State v. Fenin

to the county court, that the children’s best interests were best
served by the appointment of Raul and Maria as their guard-
ians. Raul and Maria, as well as their extended family, are in
many ways an exemplary model for these children who have
been tragically deprived of their own parents. It is apparent
that they will have a loving and supportive environment in
Lexington and will unquestionably be well cared for. That said,
our conclusion does not denigrate in any way the love and con-
cern Carolyn has for her grandchildren. Finally, Jorge is quite
clearly a mature, responsible, and thoughtful young adult who
is an appropriate conservator for the children.
CONCLUSION
The decision of the county court for Dawson County is
based on the best interests of the children, it conforms to the
law, it is supported by competent evidence, and it is neither
arbitrary, capricious, nor unreasonable.
A ffirmed.
StAte of NebrASkA, Appellee , v.
JohN A. feNiN, AppellANt.
760 N.W.2d 358
Filed January 27, 2009. 	No. A-08-987.
1. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision made by the court below.
2. Sentences: Appeal and Error. A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
3. Appeal and Error. A proper objection, stating the specific grounds therefor, and
an adverse ruling thereon must appear on the record to preserve the issue for
consideration on appeal.
4. Sentences: Appeal and Error. A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
5. 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 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.
348 	17 NebRASkA AppeLLATe RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

Appeal from the District Court for Sarpy County: mAx
kelch, Judge. Affirmed.
Michael D. Nelson and Cathy R. Saathoff, of Nelson Law,
L.L.C., for appellant.
Jon bruning, Attorney General, and James D. Smith for
appellee.
irwiN, cArlSoN, and cASSel, Judges.
cASSel, Judge.
INTRODUCTION
John A. Fenin appeals from the district court’s sentence of
45 to 55 years’ imprisonment for sexual assault and incest.
Fenin claims that the State violated its agreement to remain
silent during sentencing and that the court imposed excessive
sentences. We find that Fenin failed to preserve an objection to
the State’s violation and that the district court did not abuse its
discretion in sentencing Fenin. We therefore affirm.
bACkGROUND
On March 10, 2008, Fenin pled no contest to the charges of
first degree sexual assault, a Class II felony punishable by 1 to
50 years’ imprisonment, and incest, a Class III felony punish-
able by 1 to 20 years’ imprisonment and up to a $25,000 fine.
The State agreed that if Fenin pled no contest to these charges,
it would drop third degree sexual assault of a child and child
abuse charges, refrain from filing further charges based on
Fenin’s alleged assault of the victim’s sister, and would remain
silent during sentencing.
At sentencing, the State failed to remain silent. After the
court heard defense counsel’s argument regarding sentenc-
ing, the court stated that it would “hear from the State.” The
State then presented an argument regarding sentencing. As part
of the argument, the prosecuting attorney discussed Fenin’s
alleged abuse of the victim’s sister, which was not the basis for
the charges. Fenin’s counsel then objected during this portion
of the State’s argument. The exchange went as follows:
STATe v. FeNIN 	349
Cite as 17 Neb. App. 348

[prosecutor:] I would also comment her sister has since
come forward and there is such evidence the same has
occurred to [the victim’s sister], the same things perpe-
trated on [the victim] by the defendant, so I would argue
to the Court that this is his third time he has done this to
a child.
If you look at the criminal history —
[Defense counsel]: Your Honor, I’m sorry, but I — I
don’t mean to interrupt, but I would object to that at
this point.
THe COURT: I’m not going to consider it because the
State has the opportunity to file charges if they wanted to,
so I’m not going to consider anything with the sister. That
would not be appropriate.
[prosecutor]: Your Honor, I can argue as my allocution
that this is in the pSI, these allegations, so I think it’s
appropriate that I do make those comments.
THe COURT: It’s uncharged misconduct and so —
Was that part of the plea agreement, that you wouldn’t
file on the sister?
[prosecutor]: Yes.
THe COURT: Is that correct, [defense counsel]?
[Defense counsel]: That’s correct, Your Honor.
THe COURT: Okay. Then I do think it’s appropriate,
[defense counsel]. [The State] can argue it then.
The State subsequently resumed its argument, and Fenin
did not make any further objections to the State’s argument.
Fenin made no attempt to withdraw his plea. The district court
sentenced Fenin to 40 to 50 years’ imprisonment for the sexual
assault conviction and 5 years’ imprisonment for the incest
conviction. The court ordered that the sentences be served
consecutively.
Fenin timely appeals.
ASSIGNMeNTS OF eRROR
Fenin makes two assignments of error, which we restate:
First, Fenin alleges that the district court erred in overruling
his objection to the State’s failure to maintain silence during
350 	17 NebRASkA AppeLLATe RepORTS

sentencing. Second, Fenin alleges that the district court erred in
imposing excessive sentences.
STANDARD OF ReVIeW
[1] When dispositive issues on appeal present questions of
law, an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision made by the court
below. State v. Birge, 263 Neb. 77, 638 N.W.2d 529 (2002).
[2] A sentence imposed within statutory limits will not
be disturbed on appeal absent an abuse of discretion by the
trial court. State v. Kinkennon, 275 Neb. 570, 747 N.W.2d
437 (2008).
ANALYSIS
Plea Bargain.
Fenin contends that he is entitled to specific performance of
the plea bargain agreement. Fenin argues that because the State
breached an agreement to remain silent during sentencing, he
is entitled to specific enforcement of the plea bargain. We con-
clude that Fenin is not entitled to such relief because he failed
to object to the State’s failure to remain silent.
pursuant to State v. Birge, supra, when the State violates a
plea bargain which requires the State to remain silent at sen-
tencing, the defendant has the option of either withdrawing his
plea or objecting to the State’s failure to remain silent at sen-
tencing. Subsequently, when the defendant has objected but has
not sought to withdraw his plea, he may seek specific perform-
ance of the plea agreement, such as resentencing by a different
judge on the terms of the plea bargain. See id. However, the
Birge opinion did not eliminate the requirement that the issue
of the breach must be preserved, pursuant to State v. Shepherd,
235 Neb. 426, 455 N.W.2d 566 (1990), disapproved in part on
other grounds, State v. Birge, supra.
[3] Fenin did interpose an objection, but it was insufficient
to preserve an error related to the State’s failure to maintain
silence during sentencing. A proper objection, stating the spe-
cific grounds therefor, and an adverse ruling thereon must
appear on the record to preserve the issue for consideration on
appeal. State v. Birge, 215 Neb. 761, 340 N.W.2d 434 (1983).
STATe v. FeNIN 	351
Cite as 17 Neb. App. 348

Defense counsel’s statement that he “would object to that at
this point” does not set forth any specific ground for the objec-
tion. because Fenin did not object until the State had already
completed a significant portion of its argument, the general
objection had no apparent relationship to the State’s failure to
remain silent. Rather, the context of the objection suggested an
entirely separate basis for objection. The colloquy that followed
the objection evidently and naturally led the district court to
believe that Fenin was objecting to the prosecution’s statements
regarding the victim’s sister. The district court’s ruling was
limited to the issue apparently identified by Fenin’s counsel.
because Fenin made no specific objection to the State’s failure
to remain silent and received no ruling in this matter, he failed
to preserve this issue for appeal.
Sentencing.
[4,5] Fenin alleges that the district court’s sentences consti-
tuted an abuse of discretion. A sentence imposed within statu-
tory limits will not be disturbed on appeal absent an abuse of
discretion by the trial court. State v. Kinkennon, 275 Neb. 570,
747 N.W.2d 437 (2008). Fenin’s sentences fall within statutory
guidelines so they may only be overturned for abuse of discre-
tion. 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) moti-
vation 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. We have reviewed the record and determined
that, considering the above factors, the district court did not
abuse discretion in sentencing Fenin. In particular, we note
that Fenin had previously been convicted of first degree sexual
assault on a child and had an extensive criminal record dating
back to his youth.
CONCLUSION
We conclude that Fenin failed to preserve an objection to
the State’s violation of the plea bargaining agreement that the
State would remain silent during sentencing. Fenin made only
352 	17 NebRASkA AppeLLATe RepORTS

a general objection which did not preserve the claim he now
raises on appeal. We also conclude that the district court’s sen-
tences were not an abuse of discretion. We therefore affirm the
sentences imposed by the district court.
A ffirmed.
STATe v. FeNIN 	353
Cite as 17 Neb. App. 348