State v. Morales - Sentencing Appeal

IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL (Memorandum Web Opinion) S TATE V. M ORALES 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). S TATE OF N EBRASKA, APPELLEE, V. P EDRO P. M ORALES, APPELLANT. Filed February 24, 2026. No. A-25-782. Appeal from the District Court for Scotts Bluff County: A NDREA D. M ILLER, Judge. Affirmed in part, and in part vacated and remanded with directions. Michael W. Meister, Sc otts Bluff County Public Defender, and Brent A. Hansen for appellant. Michael T. Hilgers, Attorney General, and Melissa R. Vincent for appellee. R IEDMANN, Chief Judge, and P IRTLE and F REEMAN, Judges. R IEDMANN, Chief Judge. INTRODUCTION Pedro P. Morales appeals the sentences imposed by the district court for Scotts B luff County. We affirm the sentences imposed for two of Morales’ convictions but find that the district court committed plain error in sentencing Morales on a third conviction. We vacate that sentence and remand the cause with directions. BACKGROUND Morales was originally charged with nine counts, all stemming from an incident that occurred in February 20 25. Pursuant to a plea a greement, he agreed to plead to three charges: operating a motor vehicle to avoid arrest (felony), possession of a controlle d subst ance

(methamphetamine), and possession of a controlled substance (c ocaine), all of which a re Class I V felonies. In e xchange, the State agree d to dismiss the re maining charges. Morales pled no contest. The fac tual basis established that law enforcement received re ports that Morales had stolen a vehicle. Officers pursu ed the vehicle, which reached spe eds 20 miles per hour above the posted speed limit for the area. Morales was unable to negotiate a turn, crashed the vehicle, and fled on foot. Officers were able to catch up with Morales but had to tase him because he would not comply with commands. A bag found during a search of the vehicle contained methamphetamine and cocaine. The district court accepted Morales’ pleas, found him guilty of the charges, and ordered a presentence investigation report. For his conviction of operating a mot or v ehicle to avoid arrest (felony), Mo rales received a sentence of 18 months’ imprisonment and 12 months’ post -release supervision. For his conviction of possession of a controlled substance (methamphetamine), Morales received a sentence o f 18 months’ imprisonment and 12 months’ post -release supervision. For his conviction of possession of a controlled subst ance (cocaine), Morales received a sentence of 18 months’ imprisonment and 12 mont hs’ post -release supervision. The sentences were ordered to be s erved concurrently. Morales was given cre dit for 72 days of time serve d against each individual sentence. The written sentencing order differs from the oral pronounce ment of sente nce in that it does not include any term of post- release supervision for Morales’ c onviction of operating a motor vehicle to avoid arrest. ASSIGNMENT OF ERROR Morales assigns, restated, that the sentences im posed were excessive and an abuse of discretion. STANDARD OF REVIEW Absent an abuse of discretion by the trial court, an appellate court will not disturb a sentence imposed within the statutory limits. State v. Jones, 318 Neb. 840, 19 N.W.3d 499 (2025). ANALYSIS Plain Error. Before addressing Morales’ assigned error, we fir st address the State ’s a rgument that the district court committed plain error in sentencing Morales for his conviction of operating a motor vehicle to avoid arrest. We agree that there was plain error in sentencing on that conviction. Plain error is error plainly evid ent from the r ecord and o f such a nature that to lea ve it uncorrected would result in damage to the integrity, reputation, or f airness of the judicial process. State v. Perry, 318 Neb. 613, 17 N. W.3d 504 (2025). A sentence that is contrary to the court’s statutory authority is an appropriate matter for plain err or review. Id. An appellate court has the power on direct appeal to remand a cause for the im position of a lawf ul sentence whe re an erroneous one has been pronounced. Id. Morales was convicte d of a violation of Neb. Rev. Stat. § 28-905(3)(a) (Reissue 2016). When convicted under that portion of the statute, as part of sentencing, the “court shall ... ord er that the operator’s li cense of such person b e revoked or impounded for a p eriod of two years and order the person not to drive a ny motor vehicle for any purpose in the State of Nebra ska for a like

period.” § 28 - 905(3)(b). This applies to Morales’ conviction for operating a motor vehicle to avoid arrest. The district cour t was required to revoke or impound Morales’ operator’s license as pa rt of his sentence, but it failed to do so. See Perry, supra (language of § 28-905(3)(b) mand atory, not discretionary). As such, we vacate Morales’ sent ence for his conviction of operating a motor vehicle to avoid arrest and remand the cause for resentenc ing on this conviction. Excessive Sentences. We address Morales’ assigned error as it relate s to the two remaining sentenc es imposed for his convictions. Morales assigns that the district court imposed sentences that were excessive and an abuse of discretion. We disagree. Morales was convicted of two Class IV felonies. A Class IV felony is punishable by a maximum sentence of 2 years’ imprisonment, 12 months’ post -release supervision, or a $10,000 fine, or both, with no mi nimum sentence required. Neb. Rev. Stat. § 28 -105 (S upp. 2025). As relevant here, bec ause Morales was convicted of a Class I V felony, the district cour t was required to impose a sentence of probation unless there w ere substantial and c ompelling re asons why he could not effe ctively and safely be supervised in the community. See Neb. Rev. Stat. § 29 -2204.02 (Reissue 2016). The district court found those substantial and compelling reasons existed. For each conviction of a Class IV felony, Morales received a sentence of 18 months’ imprisonment and 12 months’ pos t-release sup ervision. This is within statutory limits, and we review for an a buse o f discretion. An abuse of discretion occurs when a t rial court’s decision is based upon rea sons that are untenable or unreasonable or if its action is clearly against justi ce or conscience, reason, and evidence. State v. Geller, 318 Neb. 441, 16 N.W.3d 365 (2025). When imposing sentence, a sentencing judge shou ld 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 a biding conduct, and (6) motivation for the offense, as well as (7) the na ture of the offense and (8) th e amount of violence inv olved in the commission of the crime. State v. Jones, 318 Neb. 840, 19 N.W.3d 499 (2025). However, the sentencing court is not limited to any mathematically applied set of factors, but the appropriateness of the sentence is necessarily a subjective judgment that includes the sentencing ju dge’s observations of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defe ndant’s li fe. Id. At the time o f sent encing, Morales was 27 years old and had earned his GED. He was found to be a very high risk to reoffend. Morales ’ prior convictions include possession of a firearm by a prohibited person, possession of a controlled substance, and operat ing a motor vehicl e to avoid arrest. When sent encing Morales, the dist rict court stated it had considered the relevant statutory factors. I t noted that the high -speed chase endangered Morales, law enforcement, and the public. The district court thought it was evident that Morales had problems w ith people in positions of authority, and that probation was appropriate f or people who would listen and take guidan ce. Morales’ senten ces a re within statutory limits. The district court considere d the appropriate se ntencing factors when fashioning the sentences. Morales has not shown an abuse of discretion, and this assigned error fails.

Credit for Time Served. We note further error in the award of credit for time served. When imposing sentence, the district court gav e Morales credit for time served against each individual sentence. This is contrary to the Nebraska Supreme Court’s instructions in State v. Nelson, 318 Neb. 484, 16 N.W.3d 883 (2025). In Nelson, the Supreme Court held that when a court imposes mul tiple sentences contemporaneously, whether such sentences are ordered to be served consecutively o r concurrently, all available credit for time s erved unde r N eb. Rev. Stat. § 83 -1,106(1) (Reissue 2024) is applied just once, to the aggre gate of all terms imposed. Here, the manner in which the district court applied Morales’ credit did not comport with Nelson, supra. Although, in Nelson, the court modified the award of credit on appeal, because we have vacated the sentence for the conviction of operating a mot or vehicle to avoid arr est and are remanding the cause for rese ntencing on that conviction, we add further instructions on remand. We instruct the district c ourt, after it has rese ntenced Morales, to modify the sentencing order to state that “Morales is entitle d to 72 days o f credit for ti me serv ed against the aggregate of all terms imposed.” Written Sentencing Order. The State argue s, a nd we agree, that the district court’s oral pronouncement of sentence for Morales’ conviction of operating a motor vehicle to avoid arrest differed from its written sentencing order. The wr itten orde r f ailed to include a ter m of 12 month s’ post -relea se supe rvision for this conviction, which was included in the oral pronouncement of sente nce. How ever, because we have vacated thi s sentence and remanded the cause for resentencing on this conviction, we need not address this error. CONCLUSION We find plain error in th e sentence imposed for Morales’ convi ction of o perating a motor vehicle to avoid arre st. We vacate Morales’ sentence for that conviction and re mand the cause for resentencing. We find the remaining sentences im posed were neither e xcessive nor an abuse of discretion. Upon resentencing, we instruc t the district court to modify its s entencing order to state that “Morales is entitled to 72 days of credit for time served against the aggregate of all te rms imposed.” A FFIRMED IN PART, AND IN PART VACATED AND REMANDED WITH DIR ECTIONS.