- 693 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

State of Nebraska, appellee, v. 

Timothy L. Becker, appellant.

___ N.W.2d ___

Filed December 20, 2019. No. S-19-008.

1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal 

case from the county court, the district court acts as an intermediate 

court of appeals, and its review is limited to an examination of the 

record for error or abuse of discretion.

2. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error 

appearing on the record.

3. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

4. Constitutional Law: Sentences. Whether a sentence constitutes cruel 

and unusual punishment in violation of the Eighth Amendment presents 

a question of law.

5. Judgments: Appeal and Error. When reviewing a question of law, 

an appellate court reaches a conclusion independent of the lower 

court’s ruling.

6. 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.

7. 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.

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

unasserted or uncomplained of at trial is plainly evident from the record, 

affects a litigant’s substantial right, and, if uncorrected, would result in 

damage to the integrity, reputation, and fairness of the judicial process.

Nebraska Supreme Court Online Library

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

03/13/2020 12:10 AM CDT
- 694 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

9. Constitutional Law: Sentences. The Eighth Amendment prohibits 

not only barbaric punishments, but also sentences that are disproportionate to the crime committed. The U.S. Supreme Court has characterized this as a “narrow proportionality principle” which does not 

require strict proportionality between crime and sentence, but, rather, 

forbids only extreme sentences that are grossly disproportionate to 

the crime.

10. ____: ____. Under ordinary Eighth Amendment analysis, each sentence 

is considered separately, not cumulatively, for purposes of determining 

whether it is cruel and unusual.

11. 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.

12. 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.

13. ____. 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.

14. ____. Generally, it is within a trial court’s discretion to direct that 

sentences imposed for separate crimes be served either concurrently or 

consecutively.

Appeal from the District Court for Scotts Bluff County, 

Andrea D. Miller, Judge, on appeal thereto from the County 

Court for Scotts Bluff County, James M. Worden, Judge. 

Judgment of District Court affirmed.

Bernard J. Straetker, Scotts Bluff County Public Defender, 

for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

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

Papik, and Freudenberg, JJ.
- 695 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

Miller-Lerman, J.

NATURE OF CASE

Timothy L. Becker, appellant, was convicted in the county 

court for Scotts Bluff County of 21 misdemeanor counts of 

violating a protection order and sentenced to county jail for 

180 days on each count, to be served consecutively. On appeal 

to the district court, Becker claimed that the sentences imposed 

were (1) excessive, (2) disproportionate in violation of the 

Eighth Amendment, and (3) invalid because when the county 

court orally pronounced his sentences in open court, it failed to 

state where the sentences were to be served. The district court 

rejected each of these claims and affirmed Becker’s convictions and sentences. On appeal to this court, Becker claims 

the district court erred when it rejected each of his contentions 

regarding his sentences. Because we find no merit to Becker’s 

claims of error, we affirm the order of the district court, which 

affirmed Becker’s convictions and sentences.

STATEMENT OF FACTS

On May 29, 2018, the State charged Becker in the Scotts 

Bluff County Court with 21 counts of violating a protection 

order under Neb. Rev. Stat. § 42-924(4) (Cum. Supp. 2018). 

Each count involved a violation of the same protection order 

and the same victim, but each count was alleged to have 

occurred on a different date from May 3 through May 23, 

2018. Each count was charged as a second offense based on a 

prior conviction for violation of a protection order involving 

the same victim. The complaint alleged that the prior offense 

had occurred on January 3, 2018, and that Becker had been 

convicted of the prior offense on May 3.

Pursuant to a plea agreement, the State reduced each of the 

charges to a first offense and Becker pled no contest to all 21 

counts on June 5, 2018. Under § 42-924(4), a first offense of 

violating a protection order is a Class I misdemeanor, whereas 

a second or subsequent offense is a Class IV felony.

In its factual basis for the pleas, the State asserted that a 

protection order had been entered against Becker on October 
- 696 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

19, 2017, and had remained in effect since issued and that the 

protection order prohibited Becker from, inter alia, telephoning 

or otherwise communicating with the victim. The State further 

asserted that on the dates alleged, Becker was incarcerated in 

the Scotts Bluff County jail and that jail records showed that 

Becker had telephoned the victim’s number on each of the 

charged dates, “often multiple times a day.” The State asserted 

that in the timeframe alleged, Becker had made over 300 calls 

to the victim’s number and that “over 150 of those were completed phone calls.”

At the July 31, 2018, sentencing hearing, the county court 

received evidence, including the victim’s impact statement. 

After hearing arguments from the State and from Becker, the 

county court sentenced Becker to imprisonment for 180 days 

for each of the 21 convictions and ordered that the sentences 

be served consecutively to one another. In connection with 

the imposition of sentences, the county court stated that it 

had considered the victim impact statement, Becker’s criminal 

history, the nature of the offenses, public safety, and the need 

for punishment. The county court further stated that it considered Becker’s comments at the sentencing hearing, which 

“very much went to blame other people rather than to take 

personal responsibility and make any promises not to do that 

in the future.”

Before pronouncing the sentence, the county court had a discussion with counsel regarding where Becker would serve his 

sentences “if he is given over a year sentence.” In that discussion, the court made reference to Neb. Rev. Stat. § 28-106(2) 

(Reissue 2016), which provides in part:

Sentences of imprisonment in misdemeanor cases shall 

be served in the county jail, except that such sentences 

may be served in institutions under the jurisdiction of the 

Department of Correctional Services if the sentence is to 

be served concurrently or consecutively with a term for 

conviction of a felony and the combined sentences total a 

term of one year or more.
- 697 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

At the end of the discussion, the court stated that it was “going 

to issue the sentence, and then I am going to look at that [location issue] before I issue the commitment order showing where 

the commitment will take place. . . . [H]opefully I can still get 

that figured out yet today, but, if not, first thing in the morning.” See Neb. Rev. Stat. § 29-2403 (Reissue 2016) (providing 

for warrant of commitment). While counsel and Becker were 

present in the courtroom, the court pronounced a sentence of 

180 days for each count. The written sentencing order, signed 

and dated by the county court on July 31, 2018, stated that 

Becker was “sentenced to the Scotts Bluff County Jail” for 

consecutive sentences of 180 days for each of the 21 misdemeanor convictions, for a total of 3,780 days. The sentencing 

order was filed on August 1.

Becker appealed his convictions and sentences to the district 

court. After briefing and argument, the district court filed an 

order which affirmed the county court’s judgment. The district 

court stated that Becker argued that (1) the sentences imposed 

by the county court were excessive, (2) the sentences violated 

the Eighth Amendment because they were disproportionate 

to the crimes committed, and (3) the sentences were invalid 

because the county court did not announce in open court where 

Becker would serve his sentences. Regarding excessive sentences, the district court determined that the sentences were 

within statutory limits, were supported by competent evidence, 

and did not constitute an abuse of discretion. Regarding disproportionate sentencing, the district court again noted that the 

sentences were within statutory limits and that Becker’s criminal history included a violation of the same protection order. 

The district court also rejected Becker’s argument that the sentences were disproportionate because they would be served in 

county jail “with little services offered and with little opportunity to be outside.” The district court noted that the Legislature 

provided in § 28-106 that sentences for misdemeanors were to 

be served in county jails unless served concurrently with or 

consecutively to a sentence for a felony. Based on § 28-106, 
- 698 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

the district court determined that because the sentences in this 

case were for misdemeanors and there was no felony involved, 

the statutorily required location for the sentences was the 

county jail. Finally, regarding the failure to announce in open 

court the location where the sentences would be served, the 

district court noted that the county court had engaged in a 

discussion of the issue with counsel and that Becker did not 

object to the county court’s statement that it would research 

the location issue and issue a commitment order identifying the 

location following the hearing. The district court noted that the 

county court sentencing order filed the day after the sentencing hearing provided that the sentences would be served in the 

county jail. The district court concluded that there was no error 

regarding sentencing and affirmed.

Becker appeals the district court’s order which affirmed his 

convictions and sentences.

ASSIGNMENTS OF ERROR

Becker generally claims that the district court erred when it 

affirmed his convictions and sentences. Becker claims, restated 

and reordered, that (1) there was plain error and the sentences 

were not valid, because he was not present in court “when the 

commitment portion of his sentences [was] imposed”; (2) the 

sentences imposed violated the Eighth Amendment because 

they were disproportionate to his criminal history and the 

severity of the crimes; and (3) the sentences imposed were 

excessive and an abuse of discretion.

STANDARDS OF REVIEW

[1-3] In an appeal of a criminal case from the county court, 

the district court acts as an intermediate court of appeals, 

and its review is limited to an examination of the record for 

error or abuse of discretion. State v. Hatfield, ante p. 66, 933 

N.W.2d 78 (2019). Both the district court and a higher appellate court generally review appeals from the county court for 

error appearing on the record. Id. When reviewing a judgment 

for errors appearing on the record, an appellate court’s inquiry 
- 699 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

is whether the decision conforms to the law, is supported by 

competent evidence, and is neither arbitrary, capricious, nor 

unreasonable. Id.

[4,5] Whether a sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment presents a 

question of law. State v. Jones, 297 Neb. 557, 900 N.W.2d 

757 (2017). When reviewing a question of law, an appellate 

court reaches a conclusion independent of the lower court’s 

ruling. Id.

[6,7] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by 

the trial court. State v. Montoya, ante p. 96, 933 N.W.2d 558 

(2019). 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. Id.

ANALYSIS

Each of Becker’s three assignments of error relates to the 

propriety of his sentences. Thus, we make some initial comments which relate to our analysis of each assignment of error. 

We initially note that Becker pled no contest to and was convicted of 21 counts of first offense violation of a protection 

order. Under § 42-924(4), a first offense of violating a protection order is a Class I misdemeanor. The sentencing range for a 

Class I misdemeanor is found in § 28-106, which provides no 

minimum and a maximum of 1 year’s imprisonment, a $1,000 

fine, or both. As noted in the facts above, § 28-106(2) provides 

in part:

Sentences of imprisonment in misdemeanor cases shall 

be served in the county jail, except that such sentences 

may be served in institutions under the jurisdiction of the 

Department of Correctional Services if the sentence is to 

be served concurrently or consecutively with a term for 

conviction of a felony and the combined sentences total a 

term of one year or more.
- 700 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

The county court sentenced Becker “to the Scotts Bluff 

County Jail” for consecutive sentences of 180 days for each 

of the 21 misdemeanor convictions, for a total of 3,780 days. 

The individual sentences were within the range allowed under 

§ 28-106, and because the sentences were not ordered to be 

served concurrently with or consecutively to a sentence for a 

felony conviction, the sentences were required under the current version of § 28-106(2) to be served “in the county jail.”

Court’s Failure to Announce in Court 

Where Sentences Would Be Served 

Was Not Plain Error.

We first address Becker’s claim that his sentences were 

invalid because the county court did not announce in open 

court the location where his sentences would be served. We 

find no plain error in this respect.

[8] Becker frames this claim as an instance of plain error. 

As noted in the fact section above, at the July 31, 2018, 

sentencing hearing, the court had a discussion regarding the 

location where the sentences would be required to be served 

and stated that it was first “going to issue the sentence, and 

then I am going to look at that [location issue] before I issue 

the commitment order showing where the commitment will 

take place. . . . [H]opefully I can still get that figured out yet 

today, but, if not, first thing in the morning.” Becker did not 

object to the sentencing procedure expressed by the court, and 

therefore he has presented this claim on appeal as a claim of 

plain error. Plain error may be found on appeal when an error 

unasserted or uncomplained of at trial is plainly evident from 

the record, 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. Briggs, 303 Neb. 352, 

929 N.W.2d 65 (2019).

Becker relies on State v. Temple, 230 Neb. 624, 628, 432 

N.W.2d 818, 821 (1988), in which we stated: “The pronouncement of the sentence in open court in the presence of the 

defendant is an important part of the sentencing procedure in 
- 701 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

most criminal cases. In imposing sentence, the court should 

state with care the precise terms of the sentence which is 

imposed.” We have cited Temple for the proposition that 

“where there is a conflict between the record of a judgment and 

a verbatim record of the proceedings in open court, the latter 

prevails.” State v. Salyers, 239 Neb. 1002, 1005, 480 N.W.2d 

173, 176 (1992). Becker also relies on State v. Ernest, 200 Neb. 

615, 617, 264 N.W.2d 677, 679 (1978), in which we stated 

that Neb. Rev. Stat. §§ 29-2201 and 29-2202 (Reissue 2016) 

“relating to allocution indicate clearly that sentencing should 

take place in the presence of the defendant” and that “[t]here 

is much authority to the effect that a sentence imposed in the 

absence of the defendant is generally void.”

The present case is not a case like State v. Ernest, supra, 

in which a sentencing hearing was held in the defendant’s 

absence, or like State v. Temple, supra, where a subsequent 

written order was alleged to differ from that which was pronounced in court. Becker was present at the sentencing hearing, and the court pronounced the length of the sentences and 

ordered them to be served consecutively. These critical aspects 

of the sentence did not differ in the written order that was filed 

the next day.

As noted, at the sentencing hearing at which Becker was 

present, the court discussed with the parties the statutory 

requirement regarding where the sentences would be served. 

The court referred to § 28-106(2), quoted above, and allowed 

the parties to comment on the application of the statute. On the 

undisputed facts of this case, § 28-106(2) clearly required that 

the sentences be served “in the county jail,” which we observe 

is not under the jurisdiction of the Department of Correctional 

Services (DCS). In the case of misdemeanors, § 28-106(2) 

allows for the misdemeanor sentences to be served “in institutions under the jurisdiction of [DCS]” only when they are 

ordered to be served concurrently with or consecutively to a 

sentence for a felony conviction. There was no felony conviction at issue in this case, and so, the only statutory option 
- 702 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

available to the sentencing court was for the sentences to be 

served in the county jail as the written order provided.

As stated in State v. Ernest, supra, the requirement for the 

defendant’s presence at sentencing stems from §§ 29-2201 

and 29-2202. Those statutes focus on the requirement of 

allocution, i.e., that “the defendant must be informed by the 

court of the verdict of the jury, and asked whether he has 

anything to say why judgment should not be passed against 

him.” § 29-2201. It also appears to stem from what we have 

recognized as a defendant’s “constitutionally protected right 

to be present at all critical stages of his or her trial.” State v. 

Bjorklund, 258 Neb. 432, 468, 604 N.W.2d 169, 205 (2000), 

abrogated on other grounds, State v. Mata, 275 Neb. 1, 745 

N.W.2d 229 (2008).

We think those concerns were addressed in this case, because 

Becker was at the sentencing hearing and had the opportunity 

to argue issues related to the length of sentence, which was 

pronounced, as well as the location issue, which was a subject 

of discussion.

The record of the July 31, 2018, sentencing hearing shows 

that there was a discussion between the court and counsel with 

Becker present which included reference to § 28-106(2), a 

statute which required the sentences in this case to be served 

in the county jail, as the subsequent written order provided. 

Unlike previous versions of § 28-106(2), which we discuss 

later in our analysis, under the current version of § 28-106(2), 

in the absence of a felony, the court had no statutory discretion 

to order the sentences to be served in a DCS facility rather than 

the county jail. Therefore, there was nothing that Becker could 

have argued to convince the county court to order the sentences 

to be served anywhere other than the county jail; the commitment order would not have been any different even if the court 

had explicitly stated at the hearing that the sentences were to 

be served in the county jail. Thus, even if we were to conclude that Becker’s presence was required when the sentencing 

court announced the location where the sentences were to be 
- 703 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

served, no plain error occurred. The absence of an announcement indicating where the sentences were to be served did not 

affect Becker’s substantial right. Furthermore, if uncorrected, 

it would not result in damage to the integrity, reputation, and 

fairness of the judicial process. See State v. Briggs, 303 Neb. 

352, 929 N.W.2d 65 (2019). We conclude that the district court 

did not err when it concluded that the county court’s failure to 

state at the sentencing hearing where the sentences would be 

served was not plain error.

Eighth Amendment Proportionality Analysis 

Requires That Consecutive Sentences Be 

Considered Individually Rather Than 

Cumulatively; Individual Sentences 

Imposed on Becker Were Not 

Disproportionate.

Becker next argues that his sentences violated the Eighth 

Amendment because they were disproportionate. We determine 

that this inquiry must focus on each individual sentence rather 

than the aggregate of all 21 sentences and that, viewed as such, 

the sentences were not disproportionate.

[9] The Eighth Amendment prohibits not only barbaric punishments, but also sentences that are disproportionate to the 

crime committed. State v. Jones, 297 Neb. 557, 900 N.W.2d 

757 (2017). The U.S. Supreme Court has characterized this as 

a “narrow proportionality principle” which does not require 

strict proportionality between crime and sentence, but, rather, 

forbids only extreme sentences that are grossly disproportionate to the crime. Id. See Ewing v. California, 538 U.S. 11, 

123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003) (citing Harmelin v. 

Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 

(1991) (Kennedy, J., concurring in part and concurring in judgment; O’Connor and Souter, JJ., join)). See, also, Lockyer v. 

Andrade, 538 U.S. 63, 77, 123 S. Ct. 1166, 155 L. Ed. 2d 144 

(2003) (“[t]he gross disproportionality principle reserves a constitutional violation for only the extraordinary case”).
- 704 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

Becker’s argument focuses on the fact that he was sentenced to consecutive sentences totaling imprisonment for 

more than 10 years in the county jail. He contends it is grossly 

disproportionate to be sentenced to more than 10 years’ 

imprisonment for telephone calls that the victim “didn’t have 

to answer.” However, we determine that Eighth Amendment 

analysis focuses on individual sentences rather than the 

aggregate of sentences ordered to be served consecutively to 

one another.

Federal courts have said that the focus of the disproportionality inquiry should be on the individual sentence 

rather than the aggregate of sentences. “Eighth amendment 

analysis focuses on the sentence imposed for each specific 

crime, not on the cumulative sentence.” U.S. v. Aiello, 864 

F.2d 257, 265 (2d Cir. 1988). See, also, Pearson v. Ramos, 

237 F.3d 881, 886 (7th Cir. 2001) (stating that “it is wrong 

to treat stacked sanctions as a single sanction [because] 

[t]o do so produces the ridiculous consequence of enabling 

a prisoner, simply by recidivating, to generate a colorable 

Eighth Amendment claim”); Hawkins v. Hargett, 200 F.3d 

1279 (10th Cir. 1999) (stating Eighth Amendment analysis 

focuses on sentence imposed for each specific crime, not on 

cumulative sentence for multiple crimes); United States v. 

Schell, 692 F.2d 672, 675 (10th Cir. 1982) (rejecting Eighth 

Amendment challenge and stating, in part, that considering 

consecutive sentences would require court to find that “virtually any sentence, however short, becomes cruel and unusual 

punishment” when considered in connection with “sentences 

for prior convictions”).

The Court of Appeals for the Second Circuit in U.S. v. Aiello, 

supra, and some of the other federal courts cited above relied 

on dicta from the U.S. Supreme Court’s decision in O’Neil v. 

Vermont, 144 U.S. 323, 12 S. Ct. 693, 36 L. Ed. 450 (1892). In 

O’Neil, the defendant was given consecutive sentences totaling over 54 years for 307 liquor law infractions. The circuit 

court ultimately concluded that it lacked jurisdiction to decide 
- 705 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

the question, but in doing so, it noted that the state court had 

determined that the significant length of the aggregated sentences did not constitute cruel and unusual punishment. The 

circuit court quoted the state court’s reasoning that “‘[i]f [the 

defendant] has subjected himself to a severe penalty, it is simply because he has committed a great many such offen[s]es.’”

Id., 144 U.S. at 331 (quoting State v. O’Neil, 58 Vt. 140, 2 A. 

586 (1886)).

State courts have likewise held that the focus should be on 

individual sentences rather than the aggregate of sentences. 

In State v. Berger, 212 Ariz. 473, 134 P.3d 378 (2006), the 

court found no Eighth Amendment violation in a cumulative 

sentence of imprisonment for 200 years based on consecutive 

10-year sentences imposed for 20 counts of possessing child 

pornography. The Arizona court stated that “‘[a] defendant has 

no constitutional right to concurrent sentences for two separate 

crimes involving separate acts.’” Id. at 479, 134 P.3d at 384, 

quoting State v. Jonas, 164 Ariz. 242, 792 P.2d 705 (1990)). 

The Berger court also stated that “if the sentence for a particular offense is not disproportionately long, it does not become 

so merely because it is consecutive to another sentence for 

a separate offense or because the consecutive sentences are 

lengthy in aggregate.” 212 Ariz. at 479, 134 P.3d at 384. 

See, also, State v. Hairston, 118 Ohio St. 3d 289, 888 N.E.2d 

1073 (2008) (stating proportionality review should focus on 

individual sentences rather than on cumulative impact of multiple sentences imposed consecutively); State v. Buchhold, 727 

N.W.2d 816 (S.D. 2007) (reviewing cases holding that Eighth 

Amendment review focuses on individual sentences and concluding that imposition of consecutive sentencing is discretionary matter for sentencing court); Wahleithner v. Thompson, 

134 Wash. App. 931, 143 P.3d 321 (2006) (stating that except 

in extremely rare cases, proportionality review for constitutional purposes is review of each individual sentence, not 

their cumulative effect); Close v. People, 48 P.3d 528 (Colo. 

2002), abrogated on other grounds, Wells-Yates v. People, 
- 706 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

No. 16SC592, 2019 WL 5688119 (Colo. Nov. 4, 2019) (stating 

if proportionality review were to consider cumulative effect 

of all sentences imposed, result would be possibility that 

defendant could generate Eighth Amendment disproportionality claim simply because defendant had engaged in repeated 

criminal activity); State v. August, 589 N.W.2d 740 (Iowa 

1999) (determining nothing cruel and unusual about punishing 

person committing two crimes more severely than person committing only one crime, which is effect of consecutive sentencing). But see State v. Ali, 895 N.W.2d 237, 246 (Minn. 2017) 

(stating that under U.S. Supreme Court precedent, “issue of 

whether consecutive sentences should be viewed separately 

when conducting a proportionality analysis under the Eighth 

Amendment remains an open question,” particularly with 

regard to juvenile offenders, in light of Miller v. Alabama, 

567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), and 

Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193 

L. Ed. 2d 599 (2016)).

[10] We agree with the reasoning of these federal and state 

courts, and we therefore conclude that under ordinary Eighth 

Amendment analysis, each sentence is considered separately, 

not cumulatively, for purposes of determining whether it is 

cruel and unusual. Applying the principle to the instant case, 

we note that the sentence for each of Becker’s 21 convictions 

was for 180 days in county jail, which was within the statutory limits for a Class I misdemeanor. See § 28-106 (maximum 

of 1 year’s imprisonment for Class I misdemeanor). Eighth 

Amendment analysis generally respects legislative determinations of statutory sentencing limits. See State v. Loschen, 221 

Neb. 315, 376 N.W.2d 792 (1985) (stating sentence of imprisonment within limits of valid statute ordinarily not cruel and 

unusual punishment in constitutional sense). We view each 

sentence individually and conclude that each individual sentence imposed on Becker was well within the statutory limits 

and was not grossly disproportionate in violation of the Eighth 

Amendment. We therefore conclude the district court did not 
- 707 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

err when it rejected Becker’s Eighth Amendment challenge to 

his sentences.

District Court Did Not Err When It 

Determined That County Court Did 

Not Impose Excessive Sentences.

Becker finally claims that the district court erred when it 

failed to rule that the county court imposed excessive sentences. Sitting as an appellate court, the district court’s standard of review was limited to an examination of the record for 

error or abuse of discretion. See State v. Hatfield, ante p. 66, 

933 N.W.2d 78 (2019). As explained below, because the county 

court did not abuse its discretion when it sentenced Becker, the 

district court did not err when it affirmed the county court’s 

sentencing order.

[11-13] Becker pled no contest to 21 counts of first offense 

violating a protection order. As noted above, Becker’s sentences of imprisonment for 180 days on each count were within 

statutory limits. 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. Garcia, 302 Neb. 406, 923 N.W.2d 725 

(2019). 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 lawabiding 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. Id.

Viewing each sentence individually, we find a sentence of 

180 days’ imprisonment is well under the maximum potential 
- 708 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

sentence of 1 year’s imprisonment for a Class I misdemeanor. 

As such, it is difficult to claim that any individual sentence 

is excessive. Instead, Becker’s excessive sentence argument 

focuses on the fact that the court ordered the 21 sentences 

to be served consecutively to one another, resulting in an 

aggregate sentence in excess of 10 years. He generally argues 

that 10 years’ imprisonment is excessive, because his crimes 

were basically telephone calls that the victim “didn’t have to 

answer” and his prior criminal history does not show him to be 

violent or dangerous. Becker appears to place some blame for 

the offenses on the victim, noting that all the calls were placed 

from the jail and that the jail calling system notifies the recipient of the caller’s identity and gives the recipient the option to 

refuse the call. He argues that because the victim did not have 

to take the calls, she evidently wanted to talk to him.

[14] We note first that generally, it is within a trial court’s 

discretion to direct that sentences imposed for separate crimes 

be served either concurrently or consecutively. State v. Tucker, 

301 Neb. 856, 920 N.W.2d 680 (2018). The cumulative length 

of the sentences is due largely to the fact that Becker was 

convicted of 21 separate violations. Becker pled no contest 

to the 21 charged violations, and he did not challenge the 

number of charges on double jeopardy grounds or argue that 

the charges constituted a single offense. See State v. Mather, 

264 Neb. 182, 646 N.W.2d 605 (2002). We note in this regard 

that the record indicates that Becker made hundreds of calls 

in violation of the protection order over the course of 21 days 

and that the State chose to charge him with just one offense 

for each day.

The county court appeared to consider appropriate factors 

in making its sentencing decision. At the sentencing hearing 

in this case, the county court set forth various factors it had 

considered. These factors included Becker’s criminal history, 

the nature of the offenses, public safety, the need for punishment, and, in particular, the victim’s impact statement. The 

county court also noted Becker’s comments at the sentencing 
- 709 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

hearing, which seemed to indicate an unwillingness to accept 

responsibility for the offenses; the court noted that his comments “very much went to blame other people rather than to 

take personal responsibility and make any promises not to do 

that in the future.” Becker stated at the hearing that the victim 

“didn’t have to answer my phone calls. She could have blocked 

me. . . . But every time I called she answered.” Our review 

of the record in this case indicates that the court considered 

relevant factors, and the record does not indicate that the court 

considered any improper factors.

In connection with his Eighth Amendment argument considered above, Becker in part argued that consecutive sentences 

were disproportionate because they would result in his spending several years in county jail, a facility which he asserts is 

not amenable to incarceration for that period of time. As we 

determined above, for purposes of Eighth Amendment analysis, in the absence of specific law to the contrary, sentences 

are considered individually, and therefore Becker’s argument 

regarding the cumulative time he will spend in county jail was 

not relevant to our Eighth Amendment analysis. We therefore 

consider Becker’s cumulative argument as part of Becker’s 

contention that consecutive sentences were excessive and an 

abuse of discretion.

As we have noted, unless prescribed by statute, sentencing 

courts are afforded discretion as to whether to impose consecutive sentences. See State v. Tucker, supra. The underlying rationale behind Becker’s argument against consecutive sentences 

is that imposition of consecutive terms is improper, because all 

sentences will be served in county jail rather than in institutions under the jurisdiction of DCS which are better suited than 

the county jail for incarceration for a longer period of time. 

However, as we noted above, the only option under the facts 

and the current provisions of § 28-106 was for the sentences 

to be served in county jail; the county court had no discretion to order otherwise. Given the sheer volume of Becker’s 

convictions for violation of the protection order, and with due 
- 710 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. BECKER

Cite as 304 Neb. 693

regard for additional uncharged violations, we do not believe 

the sentencing court abused its discretion when it imposed 

consecutive terms.

For completeness, we note that prior to amendments in 2015, 

Neb. Rev. Stat. § 28-106 (Cum. Supp. 2014) allowed sentences 

for misdemeanor sentences to be served in DCS facilities 

under certain circumstances even when not made concurrently 

with or consecutively to a sentence for a felony conviction. 

We also note that Neb. Rev. Stat. § 28-105(2) (Reissue 2016) 

requires that felony sentences for maximum terms of imprisonment for 1 year or more must be served in DCS facilities. 

This appears to indicate that there has been a legislative policy 

determination that DCS facilities are better suited than county 

jails for longer sentences. However, if there are policy reasons 

that long periods of incarceration for multiple misdemeanor 

convictions could be better served in DCS facilities rather than 

in county jails as is now required, that is a determination that 

would need to be articulated by the Legislature.

We conclude that the district court did not err when it concluded that the county court did not abuse its discretion in sentencing Becker. We reject this assignment of error.

CONCLUSION

We determine that there was no plain error when the 

county court did not announce at the sentencing hearing where 

Becker’s sentences would be served. We further determine that 

Eighth Amendment analysis ordinarily focuses on individual 

sentences rather than the cumulative length of consecutive 

sentences and that Becker’s individual sentences were not 

grossly disproportionate. We finally determine that because the 

county court did not impose excessive sentences, the district 

court did not err when it affirmed Becker’s county court convictions and sentences. Finding no errors by the district court, 

we affirm.

Affirmed.