of the judgment 

of conviction, order such person not to operate any motor 

vehicle for any purpose for a period of one year from the 

date ordered by the court, except that if the person at the 

time of sentencing shows proof of reinstatement of his or 

her suspended operator’s license, proof of issuance of a 

new license, or proof of return of the impounded license,

the person shall only be fined in an amount not to exceed 

one hundred dollars.

(Emphasis supplied.) Under Neb. Rev. Stat. § 28-106 (Reissue 

2016), a Class III misdemeanor is generally punishable by a 

maximum of 3 months’ imprisonment, a fine of $500, or both, 

with no minimum.

The court concluded that Ralios did not present sufficient 

evidence to show that his license had been reinstated in 
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STATE v. RALIOS

Cite as 301 Neb. 1027

the State of Missouri. No evidence was presented to the 

court regarding Ralios’ prior convictions at the sentencing 

hearing, but the county court considered Ralios’ prior convictions for driving without an operator’s license in Dodge 

County, Nebraska, which the court found on Nebraska’s online 

trial court case management system, known as JUSTICE. 

Considering the prior convictions and the evidence presented, 

the county court sentenced Ralios to 75 days in jail.

Ralios appealed his sentence to the district court for Thurston 

County, and a hearing was held on January 10, 2018. Ralios 

argued that the sentence was not authorized by statute, because 

he had presented sufficient evidence to warrant the statutory 

sentence requiring a reduction to only a $100 fine, and the 

county court abused its discretion by imposing an excessive 

sentence of 75 days in jail. The State did not submit a brief or 

argue. The district court affirmed the judgment and sentence of 

the county court. Ralios appeals.

ASSIGNMENTS OF ERROR

Ralios assigns that the district court erred in affirming the 

county court’s sentence of 75 days in jail instead of a fine of 

$100 or less under § 60-4,108(2) and in abusing its discretion 

by ordering Ralios to serve an excessive sentence.

STANDARD OF REVIEW

[1] Statutory interpretation is a question of law that an 

appellate court resolves independently of the trial court.1

[2,3] Whether an appellate court is reviewing a sentence 

for its leniency or 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 to be an abuse 

of the trial court’s discretion.2 A judicial abuse of discretion 

exists only when the reasons or rulings of a trial judge are 

1 State v. Thompson, 294 Neb. 197, 881 N.W.2d 609 (2016).

2 State v. Fields, 268 Neb. 850, 688 N.W.2d 878 (2004).
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STATE v. RALIOS

Cite as 301 Neb. 1027

clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for 

disposition.3

ANALYSIS

Ralios asserts on appeal that the district court erred in 

affirming the county court’s sentence of 75 days in jail instead 

of a fine of $100 or less under § 60-4,108(2) and in abusing its 

discretion by ordering Ralios to serve an excessive sentence. 

We first address the issue of the interpretation of § 60-4,108(2), 

with the issue regarding the excessiveness of his sentence to 

follow. There is no issue as to whether the evidence was sufficient to support Ralios’ conviction of driving under suspension, 

because Ralios pled guilty to the offense and the propriety of 

his plea and conviction are not issues argued before this court 

on appeal.

Interpretation of § 60-4,108

In support of his first assignment, Ralios argues that he 

provided the trial court with sufficient “proof of reinstatement 

of his or her suspended operator’s license” by submitting a 

letter from the Missouri Driver License Bureau stating that 

Ralios was “not currently suspended or revoked in the state 

of Missouri” as of October 3, 2017. The State contends that 

the letter did not meet the requirement set by the statute. 

We agree.

The language of § 60-4,108(2) at issue in this appeal 

is “proof of reinstatement of his or her suspended operator’s license, proof of issuance of a new license, or proof of 

return of the impounded license.” (Emphasis supplied.) Ralios 

argues—and the State concedes—that the function of this section is to mitigate a sentence for people who show proof of 

their reinstatement of their suspended operators’ licenses. We 

determine in this appeal the meaning of “proof of reinstatement 

3 Id.
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STATE v. RALIOS

Cite as 301 Neb. 1027

of his or her suspended operator’s license” without expressing 

any opinion as to whether the statute prohibits jail time for 

defendants who provide such proof. The meaning of “proof of 

reinstatement of his or her suspended operator’s license” is an 

issue of first impression for this court.

[4,5] The fundamental objective of statutory interpretation 

is to ascertain and carry out the Legislature’s intent.4 In reading a penal statute, a court must determine and give effect to 

the purpose and intent of the Legislature as ascertained from 

the entire language of the statute considered in its plain, ordinary, and popular sense.5

 Statutory interpretation is a question 

of law that an appellate court resolves independently of the 

trial court.6

[6] We hold that “proof of reinstatement of [a] suspended 

operator’s license” under Neb. Rev. Stat. § 60-4,108(2) requires 

that a driver with a previously suspended license show that his 

or her license is no longer suspended and that his or her license 

validly and effectively allows the holder to operate a motor 

vehicle. This comports with the plain meaning of “reinstate” 

as the restoration of the license to its previously effective 

state, and it is consistent with Neb. Rev. Stat. § 60-4,100.01 

(Reissue 2010). Proof of “reinstatement” of an operator’s 

license requires more than a mere showing of nonsuspension. 

Instead, proof of reinstatement involves proof that the individual holds an affirmatively issued license or permit to legally 

drive a motor vehicle.

We find no merit to Ralios’ argument that the statute’s plain 

language, read in pari materia with other definitional sections 

of Nebraska’s operator’s license laws, demonstrates that he 

is required only to show that he has his “privilege to drive,” 

which he defines as the ability to obtain a license if he so 

chooses, “reinstated,” in order to show “proof of reinstatement 

4 State v. Thompson, supra note 1.

5 Id.

6 Id.
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STATE v. RALIOS

Cite as 301 Neb. 1027

of his or her suspended operator’s license.”7 He argues that 

the statute does not require that he be in possession of a valid 

tangible government issued license, because the definition of 

“operator’s license” under Neb. Rev. Stat. § 60-474 (Cum. 

Supp. 2016) is much broader; a privilege to drive is, according 

to Ralios, the ability to obtain a license. Thus, he contends that 

his “operator’s license” was automatically “reinstated” at the 

conclusion of his suspension.

Section 60-474 of the Motor Vehicle Operator’s License 

Act8 defines “[o]perator’s or driver’s license” as

[A]ny license or permit to operate a motor vehicle issued 

under the laws of this state, including:

(1) Any replacement license or instruction permit;

(2) The privilege of any person to drive a motor vehicle 

whether such person holds a valid license;

(3) Any nonresident’s operating privilege which shall 

mean the privilege conferred upon a nonresident by the 

laws of this state pertaining to the operation of a motor 

vehicle in this state by such person or the use in this state 

of a vehicle owned by such person;

(4) An employment driving permit issued as provided 

by sections 60-4,129 and 60-4,130; and

(5) A medical hardship driving permit issued as provided by sections 60-4,130.01 and 60-4,130.02.

(Emphasis supplied.) Focusing on § 60-474(2) and the language “privilege . . . to drive a motor vehicle whether such 

person holds a valid license,” Ralios argues that “operator’s 

license” includes situations where no government agency has 

issued a license to an individual, but the individual has the 

legal right to obtain a license. He argues that this is the 

“privilege” that would fall within the scope of the definition 

of “operator’s license.” Because he provided proof that his 

7 Brief for appellant at 10.

8 Neb. Rev. Stat. §§ 60-462 to 60-4,189 (Reissue 2010, Cum. Supp. 2016 & 

Supp. 2017).
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license was no longer suspended in Missouri, he asserts that 

he effectively showed that his driving privilege, or “operator’s 

license” under § 60-474, was “reinstated.”

Ralios is incorrect that an “operator’s license,” for reinstatement purposes, includes the mere legal ability to obtain a 

driver’s license. Looking at the act as a whole, the Legislature 

consistently uses the phrase “operator’s license” in contexts 

where the term refers to an affirmatively issued license or permit to legally drive—not to the concept of potential privileges 

for unlicensed drivers. For example, § 60-484(1) states that “no 

resident of the State of Nebraska shall operate a motor vehicle 

upon the alleys or highways of this state until the person 

has obtained an operator’s license for that purpose.” Section 

60-488(2)(a) of the act extends driving privileges to nonresidents so long as “[s]uch nonresident shall be duly licensed 

under the motor vehicle laws of the state of his or her residence 

. . . .” These provisions would make little sense if the term 

“operator’s license” were strained to encompass persons who 

merely had the option to obtain a license or permit.

On the day of sentencing, Ralios conceded that he (1) was 

not able to drive in the State of Missouri legally at that time, 

(2) did not have a current driver’s license, and (3) was told by 

the State of Missouri that he could obtain a new license but 

never obtained one. As evidence of proof of reinstatement, he 

provided only the clearance letter from Missouri. Because this 

letter did not affirmatively show that Ralios had a current valid 

operator’s license in the State of Missouri, we find that it was 

insufficient to warrant the reduction of his sentence to a $100 

fine under § 60-4,108(2).

Excessive Se

By determining that Ralios’ clearance letter was insufficient 

to warrant the reduction of his sentence to a $100 fine under 

§ 60-4,108(2), we now must determine whether the imposition 

of his 75-day jail sentence was excessive and thus an abuse of 

discretion by the lower court.
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STATE v. RALIOS

Cite as 301 Neb. 1027

[7] When a trial court’s sentence is within the statutory 

guidelines, the sentence will only be disturbed by an appellate 

court when an abuse of discretion is shown.9 As § 60-4,108(2) 

states, a person who violates that section is guilty of a Class 

III misdemeanor. Under § 28-106, a Class III misdemeanor is 

generally punishable by a maximum of 3 months’ imprisonment, a fine of $500, or both, with no minimum. Here, Ralios 

was sentenced to 75 days in jail, and his sentence was clearly 

within the statutory guidelines. Therefore, Ralios’ sentence will 

only be disturbed if there was a judicial abuse of discretion by 

the sentencing court.

[8,9] 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.10 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.11 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.12

Generally, the sentencing court has broad discretion as to the 

source and type of evidence and information which may be 

used in determining the kind and extent of the punishment to 

be imposed, and evidence may be presented as to any matter 

that the court deems relevant to the sentence.13

9 State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).

10 State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).

11 State v. Huff, supra note 9.

12 State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).

13 State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
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STATE v. RALIOS

Cite as 301 Neb. 1027

Ralios argues, first, that the sentencing court acted contrary 

to its role by considering Ralios’ prior convictions and criminal history that the court independently found on Nebraska’s 

online trial court case management system, known as JUSTICE. 

However, there is nothing in the record to show that the sentencing court’s consideration of these materials were objected 

to below. A party who fails to make a timely objection to 

evidence waives the right on appeal to assert prejudicial error 

concerning the evidence received without objection.14

Second, Ralios argues that the court did not properly consider mitigating factors in imposing the 75-day jail sentence. 

Based on the record before us, the sentencing court did not 

consider any inappropriate or unreasonable factors in determining the sentence. We find that the court did not make its decision based upon reasons that are untenable or unreasonable, 

nor was its action clearly against justice or conscience, reason, 

and evidence.

CONCLUSION

For the reasons set forth above, we affirm the district court’s 

affirmance of the county court’s sentence.

Affirmed

14 State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003).