State v. Kinser

CONCLUSION
The district court erred in not permitting DHHS to recover
the full amount of its counterclaim, to be satisfied from the
funds withheld from the settlement proceeds pursuant to the
stipulation of the parties. The judgment of the district court is
reversed, and the cause is remanded with directions to enter
judgment in accordance with this opinion. Because DHHS
is entitled to the full amount of its counterclaim, Smalley’s
assignments of error on cross-appeal need not be addressed.
R eveRsed and Remanded with diRections.
G eRRaRd, J., not participating in the decision.
wRiGht, J., not participating.
state of nebRaska , appellee , v.
william d. kinseR, JR., appellant.
811 N.W.2d 227
Filed March 23, 2012. 	No. S-11-558.
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: Prior Convictions: Habitual Criminals: Proof. In a habitual crimi-
nal proceeding, the State’s evidence must establish with requisite trustworthiness,
based upon a preponderance of the evidence, that (1) the defendant has been
twice convicted of a crime, for which he or she was sentenced and committed to
prison for not less than 1 year; (2) the trial court rendered a judgment of convic-
tion for each crime; and (3) at the time of the prior conviction and sentencing, the
defendant was represented by counsel or had knowingly and voluntarily waived
representation for those proceedings.
Appeal from the District Court for Scotts Bluff County:
R andall l. lippstReu, Judge. Affirmed.
Brian J. Lockwood and Richard L. DeForge, Deputy Scotts
Bluff County Public Defenders, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
560 	283 NeBRASKA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

heavican, c.J., wRiGht, connolly, stephan, mccoRmack ,
and milleR-leRman, JJ.
stephan, J.
NATURe OF CASe
A jury found William D. Kinser, Jr., guilty of felony flight to
avoid arrest. After finding that Kinser had five previous felony
convictions, the district court for Scotts Bluff County found
Kinser to be a habitual criminal and sentenced him to a term
of not less than 18 nor more than 30 years’ imprisonment with
the Nebraska Department of Correctional Services (DCS) for
that crime. Kinser contends that the habitual criminal determi-
nation was erroneous because the flight to avoid arrest convic-
tion was enhanced from a misdemeanor to a felony based upon
Kinser’s willful reckless operation of a motor vehicle and that
any further enhancement under the habitual criminal statute
would result in an improper double enhancement. Kinser also
argues that the sentencing order must be reversed because the
district court intended for him to be eligible for parole after
10 years, whereas, under the sentence imposed for his flight
to avoid arrest conviction, he will not be eligible for parole
for 14 years. We find no merit to either contention and there-
fore affirm.
BACKGROUND
On the evening of December 23, 2010, Deputy Lanny Hanks
was observing traffic on Lake Minatare Road in Scotts Bluff
County, Nebraska. He saw a vehicle exceeding the speed limit
and undertook pursuit. Hanks initially activated only his patrol
car’s overhead lights, but when he realized the vehicle was not
stopping, he activated his car’s siren. After a chase of approxi-
mately 10 miles, Hanks was able to immobilize the vehicle.
Kinser was identified as the operator of the vehicle.
The State charged Kinser with felony operation of a motor
vehicle to avoid arrest; driving under revocation, first offense;
and driving while under the influence of alcohol (DUI), second
offense. The State alleged that Kinser’s flight to avoid arrest
involved willful reckless operation of a motor vehicle, which
made the offense a Class IV felony under Neb. Rev. Stat.
STATe v. KINSeR 	561
Cite as 283 Neb. 560

§ 28-905(3)(a)(iii) (Reissue 2008). The State also alleged that
Kinser was a habitual criminal under Neb. Rev. Stat. § 29-2221
(Reissue 2008). A jury trial was held on the flight to avoid
arrest and driving under revocation charges. The jury found
Kinser guilty of both offenses.
Prior to sentencing, the State notified Kinser and the court
that it would present evidence that Kinser was a habitual crimi-
nal. At the hearing, the State introduced five prior convictions:
(1) a 1983 conviction for burglary, (2) a 1993 conviction for
failure to appear, (3) a 1993 conviction for theft, (4) a 1995
conviction for second degree assault, and (5) a 1995 convic-
tion for assault on a police officer in the third degree. Certified
records showed that Kinser received a sentence of at least 1
year’s imprisonment for each of these convictions and that
Kinser was represented by counsel at the time of each convic-
tion and each sentencing.
The trial court considered and rejected Kinser’s argument
that a habitual criminal enhancement would result in an imper-
missible double enhancement. The court noted that the flight to
avoid arrest conviction was a felony because of the additional
element of willful reckless operation of a motor vehicle and
that the increase from a misdemeanor to a felony was not based
on prior convictions for the same offense. The court also noted
that this was somewhat similar to being charged with a felony
that had a misdemeanor lesser-included offense. The court
stated, “You would have to commit the misdemeanor lesser
included, then something in addition to that to get the felony
status and those have been used in the past for purposes of [a
habitual criminal] enhancement . . . .” The court found there
were five valid and usable prior convictions and sentenced
Kinser as a habitual criminal on the felony flight to avoid arrest
conviction. During sentencing, the court stated:
[Kinser] will . . . be sentenced to serve sentences in an
institution under the jurisdiction of [DCS] as follows:
On Count II [driving under revocation], which is the
misdemeanor, six months, and there’s a one year revoca-
tion of his license. On Count I [fleeing to avoid arrest],
which is the felony, not less than 18 years and not more
than 30 years. The minimum will include the mandatory
562 	283 NeBRASKA RePORTS

minimum of 10 years with a two-year revocation of his
license. Those sentences will be served concurrent. I give
him credit for 190 days that he has served.
Kinser filed a timely notice of appeal.
ASSIGNMeNTS OF eRROR
Kinser assigns the district court erred in sentencing him as a
habitual criminal and in imposing an erroneous sentence for his
flight to avoid arrest conviction.
STANDARD OF ReVIeW
[1,2] 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.1 A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the
trial court.2
ANALYSIS
kinseR was pRopeRly sentenced
as habitual cRiminal
[3] Subject to exceptions not applicable to this case, the
habitual criminal statute in part provides:
Whoever has been twice convicted of a crime, sentenced,
and committed to prison, in this or any other state or by
the United States or once in this state and once at least
in any other state or by the United States, for terms of
not less than one year each shall, upon conviction of a
felony committed in this state, be deemed to be a habitual
criminal and shall be punished by imprisonment . . . for
a mandatory minimum term of ten years and a maximum
term of not more than sixty years . . . .3
In a habitual criminal proceeding, the State’s evidence must
establish with requisite trustworthiness, based upon a prepon-
derance of the evidence, that (1) the defendant has been twice
1 State v. Jimenez, ante p. 95, 808 N.W.2d 352 (2012).
2 State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).
3 § 29-2221(1).
STATe v. KINSeR 	563
Cite as 283 Neb. 560

convicted of a crime, for which he or she was sentenced and
committed to prison for not less than 1 year; (2) the trial court
rendered a judgment of conviction for each crime; and (3) at
the time of the prior conviction and sentencing, the defendant
was represented by counsel or had knowingly and voluntarily
waived representation for those proceedings.4 The district court
concluded that there were five valid and usable convictions for
purposes of the habitual criminal enhancement. Kinser does
not challenge this conclusion, which is fully supported by the
record. Instead, Kinser argues that using his felony flight to
avoid arrest conviction to trigger a habitual criminal enhance-
ment would result in an improper double enhancement.
Felony flight to avoid arrest is criminalized under § 28-905,
which in relevant part provides:
(1) Any person who operates any motor vehicle to flee
in such vehicle in an effort to avoid arrest or citation
commits the offense of operation of a motor vehicle to
avoid arrest.
(2)(a) except as otherwise provided in subsection (3)
of this section, any person who violates subsection (1) of
this section shall be guilty of a Class I misdemeanor.
. . . .
(3)(a) Any person who violates subsection (1) of this
section shall be guilty of a Class IV felony if, in addition
to the violation of subsection (1) of this section, one or
more of the following also applies:
(i) The person committing the offense has previously
been convicted under this section;
(ii) The flight to avoid arrest results directly and proxi-
mately in the death of or injury to any person if such
death or injury is caused directly and proximately by
the vehicle being driven by the person fleeing to avoid
arrest; or
(iii) The flight to avoid arrest includes the willful reck-
less operation of the motor vehicle.
Kinser 	was 	convicted 	of 	a 	Class 	IV 	felony 	under
§ 28-905(3)(a)(iii), based on his willful reckless operation of
4 State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
564 	283 NeBRASKA RePORTS

the vehicle during the flight to avoid arrest. Kinser argues
he was improperly sentenced as a habitual criminal because
the “enhancement” from a misdemeanor to a felony under
§ 28-905(3)(a)(iii) plus the habitual criminal enhancement
results in an impermissible double enhancement under this
court’s holding in State v. Chapman.5 evaluating this argument
requires a discussion of Chapman and its progeny.
The defendant in Chapman was convicted of third-offense
DUI. He was sentenced as a habitual criminal under § 29-2221
then in effect based upon his prior felony convictions for
malicious destruction of property and third-offense DUI. This
court concluded the district court erred in sentencing him as
a habitual criminal. We reasoned that his prior conviction for
third-offense DUI was not a prior felony for purposes of a
habitual criminal enhancement because the offense became
a felony solely due to his prior DUI convictions. The statute
prohibiting third-offense DUI in relevant part provided, “[I]f
such conviction is for a third offense, or subsequent offense
thereafter, such person shall be imprisoned . . . for not less
than one year nor more than three years . . . .”6 After noting
a reluctance “to apply an expansive reading to the Habitual
Criminal Act,” this court held in Chapman that “offenses
which are felonies because the defendant has been previ-
ously convicted of the same crime do not constitute ‘felonies’
within the meaning of prior felonies that enhance penalties
under the habitual criminal statute.”7 We noted the language
of the statute evidenced a legislative intent that “convictions
for third offense and all subsequent offenses . . . should be
treated similarly”8 and that the “weight of authority [was]
against double penalty enhancement through application of
both a specific subsequent offense statute and a habitual
criminal statute.”9
5 State v. Chapman, 205 Neb. 368, 287 N.W.2d 697 (1980).
6 Neb. Rev. Stat. § 39-669.07(3) (Reissue 1974). See State v. Chapman,
supra note 5.
7 State v. Chapman, supra note 5, 205 Neb. at 370, 287 N.W.2d at 698.
8 Id. at 371, 287 N.W.2d at 699.
9 Id. at 370, 287 N.W.2d at 699.
STATe v. KINSeR 	565
Cite as 283 Neb. 560

This court later extended the Chapman holding in State v.
Hittle.10 The defendant in that case was convicted of felony
flight to avoid arrest and felony driving under a 15-year license
suspension. Based on a prior conviction for operating a motor
vehicle with a suspended or revoked license and convictions
from a single proceeding for possessing a stolen firearm and a
controlled substance, he was sentenced as a habitual criminal.
The statute criminalizing driving under a revoked license at the
time of his offenses, Neb. Rev. Stat. § 60-6,196(6) (Reissue
1993), provided, “Any person operating a motor vehicle on
the highways or streets of this state while his or her operator’s
license has been revoked pursuant to subdivision (2)(c) of this
section [after two previous DUI convictions] shall be guilty
of a Class IV felony.” On appeal, this court acknowledged
that Chapman was distinguishable because a conviction under
§ 60-6,196(6) was a felony whether or not the defendant was
previously convicted of the same offense. But we stated that
Chapman rested upon two general principles:
(1) A defendant should not be subjected to double pen-
alty enhancement through application of both a specific
subsequent offense statute and a habitual criminal statute
and (2) the specific enhancement mechanism contained
in Nebraska’s DUI statutes precludes application of the
general enhancement provisions set forth in the habitual
criminal statute.11
We reasoned that driving under a revoked license was crimi-
nalized under the same statutory scheme as DUI and that a
person could become a felon for driving under a suspended
license only by first committing multiple DUI offenses. Thus,
we observed that the penalty for driving under a revoked
license was “enhanced by virtue of the defendant’s prior viola-
tions of other provisions within the same statute.”12 Based on
this reasoning, we held that a conviction under § 60-6,196(6)
could not be used as either the offense triggering a habitual
10 State v. Hittle, 257 Neb. 344, 598 N.W.2d 20 (1999).
11 Id. at 355, 598 N.W.2d at 29.
12 Id. at 356, 598 N.W.2d at 29.
566 	283 NeBRASKA RePORTS

criminal 	enhancement 	or 	a 	prior 	felony 	for 	purposes 	of
the enhancement.
This court next considered the holdings of Chapman and
Hittle in State v. Taylor.13 The defendant in that case was
convicted of third degree assault on an officer under Neb.
Rev. Stat. § 28-931 (Reissue 1995), which at the time of the
offense, provided:
(1) A person commits the offense of assault on an
officer in the third degree if he or she intentionally,
knowingly, or recklessly causes bodily injury to a peace
officer or employee of [DCS] while such officer or
employee is engaged in the performance of his or her
official duties.
(2) Assault on an officer in the third degree shall be a
Class IV felony.
That felony conviction served as the trigger for a habitual crim-
inal enhancement. On appeal, the defendant argued he should
not have been convicted under § 28-931 and sentenced as a
habitual criminal under § 29-2221 because that resulted in an
improper double enhancement. He contended that third degree
assault under Neb. Rev. Stat. § 28-310 (Reissue 2008) was a
misdemeanor and that his conviction was enhanced to a felony
based on the status of his victim, a DCS employee.
After noting that the defendant’s argument presented “a
question of statutory interpretation as to whether the Legislature
enacted § 28-931 as a ‘specific subsequent offense statute’ for
general third degree assault, or as a separate crime,”14 this court
rejected the defendant’s argument “because § 28-931 [was] not
a specific subsequent offense statute.”15 We explained:
Nothing contained in the plain language of § 28-931
enhances the penalties for third degree assault upon a
DCS employee based on subsequent offenses. A com-
parison of the plain language of §§ 28-310 and 28-931
indicates that the Legislature enacted these statutes to
13 State v. Taylor, 262 Neb. 639, 634 N.W.2d 744 (2001).
14 Id. at 647, 634 N.W.2d at 750.
15 Id. at 647, 634 N.W.2d at 751.
STATe v. KINSeR 	567
Cite as 283 Neb. 560

punish two separate and distinct crimes with separate and
distinct elements. Under § 28-931, the status of the victim
is an element of the crime and is not a subsequent offense
penalty enhancement.16
The same reasoning applies to this case, despite the fact
that misdemeanor and felony flight to avoid arrest are defined
in the same statute. Section 28-905(3)(a)(iii) is not a specific
subsequent offense statute. Reading § 28-905 as a whole, the
offense of flight to avoid arrest is a misdemeanor if it involves
fleeing in a motor vehicle in an effort to avoid arrest, whereas
the offense becomes a felony under § 28-905(3)(a)(iii) if the
State alleges and proves the additional element of willful reck-
less operation of a motor vehicle. This additional fact pertains
to the manner in which the offense was committed, and not to
prior criminal conduct. Thus, Kinser was not subjected to an
impermissible double enhancement and the district court did
not err in sentencing him as a habitual criminal. We express no
opinion as to whether the result would be the same if Kinser
had been convicted of felony flight to avoid arrest under
§ 28-905(3)(a)(i), as that issue is not presented in this case.
distRict couRt did not impose
eRRoneous sentence
Kinser argues that the sentencing order must be reversed
as erroneous because of a discrepancy between the sentence
imposed for his flight to avoid arrest conviction and the court’s
statements at the sentencing hearing regarding his eligibil-
ity for parole. Relying upon the following statement, Kinser
asserts the trial court intended for him to be parole eligible
after 10 years:
So the defendant will be sentenced to serve an indeter-
minate or terms — let me rephrase that because we have
a mandatory minimum. He’ll be sentenced to serve sen-
tences in an institution under the jurisdiction of [DCS] as
follows: On Count II [driving under revocation], which is
the misdemeanor, six months, and there’s a one year revo-
cation of his license. On Count I [fleeing to avoid arrest],
16 Id.
568 	283 NeBRASKA RePORTS

which is the felony, not less than 18 years and not more
than 30 years. The minimum will include the mandatory
minimum of 10 years with a two-year revocation of his
license. Those sentences will be served concurrent. I give
him credit for 190 days that he has served. Costs will be
taxed to the defendant. He will not be parole eligible until
he has served the mandatory minimum of 10 and [DCS]
can indicate the time period but he will be eligible for
parole. I’ll revoke his bond and remand him then back
to custody.
The State argues this language fails to show “an intention that
Kinser be parole eligible in 10 years.”17 It contends that the
district court expressly left the issue of parole eligibility to
DCS, but informed Kinser that he would serve the mandatory
minimum of 10 years.
Subject to an exception not applicable here, in imposing an
indeterminate sentence upon an offender, a court is required by
Neb. Rev. Stat. § 29-2204 (Reissue 2008) to “[f]ix the mini-
mum and maximum limits of the sentence,”18 to “[a]dvise the
offender on the record the time the offender will serve on his
or her minimum term before attaining parole eligibility assum-
ing that no good time for which the offender will be eligible
is lost,”19 and to “[a]dvise the offender on the record the time
the offender will serve on his or her maximum term before
attaining mandatory release assuming that no good time for
which the offender will be eligible is lost.”20 We agree with the
State that the sentencing court did not clearly state that Kinser
would be eligible for parole after serving 10 years. But even if
it had, the question would be resolved by § 29-2204(1), which
provides, “If any discrepancy exists between the statement of
the minimum limit of the sentence and the statement of parole
eligibility . . . the statement[] of the minimum limit . . . shall
control the calculation of the offender’s term.”
17 Brief for appellee at 13.
18 § 29-2204(1)(a)(ii)(A).
19 § 29-2204(1)(b).
20 § 29-2204(1)(c).
STATe v. KINSeR 	569
Cite as 283 Neb. 560

Although this court has not had occasion to apply this pro-
vision, the opinion of the Nebraska Court of Appeals in State
v. Glover21 is instructive. The defendant in that case argued
for a reduction in her sentence or, alternatively, for a resen-
tencing, based on an incorrect statement made by the district
court at sentencing. The trial judge sentenced her to a term
of 21 to 30 months’ imprisonment, but stated that on the low
end, she would serve about 9 months. The Court of Appeals
acknowledged the trial court’s misstatement, explaining that
assuming no loss of good time, the defendant would serve
101⁄2 months before becoming eligible for parole. However,
the court rejected her argument, reasoning that under the plain
language of § 29-2204(1), the minimum sentence of 21 months
controlled the calculation of her term, which determined her
parole eligibility.
We agree with the Court of Appeals’ interpretation and appli-
cation of § 29-2204(1) in Glover. In this case, any discrepancy
between the minimum sentence of 18 years for Kinser’s flight
to avoid arrest conviction and the statements of the sentencing
court regarding parole eligibility would be controlled by the
former. Under our holding in Johnson v. Kenney,22 good time
credit would not reduce the 10-year mandatory minimum por-
tion of Kinser’s sentence for that crime. Thus, assuming no loss
of good time credit, Kinser would serve the 10-year mandatory
minimum plus 4 of the remaining 8 years of the minimum
sentence, less credit for time served, before becoming eligible
for parole.23
CONCLUSION
For the reasons discussed, Kinser was properly sentenced
as a habitual criminal and the sentence imposed for his flight
to avoid arrest conviction was not erroneous. The judgment
is affirmed.
affiRmed.
wRiGht, J., not participating in the decision.
21 State v. Glover, 3 Neb. App. 932, 535 N.W.2d 724 (1995).
22 Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (2002).
23 See Neb. Rev. Stat. §§ 83-1,107 (Supp. 2011) and 83-1,110 (Reissue
2008).
570 	283 NeBRASKA RePORTS