State v. Borges

State of NebraSka , appellee , v.
raymoNd a. borgeS, appellaNt.
791 N.W.2d 336
Filed March 2, 2010. 	No. A-09-829.
1. Judgments: Appeal and Error. Regarding questions of law, an appellate court
has an obligation to reach an independent, correct conclusion irrespective of the
determination made by 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. 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.
4. Constitutional Law: Equal Protection. The Nebraska Constitution and the U.S.
Constitution have identical requirements for equal protection challenges.
5. Equal Protection: Proof. The initial inquiry in an equal protection analysis
focuses on whether the challenger is similarly situated to another group for the
purpose of the challenged governmental action; absent this threshold showing,
one lacks a viable equal protection claim.
6. ____: ____. The party alleging a violation of equal protection has the burden to
prove that the classification violates the principle of equal protection.
7. Equal Protection. The Equal Protection Clause does not forbid classifications; it
simply keeps governmental decisionmakers from treating differently persons who
are in all relevant respects alike.
8. Constitutional Law: Equal Protection: Statutes. In an equal protection chal-
lenge to a statute, the degree of judicial scrutiny to which the statute is to be
subjected may be dispositive; if a legislative classification involves either a
suspect class or a fundamental right, courts will analyze the statute with strict
scrutiny, and if it does not, then courts analyze the classification using rational
basis review.
9. Equal Protection. Under the rational basis test, the Equal Protection Clause is
satisfied as long as there is (1) a plausible policy reason for the classification, (2)
the legislative facts on which the classification is apparently based may rationally
have been considered to be true by the governmental decisionmaker, and (3) the
relationship of the classification to its goal is not so attenuated as to render the
distinction arbitrary or irrational.
10. ____. The rational relationship standard, as the most relaxed and tolerant form
of judicial scrutiny under the Equal Protection Clause, is offended only if a clas-
sification rests on grounds which are wholly irrelevant to the achievement of the
government’s objectives.
11. ____. In an equal protection analysis, when determining whether a rational basis
exists for a legislative classification, courts look to see if any state of facts can be
conceived to reasonably justify the disparate treatment which results.
322 	18 NEbRASkA APPEllATE REPoRTS
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12. Equal Protection: Proof. A state-sponsored specialized program for drug offend-
ers does not violate the Equal Protection Clause when a defendant cannot prove
he or she was similarly situated to the group for which the program was designed
and when the program is rationally related to the State’s legitimate interests.
13. 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 the 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.
14. Sentences. In imposing a sentence, the sentencing court is not limited to any
mathematically applied set of factors.
15. ____. 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.
Appeal from the District Court for Cheyenne County: derek
C. Weimer, Judge. Affirmed.
James 	R. 	Mowbray 	and 	kelly 	S. 	breen, 	of 	Nebraska
Commission on Public Advocacy, for appellant.
Jon bruning, Attorney General, and Erin E. Tangeman for
appellee.
SieverS, CarlSoN, and moore, Judges.
SieverS, Judge.
Raymond A. borges pled guilty to attempted delivery of
a controlled substance and was sentenced to 15 to 20 years’
imprisonment. borges appeals his sentence, and for the reasons
set forth herein, we affirm the sentencing order of the district
court for Cheyenne County. Pursuant to Neb. Ct. R. App. P.
§ 2-111(E)(5)(a) (rev. 2008), this case was submitted without
oral argument.
FACTUAl AND PRoCEDURAl
bACkGRoUND
borges was arrested on November 19, 2008, when he sold
1 gram of methamphetamine to a person cooperating with
police officers involved in the Western Nebraska Intelligence
and Narcotics Group. When the officers arrested borges,
he dropped a plastic baggie containing methamphetamine.
Police then searched his house, where they found additional
STATE v. boRGES 	323
Cite as 18 Neb. App. 322

methamphetamine. In total, borges had 6.79 grams of metham-
phetamine in his possession at the time of his arrest.
borges was charged in an information filed April 27, 2009, in
the district court for Cheyenne County, with delivery of meth-
amphetamine, in violation of Neb. Rev. Stat. § 28-416(1)(a)
(Reissue 2008), and possession of methamphetamine with
intent to deliver, in violation of § 28-416(1)(a). on May 12, the
district court accepted borges’ guilty plea to attempted delivery
of methamphetamine, which was the charge in the amended
information, in violation of Neb. Rev. Stat. § 28-201 (Reissue
2008) and § 28-416, a Class III felony.
on June 18, 2009, borges filed a motion for a Specialized
Substance Abuse Supervision (SSAS) evaluation. The district
court held a hearing on such motion on July 14 and filed its
order the following day. The court overruled borges’ motion
for an SSAS evaluation, finding that borges did not have a con-
stitutional right under the U.S. or Nebraska Equal Protection
Clause to such evaluation. The court found that borges was
not similarly situated to offenders given SSAS evaluations,
based upon the evidence adduced at the hearing, and that even
if he were similarly situated, there was a rational relationship
between the State’s legitimate interests and the action taken by
the State. The district court filed its sentencing order on July
21, and in such, the court sentenced borges to 15 to 20 years’
imprisonment. borges filed his notice of appeal with this court
on August 20.
ASSIGNMENTS oF ERRoR
borges assigns as error that the district court (1) erred
when it denied his motion for an SSAS assessment, in viola-
tion of his right to equal protection under the federal and state
Constitutions, and (2) abused its discretion in sentencing him
without consideration of an SSAS assessment.
STANDARD oF REVIEW
[1] Regarding questions of law, an appellate court has an
obligation to reach an independent, correct conclusion irre-
spective of the determination made by the court below. State v.
Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000).
324 	18 NEbRASkA APPEllATE REPoRTS

[2,3] 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. Thompson, 15 Neb.
App. 764, 735 N.W.2d 818 (2007). A judicial abuse of discre-
tion 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 disposi-
tion. Id.
ANAlYSIS
Equal Protection.
borges first argues that he had a constitutional right under
the 	Equal 	Protection 	Clauses 	of 	the 	U.S. 	and 	Nebraska
Constitutions to an SSAS evaluation, which is available to
other drug offenders in certain Nebraska counties. The SSAS
program was implemented to reduce overcrowding in prisons
and promote rehabilitation for drug offenders who would not
be considered suitable for traditional or intensive supervi-
sion probation. The program is offered to offenders with prior
felony drug convictions. To qualify, an offender must complete
an assessment, which includes a “whole life needs” assessment
and a chemical dependency evaluation. The SSAS program
started in 2006 and has been utilized in Douglas, lancaster,
Sarpy, Dakota, buffalo, and Dawson Counties. At the time
of the hearing, the remaining 87 Nebraska counties were not
involved with the program.
[4,5] The Nebraska Constitution and the U.S. Constitution
have identical requirements for equal protection challenges.
Kenley v. Neth, 271 Neb. 402, 712 N.W.2d 251 (2006). The ini-
tial inquiry in an equal protection analysis focuses on whether
the challenger is similarly situated to another group for the
purpose of the challenged governmental action. Id. Absent
this threshold showing, one lacks a viable equal protection
claim. Id.
[6] The district court concluded that borges was not simi-
larly situated based upon the finding that the evidence did not
establish what type of criminal defendant is evaluated for the
STATE v. boRGES 	325
Cite as 18 Neb. App. 322

SSAS program in the counties where the program is being uti-
lized, other than the generic classification “felony drug offend-
ers.” The court specifically listed a lack of evidence on the eli-
gible defendants’ “prior offenses (nature and number of priors),
whether they had been on probation in the past and the success
of those efforts, whether they had been incarcerated previously,
for how long and with what level of recidivism.” The party
alleging a violation of equal protection has the burden to prove
that the classification violates the principle of equal protec-
tion. See Le v. Lautrup, 271 Neb. 931, 716 N.W.2d 713 (2006).
borges did not identify the precise evaluation criteria for the
program, other than that several assessments were required, and
failed to show that he would be eligible for the SSAS program
even if it were available to him in Cheyenne County. Thus, we
agree that the evidence adduced at the hearing failed to show
that borges was similarly situated to felony drug offenders who
had been deemed eligible for the SSAS program.
[7,8] However, even if borges were similarly situated to
other felony drug offenders who were eligible for the SSAS
program, he failed to show that he was entitled to an SSAS
evaluation under the Equal Protection Clause.
The Equal Protection Clause does not forbid classi-
fications; it simply keeps governmental decisionmakers
from treating differently persons who are in all relevant
respects alike. . . . In an equal protection challenge to a
statute, the degree of judicial scrutiny to which the statute
is to be subjected may be dispositive. . . . If a legislative
classification involves either a suspect class or a funda-
mental right, courts will analyze the statute with strict
scrutiny. . . . If it does not, then courts analyze the clas-
sification using rational basis review.
State v. Senters, 270 Neb. 19, 27, 699 N.W.2d 810, 818 (2005)
(citations omitted).
[9-11] borges argues in his brief that he has a fundamental
liberty interest and that therefore, strict scrutiny should be uti-
lized by the court. However, what that liberty interest would be
in this case is unclear and, during the hearing on the motion
for the SSAS evaluation, borges’ counsel conceded that the
rational basis test applies.
326 	18 NEbRASkA APPEllATE REPoRTS

Under the rational basis test, the Equal Protection Clause
is satisfied as long as there is (1) a plausible policy reason
for the classification, (2) the legislative facts on which
the classification is apparently based may rationally have
been considered to be true by the governmental decision-
maker, and (3) the relationship of the classification to its
goal is not so attenuated as to render the distinction arbi-
trary or irrational. . . . The rational relationship standard,
as the most relaxed and tolerant form of judicial scrutiny
under the Equal Protection Clause, is offended only if a
classification rests on grounds which are wholly irrelevant
to the achievement of the government’s objectives. . . .
When determining whether a rational basis exists for a
legislative classification, courts look to see if any state of
facts can be conceived to reasonably justify the disparate
treatment which results.
Le v. Lautrup, 271 Neb. at 936-37, 716 N.W.2d at 719-20 (cita-
tions omitted).
[12] The geographic limitations on the SSAS program meet
the rational basis test. Deb Minardi, a deputy probation admin-
istrator who supervises the SSAS program, testified that the six
counties selected were chosen for the test program because they
have the highest proportions of felony drug offenders in the
state. Minardi testified that the program was not implemented
in all 93 Nebraska counties at the onset of the program because
of the costs of ensuring each county had the infrastructure and
personnel to conduct the program. Minardi testified that the
program shows preliminary promise for rehabilitation and refor-
mation of participants but has not been in place long enough to
have any definitive evidence of success. because of high costs,
it seems that the program would not likely be expanded to the
remaining counties until there is such evidence. The State has a
legitimate interest in reducing the number of inmates incarcer-
ated in state facilities, as well as in a lower rate of recidivism
among felony drug offenders. Focusing a test program in the
counties with the highest number of felony drug offenders is
relevant to these objectives and rationally related to these inter-
ests. Thus, we hold that a state-sponsored specialized program
for drug offenders does not violate the Equal Protection Clause
STATE v. boRGES 	327
Cite as 18 Neb. App. 322

when a defendant cannot prove he or she was similarly situated
to the group for which the program was designed and when the
program is rationally related to the State’s legitimate interests.
Therefore, this assignment of error lacks merit.
Borges’ Sentence.
[13] borges argues that the district court abused its discre-
tion by sentencing him to 15 to 20 years’ imprisonment without
considering an SSAS evaluation. Generally, where a sentence
imposed within the statutory limits is alleged on appeal to be
excessive, the appellate court must determine whether the sen-
tencing 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. Alford, 278
Neb. 818, 774 N.W.2d 394 (2009). Neb. Rev. Stat. § 28-105
(Reissue 2008) specifies that the penalty for a Class III felony
is 1 to 20 years’ imprisonment, a $25,000 fine, or both. borges’
sentence falls within the prescribed statutory range.
[14,15] In imposing a sentence, the sentencing court is not
limited to any mathematically applied set of factors. State v.
Reid, 274 Neb. 780, 743 N.W.2d 370 (2008). The appropriate-
ness 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. The district court clearly
considered the SSAS program as one of its sentencing options.
However, the court pointed out in its July 15, 2009, order on
the motion for an SSAS evaluation that the program would
not be practicable for borges, because the program is not
available in Cheyenne County. The SSAS program requires
that offenders report to a center located in each participat-
ing county. The closest reporting center to Cheyenne County
is located in lexington, Nebraska, which is about 200 miles
away. Furthermore, a senior probation officer testified that pro-
bation officers in counties that are not involved with the SSAS
program have not been trained to conduct the whole life needs
assessment, which is one of the necessary components.
borges has a long history of substance abuse. He admits
to using alcohol and various drugs and being an addict for
328 	18 NEbRASkA APPEllATE REPoRTS

22 years, and he has used methamphetamines on and off for the
past 15 years. borges has an extensive criminal history, includ-
ing at least 30 convictions, 12 of which were felony arrests.
borges has had 11 alcohol-related arrests and 7 drug-related
arrests. He has been sentenced to jail time 16 times, to prison
on 4 separate occasions, and to probation 6 times. Notably,
borges has had his probation revoked on three occasions.
borges tested very high on the alcohol, drug, violence, and
antisocial scales in his presentence investigation report. based
upon the impracticality of administering the SSAS evaluation
in Cheyenne County, a county that does not currently offer the
program, and borges’ criminal history, we find that the district
court did not abuse its discretion in sentencing borges to 15 to
20 years’ imprisonment. Therefore, borges’ second assignment
of error also lacks merit.
affirmed.
State of NebraSka , appellaNt, v.
david l. aNderSoN, appellee .
779 N.W.2d 623
Filed March 2, 2010. 	No. A-09-870.
1. Sentences: Appeal and Error. When the State appeals and claims that a sentence
imposed on a defendant is excessively lenient, the standard of review is whether
the sentencing court abused its discretion in the sentence imposed.
2. Sentences. Whether a defendant is entitled to credit for time served is a question
of law.
3. Statutes. Statutory language is to be given its plain and ordinary meaning.
4. ____. It is not within the province of the courts to read a meaning into a statute
that is not there or to read anything direct and plain out of a statute.
5. Sentences: Words and Phrases. The phrase “in custody” under Neb. Rev. Stat.
§ 83-1,106 (Reissue 2008) means judicially imposed physical confinement in a
governmental facility authorized for detention, control, or supervision of a defend-
ant before, during, or after a trial on a criminal charge.
Appeal from the District Court for York County: alaN g.
gleSS, Judge. Reversed and remanded with directions.
Timothy S. Sieh, York County Attorney, for appellant.
No appearance for appellee.
STATE v. ANDERSoN 	329
Cite as 18 Neb. App. 329