State v. White

of pavers in the amount of $1,714,996.40 less credit for the
amounts paid by the University.
remaNded WitH direCtioNS.
H eaviCaN, C.J., and S tepHaN, J., not participating.
STATe v. WHITe 	573
Cite as 276 Neb. 573
S tate of N ebraSka , appellee , v .
aaroN WHite , appellaNt .
755 N.W.2d 604
Filed September 12, 2008. 	Nos. S-07-1152, S-07-1153.
1. 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.
2. Sentences: Probation and Parole: Appeal and Error. Whether the sentence
imposed is probation or incarceration is a matter within the discretion of the trial
court, whose judgment denying probation will be upheld in the absence of an
abuse of 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.
Appeal from the District Court for Lancaster County, earl
J. W ittHoff, Judge, on appeal thereto from the County Court
for Lancaster County, laurie yardley, Judge. Judgment of
District Court affirmed.
Dennis R. Keefe, Lancaster County public Defender, and
John C. Jorgensen for appellant.
Jon 	bruning, 	Attorney 	General, 	and 	Nathan 	A. 	Liss
for appellee.
H eaviCaN, 	C.J., 	W rigHt, 	C oNNolly, 	gerrard, 	S tepHaN,
mCC ormaCk, and miller -lermaN, JJ.
W rigHt, J.
NATURe oF CASe
These consolidated appeals are before the court without oral
argument pursuant to Neb. Ct. R. App. p. § 2-111(e)(5)(a).
Aaron White entered pleas of no contest to two charges of
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

driving while under the influence of alcohol (DUI). In each
case, he was sentenced to 120 days in jail, to be served concur-
rently, and fined $200. His driver’s license was revoked for 2
years. White contends that he should have been given a sen-
tence of probation.
SCope oF ReVIeW
[1] A sentence imposed within statutory limits will not be
disturbed on appeal absent an abuse of discretion by the trial
court. State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
[2] Whether the sentence imposed is probation or incarcera-
tion is a matter within the discretion of the trial court, whose
judgment denying probation will be upheld in the absence of
an abuse of discretion. See State v. Worm, 268 Neb. 74, 680
N.W.2d 151 (2004).
FACTS
At 12:42 a.m. on July 27, 2006, White was stopped by an
officer of the University of Nebraska-Lincoln police Department
because his truck’s headlights were not on. The officer noticed
an open container of beer, smelled an odor of alcoholic bev-
erage, and observed that White had bloodshot eyes. White
showed signs of impairment while performing a series of field
sobriety tests. He was placed in custody and transported to a
detoxification facility. There, a breath test showed his breath
alcohol content (bAC) to be .241 of a gram of alcohol per 210
liters of breath. White was issued a citation for DUI, no proof
of insurance, open alcoholic beverage container, no headlights
at night, possession of drug paraphernalia, and possession of
less than 1 ounce of marijuana. He was then transported to
his home.
At 3:44 a.m. the same day, White was stopped a second time
after a Lincoln police Department officer observed White’s
vehicle with one functioning headlight, no license plates, and
homemade “In-Transit” signs. The officer observed that White
had watery, bloodshot eyes; his speech was heavily slurred; and
there was a strong odor of alcohol on his breath. He was given
field sobriety tests and placed in the back seat of the police
cruiser. He failed a preliminary breath test and was transported
574 	276 NebRASKA RepoRTS

to the detoxification facility. There, a breath test showed his
bAC at that time was .196. White was given a citation for DUI
and for not using a seatbelt.
Complaints were filed in Lancaster County Court on August
25, 2006, charging White with second-offense DUI with a bAC
of more than .15, in violation of Neb. Rev. Stat. §§ 60-6,196
(Reissue 2004) and 60-6,197.03 (Cum. Supp. 2006). The com-
plaints alleged that White had previously been convicted of
DUI in 2003 in platte County, Nebraska.
After White entered no contest pleas to the charges on
March 28, 2007, the trial court found him guilty on each
charge of second-offense DUI with a bAC of more than .15.
on May 11, White was sentenced in each case to 120 days in
jail and ordered in each case to pay a fine of $200. His driver’s
license was revoked for 2 years. The sentences of incarcera-
tion were ordered to be served concurrently. on appeal to the
Lancaster County District Court, White’s convictions and sen-
tences were affirmed.
ASSIGNMeNTS oF eRRoR
White assigns the following errors: The district court erred in
(1) affirming the order of the trial court that determined White
was not eligible for probation, (2) determining the constitution-
ality of Neb. Rev. Stat. § 60-6,197.09 (Cum. Supp. 2006) and
whether the statute violated ex post facto prohibitions, and (3)
affirming the trial court’s imposition of excessive sentences
that were disproportionate to the severity of the offenses.
ANALYSIS
Under § 60-6,197.09, an individual who violates one of
several DUI statutes while “participating in criminal proceed-
ings” for DUI is not eligible for probation. White argues that
he should have been eligible for probation because he was not
“participating in criminal proceedings” when he received the
second citation, because he had not yet been arraigned on the
first citation. He contends the trial court abused its discretion
in finding that he was not eligible for probation. However, we
do not reach the question of whether White was “participating
in criminal proceedings,” because the trial court also concluded
STATe v. WHITe 	575
Cite as 276 Neb. 573

that he was not an appropriate candidate for probation. The
only issue we must address, therefore, is whether the court
abused its discretion in sentencing White.
[3] White pled no contest to both of the DUI charges and
was found guilty of second-offense DUI with a bAC of more
than .15. The complaints alleged that White had previously
been convicted of DUI in 2003 in platte County, and he did not
challenge that allegation at trial or on appeal. Whether the sen-
tence imposed is probation or incarceration is a matter within
the discretion of the trial court, whose judgment denying pro-
bation will be upheld in the absence of an abuse of discretion.
See State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004). A
judicial abuse of discretion exists only when the reasons or rul-
ings of a trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying a just result in mat-
ters submitted for disposition. State v. Hessler, 274 Neb. 478,
741 N.W.2d 406 (2007).
At the sentencing hearing, the trial court noted that 9 months
had passed since the citations were issued and that White had
not yet obtained an alcohol evaluation. In addition, there was
no evidence that he had attended Alcoholics Anonymous meet-
ings or enrolled in any treatment program. The presentence
report indicated that White did not believe he had an alcohol
problem. White told the court he had not obtained treatment
because he was a seasonal worker and had no funds during
the winter.
The trial court stated that it was troubled that White was not
willing to accept responsibility for his actions and “seem[ed] to
have excuses for what happened that night.” It stated to White,
“You had to get your truck. You know, [it] had all that valuable
stuff in it. Well, the reason why you talked the officer into let-
ting you go home the first time was . . . to look after your dog.”
based on these factors, the court determined that White was
not eligible for probation. We find no abuse of discretion in the
trial court’s decision. The record supports a finding that White
was not an appropriate candidate for probation.
White argues that the trial court imposed excessive sentences
and that the district court erred in affirming the sentences.
pursuant to § 60-6,197.03(3), if a driver has had one prior
576 	276 NebRASKA RepoRTS

DUI conviction, he is guilty of a Class W misdemeanor and
the court shall order that the driver’s license be revoked for
1 year. A Class W misdemeanor for a second conviction car-
ries with it a maximum sentence of 6 months in prison and a
mandatory minimum sentence of 30 days in prison. Neb. Rev.
Stat. § 28-106 (Cum. Supp. 2006). Thus, White’s sentence of
120 days in jail for each case was within the statutory limits. A
sentence imposed within statutory limits will not be disturbed
on appeal absent an abuse of discretion by the trial court. State
v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
White also assigns as error the district court’s determinations
that § 60-6,197.09 is constitutional and that it is not an ex post
facto law. We do not reach these issues, because neither was
raised by White in the courts below. An issue not raised before
the trial court will not be considered by the Nebraska Supreme
Court on appeal. See State v. Robinson, 272 Neb. 582, 724
N.W.2d 35 (2006). Although the district court addressed the
issues related to § 60-6,197.09, we are not obligated to engage
in an analysis that is not necessary to adjudicate the case and
controversy before us. See Law Offices of Ronald J. Palagi v.
Howard, 275 Neb. 334, 747 N.W.2d 1 (2008).
CoNCLUSIoN
The trial court did not abuse its discretion in finding that
White was not an appropriate candidate for probation. White’s
sentences were within the statutory limits and were not an
abuse of discretion. The judgment of the district court, which
affirmed the judgment of the county court, is affirmed.
affirmed .
STATe v. WHITe 	577
Cite as 276 Neb. 573