State v. Moore

the Nebraska Rules of Professional Conduct. For the above
reasons, we accept the recommendation of the referee and issue
a public reprimand.
CONCLUSION
The motion of the Counsel for Discipline is sustained in
part and in part overruled. We adopt the referee’s findings
of fact and find by clear and convincing evidence that Orr
violated DR 1-102(A)(1) and DR 6-101(A)(1) and (2) of
the Code of Professional Responsibility and §§ 3-501.1 and
3-508.4(a) of the Nebraska Rules of Professional Conduct,
as well as his oath of office as an attorney. It is the judg-
ment of this court that Orr should be, and hereby is, publicly
reprimanded.
Judgment of public reprimand.
Wright and connolly, JJ., not participating.
State of nebraSka , appellee , v.
terrence d. moore , appellant.
759 N.W.2d 698
Filed January 30, 2009. 	No. S-08-417.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination 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. 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 violence involved in the commission of the crime.
4. ____. In imposing a sentence, the sentencing court is not limited to any mathe-
matically applied set of factors.
5. ____. 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 	Douglas 	County:
W. mark aShford, Judge. Affirmed.
STATe v. mOORe 	111
Cite as 277 Neb. 111
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

Thomas C. Riley, Douglas County Public Defender, Scott C.
Sladek, Joseph J. Kehm, and Sean m. Conway for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
heavican, 	c.J., 	Wright, 	connolly, 	gerrard, 	Stephan,
mccormack , and miller-lerman, JJ.
heavican, c.J.
INTRODUCTION
Terrence D. moore pled guilty to two counts of second
degree murder and two counts of use of a firearm to commit
a felony. The district court sentenced moore to imprisonment
for “a period of Life to Life” on one count of second degree
murder and 50 to 50 years’ imprisonment on the associated use
of a deadly weapon to commit a felony conviction. As to the
other count of second degree murder, moore was sentenced to
30 to 45 years’ imprisonment; on the associated use of a deadly
weapon to commit a felony conviction, moore was sentenced
to 20 to 30 years’ imprisonment. All sentences were ordered to
be served consecutively. moore appeals. We affirm.
BACKGROUND
moore pled guilty to two counts of second degree murder
and two counts of use of a deadly weapon to commit a felony
for the shooting deaths of Terry Jasper and Diane Caveye. A
more detailed factual account can be found in our prior opinion
in this case.1
moore was originally sentenced on may 23, 2006. In a
memorandum opinion filed on January 4, 2007, in case No.
S-06-699, we vacated moore’s sentences and remanded the
cause for resentencing. Resentencing took place on march
20, 2007. At that time, moore was sentenced to 30 to 45
years’ imprisonment on each count of second degree mur-
der, sentences to be served concurrently, and 10 to 10 years’
imprisonment on each use of a deadly weapon conviction,
1 State v. Moore, 274 Neb. 790, 743 N.W.2d 375 (2008).
112 	277 NeBRASKA RePORTS

sentences to be served consecutively to one another and
to the sentences for second degree murder. The State then
appealed, arguing the sentences were excessively lenient.
We agreed, vacated those sentences, and again remanded the
cause for resentencing.2
Upon resentencing, moore was sentenced to life to life
imprisonment on the first count of second degree murder and
50 to 50 years’ imprisonment on the associated use of a deadly
weapon to commit a felony conviction. As to the second count
of second degree murder, moore was sentenced to 30 to 45
years’ imprisonment; on the associated use of a deadly weapon
to commit a felony conviction, moore was sentenced to 20
to 30 years’ imprisonment. All sentences were ordered to be
served consecutively.
moore appeals.
ASSIGNmeNTS OF eRROR
On appeal, moore assigns, restated, that (1) the sentence
imposed by the district court of life to life imprisonment for
second degree murder is not an authorized sentence and (2) the
sentences were excessive.
STANDARD OF ReVIeW
[1] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the determination made by the
court below.3
[2] A sentence imposed within statutory limits will not be
disturbed on appeal absent an abuse of discretion by the trial
court.4 An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.5
2 Id.
3 State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006).
4 State v. Reid, 274 Neb. 780, 743 N.W.2d 370 (2008).
5 Id.
STATe v. mOORe 	113
Cite as 277 Neb. 111

ANALYSIS
Life to Life Imprisonment as Authorized Sentence
for Class IB Felony.
On appeal, moore argues that the life to life sentence
imposed by the district court was not an authorized penalty
under Neb. Rev. Stat. § 29-2204(1)(a) (Reissue 2008), which
provides in part that in imposing an indeterminate sentence
upon an offender, the court shall
(ii) Beginning July 1, 1998:
(A) Fix the minimum and maximum limits of the sen-
tence to be served within the limits provided by law for
any class of felony other than a Class IV felony, except
that when a maximum limit of life is imposed by the
court for a Class IB felony, the minimum limit may be
any term of years not less than the statutory mandatory
minimum. If the criminal offense is a Class IV felony, the
court shall fix the minimum and maximum limits of the
sentence, but the minimum limit fixed by the court shall
not be less than the minimum provided by law nor more
than one-third of the maximum term and the maximum
limit shall not be greater than the maximum provided
by law[.]
In State v. Marrs,6 we rejected the argument now advanced
by moore, that life to life imprisonment was not an authorized
sentence. This court concluded that there was
no statutory requirement that the affirmatively stated mini-
mum term for a Class IB felony sentence be less than the
maximum term [and that a]lthough § 29-2204(1)(a)(ii)
permits a sentencing judge imposing a maximum term
of life imprisonment for a Class IB felony to impose
a minimum term of years not less than the statutory
mandatory minimum, it does not require the judge to
do so.7
We therefore held that a life to life sentence for second degree
murder was a permissible sentence under § 29-2204.
6 State v. Marrs, supra note 3.
7 Id. at 578, 723 N.W.2d at 504.
114 	277 NeBRASKA RePORTS

moore acknowledges that Marrs is on point, but contends
that we should revisit that decision. In support of this conten-
tion, moore directs us to our opinion in Poindexter v. Houston.8
moore argues that in Poindexter, which was decided after
Marrs, we concluded that a sentence with a minimum term of
life is in effect a sentence of life imprisonment without parole.
moore argues that under Neb. Rev. Stat. § 28-105 (Reissue
2008), which sets forth the range of penalties for felonies, such
a sentence is only permissible for a Class IA felony. Because
moore was convicted of a Class IB felony, he argues, his life to
life sentence was in violation of § 28-105. We decline moore’s
invitation to reverse Marrs.
As an initial matter, we disagree with moore’s character-
ization of our opinion in Poindexter. In Poindexter, we were
presented with the question of whether Nebraska law required
the commutation of a life sentence to a term of years before
a defendant was eligible for parole; we concluded that in
both 1969 and 2008, such was required. We made no finding
that a life to life sentence was in effect a life sentence with-
out parole.
And to the extent that moore argues that his life to life
sentence was in violation of § 28-105, we also reject that
contention. Though admittedly not expressly addressed in
Marrs, it is clear from a review of the Marrs decision that in
interpreting § 29-2204, this court was aware of and considered
§ 28-105.
moore’s first assignment of error is without merit.
Excessive Sentences.
[3-5] moore also argues that the sentences imposed by the
district court were excessive. When imposing a sentence, a
sentencing judge should consider the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cul-
tural 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 violence involved
8 Poindexter v. Houston, 275 Neb. 863, 750 N.W.2d 688 (2008).
STATe v. mOORe 	115
Cite as 277 Neb. 111

in the commission of the crime.9 In imposing a sentence,
the sentencing court is not limited to any mathematically
applied set of factors.10 The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentenc-
ing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the
defendant’s life.11
We have reviewed the record and conclude that the district
court did not abuse its discretion in sentencing moore as it did.
moore’s argument that his sentences were excessive is also
without merit.
CONCLUSION
For the reasons discussed above, we conclude that moore’s
arguments on appeal are without merit. We therefore affirm the
judgment of the district court.
affirmed.
9 State v. Reid, supra note 4.
10 Id.
11 Id.
mehruz kamal , appellee , v. Sohel
mohammed imroz , appellant.
759 N.W.2d 914
Filed January 30, 2009. 	No. S-08-491.
1. Child Custody. Neb. Rev. Stat. §§ 42-364(3) and 43-2923 (Reissue 2008) require
the district court to devise a parenting plan and to consider joint legal and physi-
cal custody. The statutes do not require the district court to grant equal parenting
time to the parents if such is not in the child’s best interests.
2. Child Custody: Appeal and Error. The Nebraska Supreme Court reviews child
custody determinations de novo on the record, but the trial court’s decision will
normally be upheld absent an abuse of discretion.
3. Child Custody. The fact that one parent might interfere with the other’s rela-
tionship with the child is a factor that the trial court may consider in granting
custody, but it is not a determinative factor.
Appeal from the District Court for Douglas County: Sandra
l. dougherty, Judge. Affirmed.
116 	277 NeBRASKA RePORTS