State v. Lankford

that commerce is affected. The Federal Arbitration Act would
preempt Nebraska’s Uniform Arbitration Act if there were an
arbitration clause in the Binding Agreement. It is appropriate
that we take note of the fact that the trial judge’s opinion in the
instant case discerned the flaw in the Kramer opinion.
CONCLUSION
Because TBC’s lawsuit is premised upon a contract, the
Binding Agreement of November 30, 2004, and such con-
tract does not contain an agreement to arbitrate disputes,
the trial court properly denied Telemetrix’s motion to com-
pel arbitration.
A ffirmed .
S tAte of N ebrASkA, Appellee , v .
J eSSe lANkford , AppellANt .
756 N.W.2d 739
Filed October 14, 2008. 	No. A-08-460.
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 of the court below.
2. Sentences: Appeal and Error. Whether an appellate court is reviewing a sen-
tence 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. Statutes: Legislature: Intent. In construing a 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 popu-
lar sense.
4. Statutes: Appeal and Error. Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and unambiguous.
5. Administrative Law: Licenses and Permits: Revocation: Time. A license revo-
cation pursuant to Neb. Rev. Stat. § 60-6,197.03 (Cum. Supp. 2006) begins at the
time appointed in the court’s order.
6. Criminal Law: Statutes: Legislature: Intent. Although the rule of lenity
requires a court to resolve ambiguities in a penal code in the defendant’s favor,
the touchstone of the rule of lenity is statutory ambiguity, and where the legisla-
tive language is clear, a court may not manufacture ambiguity in order to defeat
that intent.
STATe v. LANkFORd 	123
Cite as 17 Neb. App. 123
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

Appeal from the district Court for York County: A lAN G.
G leSS, Judge. Affirmed.
eric 	J. 	Williams, 	York 	County 	Public 	defender, 	for
appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
iNbody, Chief Judge, and moore and CASSel, Judges.
CASSel, Judge.
INTROdUCTION
Jesse Lankford was convicted of driving under the influence
(dUI), fourth offense, and his sentence included imprisonment,
a fine, and a 15-year license revocation. The court ordered that
the revocation commence upon Lankford’s release from impris-
onment. Lankford appeals, arguing that the term of imprison-
ment was excessive and that Neb. Rev. Stat. § 60-6,197.03
(Cum. Supp. 2006), which version was in effect at the time of
Lankford’s arrest, required that the period of license revocation
run from the date of sentencing. Because we find § 60-6,197.03
is clear and unambiguous, we reject the latter argument, and
because we also find no merit in his first argument, we affirm
the judgment of the district court.
BACkGROUNd
On June 1, 2007, Lankford was arrested for dUI after the
vehicle he was driving hit a parked vehicle and Lankford was
seen exiting his vehicle with open containers of alcohol. When
Lankford was later apprehended, he failed a preliminary breath
test and refused to submit to a blood test. The arresting officer
believed that Lankford was too intoxicated to complete field
sobriety tests. Lankford was then charged in district court with
fourth-offense dUI, refusal to test, and failure to stop and fur-
nish information.
Pursuant to a plea bargain, Lankford pled guilty to fourth-
offense dUI and the other two charges were dismissed. The
district court sentenced Lankford to 4 to 5 years’ imprisonment,
ordered him to pay a $1,000 fine, and revoked his license for
124 	17 NeBRASkA APPeLLATe RePORTS

15 years. The court ordered that the license revocation begin
upon Lankford’s release from imprisonment.
Lankford timely appeals. Pursuant to Neb. Ct. R. App. P.
§ 2-111(e)(5)(a), no oral argument was allowed.
ASSIGNMeNTS OF eRROR
Lankford assigns that the district court’s sentence was exces-
sive and an abuse of discretion. Lankford also assigns that the
district court erred in ordering the license revocation to com-
mence upon his release from imprisonment.
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 of the court below.
State v. Head, 276 Neb. 354, 754 N.W.2d 612 (2008).
[2] 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. State v. Antoniak, 16 Neb. App. 445,
744 N.W.2d 508 (2008).
ANALYSIS
License Revocation.
Lankford argues that Nebraska law prohibited the district
court from ordering the 15-year license revocation to begin
upon his release from imprisonment. Lankford argues that
the language of § 60-6,197.03 requires that the period of
revocation run from the day on which he was sentenced in
district court.
Section 6,197.03(7) provides as follows:
[T]he court shall, as part of the judgment of conviction
[for a fourth-offense dUI], order that the operator’s
license of such person be revoked for a period of fifteen
years from the date ordered by the court . . . . Such orders
shall be administered upon sentencing, upon final judg-
ment of any appeal or review, or upon the date that any
probation is revoked.
STATe v. LANkFORd 	125
Cite as 17 Neb. App. 123

(emphasis 	supplied.) 	The 	Nebraska 	appellate 	courts 	have
not previously addressed the interpretation of this version of
§ 60-6,197.03.
[3,4] In construing a 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. State v. Wester, 269 Neb. 295, 691
N.W.2d 536 (2005). Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort
to interpretation to ascertain the meaning of statutory words
which are plain, direct, and unambiguous. State v. Hense, 276
Neb. 313, 753 N.W.2d 832 (2008).
[5] The grammatical construction of § 60-6,197.03 mandates
that a license revocation pursuant to this statute begin at the
time appointed in the court’s order. The phrase “ordered by
the court” directly follows and modifies the word “date.” This
means that the date on which the revocation is to begin is the
date that is “ordered by the court.”
Lankford’s argument assumes that the term “order” appear-
ing early in the section must refer to the same thing as the term
“ordered” appearing later in the section and that both terms
refer to the date of sentencing. We note that the first time the
term “order” is mentioned in § 60-6,197.03, the section directs
the court to order a 15-year license revocation. Here, the term
“order” is synonymous with the phrase “impose a sentence”
and is used as a verb that functions as a command to the court.
However, when the section uses the phrase “date ordered by
the court,” the term “ordered” has an entirely different mean-
ing. In this context, “ordered” is technically a verb but is used
as a past participle and thus modifies the word “date.” Because
the terms “order” and “ordered” were used in two entirely dif-
ferent grammatical contexts, we reject Lankford’s assumption
that both terms referred to the same thing.
[6] Lankford urges that § 60-6,197.03 is ambiguous and
concludes that it should be interpreted in his favor. Although
the rule of lenity requires a court to resolve ambiguities in
a penal code in the defendant’s favor, the touchstone of the
rule of lenity is statutory ambiguity, and where the legisla-
tive language is clear, a court may not manufacture ambiguity
126 	17 NeBRASkA APPeLLATe RePORTS

in order to defeat that intent. State v. Ramirez, 274 Neb. 873,
745 N.W.2d 214 (2008). We will not construe this statute in
Lankford’s favor, because it is not ambiguous. Lankford can-
not manufacture ambiguity by merely stating that he reads the
statute in a different way.
Excessive Sentence.
Lankford also argues that the court imposed an excessive
sentence. The factors to be considered by a sentencing court
are well known, and we need not recite them here. See State
v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007). When a
sentence imposed within statutory limits is alleged on appeal
to be excessive, the appellate court must determine whether
the sentencing court abused its discretion in considering and
applying these factors as well as any applicable legal principles
in determining the sentence to be imposed. Id. The sentence
imposed was within statutory limits, and we have examined
the record concerning all relevant factors and applicable legal
principles. We find no abuse of discretion by the district court
in its determination of the sentence.
CONCLUSION
We find that the district court did not err in sentencing
Lankford. The district court did not err in ordering that the
15-year license revocation prescribed in § 60-6,197.03 com-
mence upon Lankford’s release from imprisonment. The dis-
trict court did not abuse its discretion in sentencing Lankford
to 4 to 5 years’ imprisonment.
A ffirmed .
STATe v. LANkFORd 	127
Cite as 17 Neb. App. 123