State v. Oceguera

description to reflect the fence line as the property boundary.
The record therefore does not support a finding of mutual mis-
take. In the absence of such mistake, the four corners of the
written agreement must control.24
A court may reform a written agreement only when there
has been either a mutual mistake or a unilateral mistake caused
by fraud or inequitable conduct on the part of the party against
whom reformation is sought.25 Because the record does not
support a finding of mutual mistake, we find that the district
court erred in reforming the contract.
ConClusIon
For the foregoing reasons, the district court erred in find-
ing that the evidence established a mutual mistake, because
there was not clear and convincing evidence that the parties
had a mistaken understanding of the term at issue. As such,
reformation on the basis of mutual mistake was also erroneous.
Accordingly, we reverse the judgment and remand the cause
with directions to the district court to enter judgment consistent
with this opinion, reinstating and upholding the January 25,
1993, written agreement with respect to all parties.
R eveRsed and Remanded with diRections.
wRight, J., not participating.
24 see id.
25 In re Estate of Dueck, 274 neb. 89, 736 n.W.2d 720 (2007).
sTATe v. oCeguerA 	717
Cite as 281 neb. 717
state of nebRaska , appellee , v.
eleazaR ocegueRa , JR., appellant.
798 n.W.2d 392
Filed June 10, 2011. 	no. s-10-605.
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. Constitutional Law: Double Jeopardy: Sentences: Appeal and Error. The
Double Jeopardy Clause of the federal Constitution is not offended if an appellate
court remands a cause for resentencing.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

3. Double Jeopardy: Sentences: Proof. A failure of proof at an enhancement hear-
ing is not analogous to an acquittal, and such a failure of proof does not trigger
double jeopardy protections.
4. Prior Convictions: Drunk Driving: Habitual Criminals: Sentences: Evidence.
The use of prior convictions to enhance a sentence for driving under the influence
is similar to the use of prior convictions to enhance a sentence under our habitual
criminal scheme, in which evidence of prior convictions must be introduced.
Appeal from the District Court for Colfax County: maRy c.
gilbRide, Judge. sentence vacated, and cause remanded with
directions.
Timothy J. Wollmer, of egr & Birkel, P.C., for appellant.
Jon Bruning, Attorney general, and Kimberly A. Klein for
appellee.
heavican, c.J., connolly, geRRaRd, stephan, mccoRmack ,
and milleR-leRman, JJ.
heavican, c.J.
InTroDuCTIon
eleazar oceguera, Jr., appeals his convictions and sentences
from the Colfax County District Court. oceguera pled guilty to
driving under the influence (DuI), charged as a fourth offense,
a Class III felony, as well as operating a motor vehicle to avoid
arrest, a Class IV felony. oceguera alleges that the state pre-
sented evidence of only two valid prior DuI convictions at his
enhancement and sentencing hearing. oceguera asks that we
vacate his sentence and remand the cause for sentencing on
DuI, third offense. The state agrees that only two valid prior
offenses were proved, but requests that we remand for a new
enhancement hearing. We agree that the state failed to present
sufficient evidence of three valid prior convictions for DuI,
and we remand the cause with directions for a new enhance-
ment and sentencing hearing.
BACKgrounD
on January 1, 2010, an officer of the Colfax County sheriff’s
Department witnessed oceguera driving on u.s. Highway 30 in
Colfax County, nebraska. oceguera’s vehicle traveled onto the
shoulder of the road twice, then crossed the divided white line.
718 	281 neBrAsKA rePorTs

oceguera refused to stop when the officer attempted to pull
him over. oceguera finally stopped his vehicle and fled on foot,
at which point a second officer of the Colfax County sheriff’s
Department arrived. The officers apprehended oceguera shortly
thereafter. oceguera resisted arrest by trying to physically fight
off the officers.
once 	oceguera 	was 	apprehended, 	one 	of 	the 	officers
detected the odor of alcoholic beverages on oceguera’s breath
and observed that oceguera’s eyes were bloodshot. The offi-
cer asked oceguera to perform field sobriety test maneu-
vers, which showed impairment, and a preliminary breath test
showed a result of .159. oceguera refused a blood test and was
taken into custody.
oceguera was originally charged with one count of DuI,
fifth offense, and with seven other offenses. But pursuant to
a plea bargain, on February 10, 2010, oceguera was charged
with DuI, fourth offense, and operating a motor vehicle to
avoid arrest. The district court found that oceguera entered
his pleas knowingly and voluntarily and found him guilty of
both charges. oceguera was given a 90-day evaluation prior
to sentencing.
At the sentencing and enhancement hearing on May 26,
2010, the state offered three certified copies of prior convic-
tions. The district court found that those three exhibits were
valid prior convictions of DuI. In fact, the first exhibit was
a certified prior conviction for “operating [a] Motor Vehicle
During 15 Year revocation.” oceguera did not object to the use
of that exhibit to enhance his sentence.
The district court sentenced oceguera to 7 to 15 years’
imprisonment for DuI, fourth offense, and 20 to 60 months’
imprisonment for operating a motor vehicle to avoid arrest,
with the sentences to be served concurrently. The court also
ordered oceguera’s driver’s license to be revoked for a period
of 15 years, with the period of revocation to run concurrently
with his sentence for DuI.
oceguera appealed to the nebraska Court of Appeals.
Because he did not object to the use of the state’s first exhibit
before the district court, oceguera was limited to arguing
that the district court had committed plain error by using a
sTATe v. oCeguerA 	719
Cite as 281 neb. 717

prior conviction for driving under revocation to enhance his
sentence. The state agreed that the district court had erred,
and it filed a motion for remand, which the Court of Appeals
denied. The Court of Appeals then asked the state to address
in its brief the application of State v. Hense1 and State v.
Head2 to the present case. We subsequently moved the case to
our docket.
AssIgnMenTs oF error
oceguera assigns that the district court erred by (1) enhanc-
ing his DuI sentence to that of a fourth offense absent proof
of three prior DuI convictions, (2) failing to sentence him to
a term of probation, and (3) imposing an excessive sentence.
oceguera also argues that his trial counsel was ineffective
for failing to exercise reasonable due diligence, which failure
resulted in an improper plea bargain, plea, and enhancement.
sTAnDArD oF reVIeW
[1] When dispositive issues on appeal present questions
of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the
court below.3
AnAlYsIs
The primary issue in this case is whether we should remand
oceguera’s cause for sentencing on DuI, third offense, or
whether we should remand for a new enhancement hearing.
Because insufficient evidence existed to enhance oceguera’s
conviction to a fourth offense, the state urges us to remand
for another enhancement hearing in order to allow the state
to present sufficient evidence of the third prior conviction.
oceguera argues that we should remand for sentencing for
DuI, third offense.
As noted, the Court of Appeals asked the state to address
the application of Hense and Head to the present case. Both
1 State v. Hense, 276 neb. 313, 753 n.W.2d 832 (2008).
2 State v. Head, 276 neb. 354, 754 n.W.2d 612 (2008).
3 Head, supra note 2.
720 	281 neBrAsKA rePorTs

cases involved an appeal taken by a prosecuting attorney under
neb. rev. stat. §§ 29-2315.01 and 29-2316 (reissue 2008).
section 29-2315.01 provides in part:
The prosecuting attorney may take exception to any
ruling or decision of the court made during the prosecu-
tion of a cause by presenting to the trial court the appli-
cation for leave to docket an appeal with reference to the
rulings or decisions of which complaint is made. such
application shall contain a copy of the ruling or decision
complained of, the basis and reasons for objection thereto,
and a statement by the prosecuting attorney as to the part
of the record he or she proposes to present to the appel-
late court.
section 29-2316 states in part:
The judgment of the court in any action taken pursu-
ant to section 29-2315.01 shall not be reversed nor in
any manner affected when the defendant in the trial court
has been placed legally in jeopardy, but in such cases the
decision of the appellate court shall determine the law to
govern in any similar case which may be pending at the
time the decision is rendered or which may thereafter
arise in the state.
In Hense, the defendant pled guilty to the felony charge of
operating a motor vehicle while his license was revoked. The
district court sentenced the defendant to 2 years’ probation but
did not order a further revocation of his license as part of the
sentence. The state appealed, arguing that a 15-year revoca-
tion was mandatory under neb. rev. stat. § 60-6,197.06 (Cum.
supp. 2008). We found that the further revocation was manda-
tory, but because of the limitations set forth in §§ 29-2315.01
and 29-2316, we determined that jeopardy had attached and the
defendant could not be resentenced.4
In Head, the defendant pled guilty to DuI and the state
produced evidence of four prior convictions. The district court
rejected one of the prior convictions based on the defendant’s
argument that it was invalid. The state appealed. We held
4 Hense, supra note 1.
sTATe v. oCeguerA 	721
Cite as 281 neb. 717

that the defendant’s argument was an impermissible collateral
attack and that the prior conviction was valid for enhance-
ment purposes. But we also found that § 29-2316 precluded
a remand.5
The state argues that Hense and Head are inapplicable here
because those two cases involved the state’s taking exception
to a judgment of conviction and sentence. We agree. our analy-
sis of Hense and Head rested in large part on our interpretation
of §§ 29-2315.01 and 29-2316. specifically, we found that in
an appeal taken pursuant to § 29-2315.01, “‘[t]he judgment of
the court . . . shall not be reversed nor in any manner affected
when the defendant in the trial court has been placed legally
in jeopardy.’”6 We went on to note that our interpretation of
the language “placed legally in jeopardy” in § 29-2316 is more
stringent than the Double Jeopardy Clause of the federal con-
stitution, but we also stated that the analysis under § 29-2316
was not a double jeopardy analysis.7
[2,3] even if oceguera had raised a double jeopardy argu-
ment, which he did not, he would be unable to prevail. We rec-
ognized in Head that the Double Jeopardy Clause of the federal
Constitution “is not offended if an appellate court remands a
cause for resentencing.”8 The u.s. supreme Court has said that
a failure of proof at an enhancement hearing is not analogous
to an acquittal and that such a failure of proof does not trigger
double jeopardy protections.9 Therefore, neither our prior case
law, specifically Hense and Head, nor any federal constitu-
tional law prohibits a new enhancement hearing.
Having concluded that double jeopardy concerns are not
implicated here, we agree with the state that this case is
more analogous to those habitual criminal cases where we
have remanded for a new enhancement hearing. The state
5 Head, supra note 2.
6 Id. at 357, 754 n.W.2d at 614.
7 Id. see, also, State v. Vasquez, 271 neb. 906, 716 n.W.2d 443 (2006).
8 Head, supra note 2, 276 neb. at 357, 754 n.W.2d at 614.
9 Monge v. California, 524 u.s. 721, 118 s. Ct. 2246, 141 l. ed. 2d 615
(1998).
722 	281 neBrAsKA rePorTs

cites State v. King (King III),10 the last in a series of appeals
wherein the defendant’s cause was repeatedly remanded for
enhancement under the habitual criminal provision. The state
also points to an unpublished case, State v. Rose,11 involv-
ing three attempts at enhancing the defendant’s sentence as a
habitual criminal.
In State v. King (King I),12 the state attempted to enhance
the defendant’s sentence under neb. rev. stat. § 29-2221(2)
(reissue 1995). section 29-2221(2) (reissue 2008) requires
that after a defendant is convicted of a felony, a prosecut-
ing attorney seeking the habitual criminal enhancement must
submit evidence of two or more prior felony convictions. The
court is required to give notice to the defendant at least 3 days
in advance of the enhancement hearing. If the court finds suf-
ficient evidence of two prior convictions, the defendant is sen-
tenced as a habitual criminal.
In King I, we found the state had not met its burden to show
that the defendant had been convicted of two prior felonies and
that he had been represented by counsel at all critical stages for
those prior convictions. In State v. King (King II),13 the state
conceded that it had not presented sufficient evidence that the
defendant had been represented by counsel during all stages of
one prior conviction, and it asked this court to remand the cause
for a new enhancement hearing. And, in King III, the district
court had determined that the state failed to provide sufficient
evidence of two prior convictions.14 unlike the circumstances
of Hense and Head, wherein we determined that a change in
sentence is prohibited under § 29-2316,15 no such prohibition
exists where a defendant appeals from an alleged deficiency in
the prior convictions used for enhancement.
10 State v. King, 275 neb. 899, 750 n.W.2d 674 (2008).
11 State v. Rose, no. A-05-707, 2006 neb. App. leXIs 175 (neb. App. oct.
3, 2006) (not designated for permanent publication).
12 State v. King, 269 neb. 326, 693 n.W.2d 250 (2005).
13 State v. King, 272 neb. 638, 724 n.W.2d 80 (2006).
14 King III, supra note 10.
15 Hense, supra note 1; Head, supra note 2.
sTATe v. oCeguerA 	723
Cite as 281 neb. 717

We note that the procedure used for a habitual criminal
enhancement hearing is similar to the procedure for enhance-
ment of a DuI sentence. under neb. rev. stat. § 60-6,197.02(2)
(reissue 2010), the prosecutor is required to present court-
certified or authenticated copies of the defendant’s prior con-
victions for DuI. The prior convictions are to be produced
before sentencing, and the defendant is to be given the oppor-
tunity to review the record of his or her prior convictions, bring
mitigating facts to the attention of the court prior to sentencing,
and make objections on the record regarding the validity of
such prior convictions.
[4] We conclude that the use of prior convictions to enhance
a sentence for DuI is similar to the use of prior convictions
to enhance a sentence under our habitual criminal scheme, in
which evidence of prior convictions must be introduced.16 We
have not hesitated to remand for a new enhancement hearing
when the state has failed to produce sufficient evidence of
the requisite prior convictions for habitual criminal purposes.
The same procedure should be utilized here, because we are
not bound by the restrictions of § 29-2315.01 or § 29-2316 in
this case as we were in Hense and Head. Therefore, we vacate
oceguera’s sentence for DuI, fourth offense, and remand the
cause with directions for another enhancement hearing. Because
we are remanding the cause, we need not reach the remainder
of oceguera’s assignments of error.
ConClusIon
We find that the district court erred when it used a prior
conviction for driving under revocation to enhance oceguera’s
sentence for DuI. But because the limitations of §§ 29-2315.01
and 29-2316, which were applicable in Hense and Head, are
inapplicable here, we remand the cause with directions for
another enhancement hearing.
sentence vacated, and cause
Remanded with diRections.
wRight, J., not participating.
16 see State v. Hall, 268 neb. 91, 679 n.W.2d 760 (2004).
724 	281 neBrAsKA rePorTs