State v. Parminter

State of NebraSka , appellaNt aNd croSS-appellee ,
v. William e. parmiNter , appellee
aNd croSS-appellaNt.
811 N.W.2d 694
Filed April 26, 2012. 	Nos. S-11-765, S-11-766.
1. Sentences: Appeal and Error. When reviewing a sentence within the statutory
limits, whether for leniency or excessiveness, an appellate court reviews for an
abuse of discretion.
2. 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.
3. Sentences. A sentencing court is not limited in its discretion to any mathemati-
cally applied set of factors.
4. ____. 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.
5. ____. A sentencing court must have some reasonable factual basis for imposing a
particular sentence.
6. Sentences: Appeal and Error. In determining whether a sentence is excessively
lenient, an appellate court considers the following factors: (1) the nature and cir-
cumstances of the offense; (2) the history and characteristics of the defendant; (3)
the need for the sentence imposed to afford deterrence; (4) the need for the sen-
tence to protect the public from further crimes of the defendant; (5) the need for
the sentence to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (6) the need for the sentence
to provide the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner; and (7) any
other matters appearing in the record that the appellate court deems pertinent.
7. ____: ____. If an appellate court determines that a sentence is excessively lenient,
it may set aside the sentence and do one of the following: (1) remand the cause
for imposition of a greater sentence; (2) remand the cause for further sentencing
proceedings; or (3) impose a greater sentence.
Appeals from the District Court for Lancaster County: robert
r. otte, Judge. Reversed and remanded with directions.
Joe Kelly, Lancaster County Attorney, Patrick F. Condon,
Daniel D. Packard, and James J. Krauer, Senior Certified Law
Student, for appellant.
Dennis R. Keefe, Lancaster County Public Defender, and
Shawn D. Elliott for appellee.
754 	283 NEbRASKA REPoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

H eavicaN, c.J., WrigHt, coNNolly, StepHaN, mccormack ,
and miller-lermaN, JJ.
coNNolly, J.
The State, through the Lancaster County Attorney, appeals
from a district court order sentencing William E. Parminter for
aggravated driving under the influence (DUI), third offense,
and DUI, fourth offense. The State argues that the sentences
were excessively lenient.1 because we conclude that the sen-
tences imposed by the district court fail to adequately protect
the public from Parminter, the district court’s sentences were
excessively lenient. We reverse, and remand with directions to
impose consecutive sentences of 5 to 5 years in prison.
bACKGRoUND
Shortly before noon on May 14, 2010, Lincoln police stopped
Parminter’s vehicle. Police had received a report that Parminter
was driving on a suspended license.
During the stop, the officer observed beer cans in Parminter’s
vehicle, many of which were open. In addition to seeing
open beer cans, the officer also smelled alcohol on Parminter.
Parminter had bloodshot, watery eyes, and the officer noticed
that his speech was slurred. Parminter admitted to the arrest-
ing officer that he had been drinking. After failing field sobri-
ety tests and a preliminary breath test, police arrested him.
A test revealed a breath alcohol content of .13 of a gram of
alcohol per 210 liters of breath. The State eventually filed an
information charging Parminter with DUI, fourth offense2;
driving under suspension before reinstatement3; and no proof
of insurance.4
on January 20, 2011, Parminter appeared in court on the
charges relating to his May 14, 2010, arrest. An arresting
officer from his prior DUI was scheduled to testify against
1 See Neb. Rev. Stat. § 29-2320 (Cum. Supp. 2010).
2 See, Neb. Rev. Stat. § 60-6,196 (Reissue 2010); Neb. Rev. Stat.
§ 60-6,197.03(7) (Supp. 2009).
3 See Neb. Rev. Stat. § 60-4,108 (Reissue 2004).
4 See Neb. Rev. Stat. § 60-3,167 (Reissue 2010).
STATE v. PARMINTER 	755
Cite as 283 Neb. 754

Parminter. before testifying, the officer became aware that
Parminter’s vehicle was parked on the street in front of the
courthouse. The officer ran a check on Parminter’s license and
learned that it had been “suspended and revoked.” After the
hearing, about 11:45 a.m., the officer watched Parminter exit
the courtroom by himself. He followed Parminter and saw him
get into the driver’s seat of his vehicle and drive away. The
officer followed Parminter, turned on his vehicle’s emergency
lights, and stopped Parminter. During the stop, the officer
detected a “strong odor of alcohol.” After placing Parminter
under arrest, the officer observed a cold, half-empty can of beer
in the cupholder of Parminter’s vehicle. The officer also saw
several empty cans of beer in the car and several full, unopened
cans of beer. A test showed Parminter’s breath alcohol content
to be .238 of a gram of alcohol per 210 liters of breath.
based on this second incident, the State filed an information
charging Parminter with aggravated DUI, third offense5; driv-
ing during revocation6; and no proof of insurance.7
Parminter eventually pleaded no contest to both DUI charges
in exchange for the State’s dropping the other charges. And
the State proved his prior DUI’s for enhancement. The court
sentenced Parminter to 12 to 18 months in prison on the DUI,
fourth offense. The court gave him credit for 212 days served.
on the aggravated DUI, third offense, the court sentenced
him to 12 to 24 months in prison. The court gave him credit
for 13 days served. The court ordered that he serve the sen-
tences concurrently.
ASSIGNMENTS oF ERRoR
In both cases, the State contends that the district court erred
in imposing an excessively lenient sentence on Parminter.
STANDARD oF REVIEW
[1,2] When reviewing a sentence within the statutory lim-
its, whether for leniency or excessiveness, an appellate court
5 See, § 60-6,196; § 60-6,197.03(6) (Reissue 2010).
6 See § 60-4,108 (Reissue 2010).
7 See § 60-3,167.
756 	283 NEbRASKA REPoRTS

reviews for an abuse of discretion.8 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 sub-
stantial right and denying a just result in matters submitted
for disposition.9
ANALYSIS
both of the offenses to which Parminter pleaded no con-
test—DUI, fourth offense, and aggravated DUI, third offense—
are Class IIIA felonies. Class IIIA felonies generally do not
have a minimum sentence.10 but the specific DUI statutes under
which the court sentenced Parminter require that Parminter
serve at least 180 days in jail.11 The maximum sentence for a
Class IIIA felony is 5 years in prison, a $10,000 fine, or both.12
Parminter’s sentences of 12 to 18 months and 12 to 24 months
are within these statutory limits. So we review them for an
abuse of discretion.13
[3-5] A sentencing court is not limited in its discretion to
any mathematically applied set of factors.14 The appropriate-
ness of a sentence is necessarily a subjective judgment and
includes the sentencing judge’s observation of the defend-
ant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life.15 but the court must
have some reasonable factual basis for imposing a particu-
lar sentence.16
[6] In determining whether the sentence is excessively
lenient, we consider the following factors: (1) the nature and
circumstances of the offense; (2) the history and characteristics
8 See State v. Moore, 274 Neb. 790, 743 N.W.2d 375 (2008).
9 Id.
10 Neb. Rev. Stat. § 28-105 (Reissue 2008).
11 See § 60-6,197.03(6).
12 § 28-105.
13 See Moore, supra note 8.
14 State v. Fields, 268 Neb. 850, 688 N.W.2d 878 (2004).
15 Id.
16 See id.
STATE v. PARMINTER 	757
Cite as 283 Neb. 754

of the defendant; (3) the need for the sentence imposed to
afford deterrence; (4) the need for the sentence to protect the
public from further crimes of the defendant; (5) the need for
the sentence to reflect the seriousness of the offense, to pro-
mote respect for the law, and to provide just punishment for the
offense; (6) the need for the sentence to provide the defendant
with needed educational or vocational training, medical care, or
other correctional treatment in the most effective manner; and
(7) any other matters appearing in the record that the appellate
court deems pertinent.17
The presentence investigation reveals that Parminter has
fought a long battle with alcoholism. Parminter, who was 55
at the time of sentencing, reported that he began drinking in
his mid- to late teens. over the years, his dependence on alco-
hol worsened. He reported that beginning in his thirties, he
would drink a 12-pack of beer and some whiskey every day.
He reported that even after his May 14, 2010, arrest, he was
drinking to the point of intoxication daily, even though he was
out on bond under an order that specifically forbade him from
consuming alcohol. Further, he reported that he was still crav-
ing alcohol as late as April 2011.
Parminter’s affliction with the drink has led to multiple
DUI charges. In fact, it appears that the current charges are
his eighth and ninth charges for DUI. In a substance abuse
evaluation completed in 2006, Parminter estimated that he
had driven under the influence “‘maybe’ 100 or more times.”
Equally unsettling, in 2004, police arrested Parminter twice
for DUI—in April and again in May. The presentence report
shows that both charges were resolved in February 2006.
So, the current case represents the second instance in which
Parminter has been arrested for DUI while currently on trial
for another DUI.
Commendably, Parminter has tried several times to conquer
his addiction—unfortunately, his successes have been short
lived. Although he may achieve some measure of temporary
success, he has always relapsed and fallen into his old (and
17 See, Neb. Rev. Stat. § 29-2322 (Reissue 2008); State v. Rice, 269 Neb.
717, 695 N.W.2d 418 (2005).
758 	283 NEbRASKA REPoRTS

dangerous) habits. As Parminter himself said, “‘[i]t seems
every four years I get a DUI. I’ll be sober for four years, and
then something happens.’”
Parminter does seem to have a desire to get treatment. In the
proceedings before the trial court, he unsuccessfully moved for
a pretrial release so that he could go into inpatient treatment.
The record also reflects other attempts at treatment, including
several stays at inpatient facilities.
Applying several of the factors in § 29-2322, we believe the
trial court’s sentences were excessively lenient. In both cases,
Parminter was driving drunk without a valid license around
noon. In the second case, an officer arrested him leaving a
hearing for a prior charge of DUI without a valid license.
In that case, his breath alcohol content was nearly three
times the legal limit. Moreover, these are Parminter’s eighth
and ninth charges for DUI. by providence or dumb luck,
Parminter has escaped maiming or killing an innocent per-
son. Prior punishments have fallen on deaf ears. Parminter’s
repeated serious offenses demand a stiff punishment. Further,
Parminter is a risk to the public’s safety. And “protection of
the public requires certainty, not chance, and the only cer-
tainty we can perceive is that [Parminter] cannot drink and
drive while incarcerated.”18
[7] If we determine that a sentence is excessively lenient,
we may set aside the sentence and do one of the following:
(1) remand the cause for imposition of a greater sentence; (2)
remand the cause for further sentencing proceedings; or (3)
impose a greater sentence.19 We choose to impose consecutive
sentences of 5 to 5 years.
We note that Parminter also cross-appealed, claiming that
the district court erred in calculating his credit for time served.
but because Parminter’s cross-appeal assigned error as to how
credit was calculated on concurrent sentences and we are now
imposing consecutive sentences, it is not necessary for us to
address his cross-appeal.
18 Rice, supra note 17, 269 Neb. at 724, 695 N.W.2d at 424.
19 Neb. Rev. Stat. § 29-2323 (Reissue 2008).
STATE v. PARMINTER 	759
Cite as 283 Neb. 754

CoNCLUSIoN
We conclude that the district court abused its discretion in
imposing an excessively lenient sentences on Parminter. We
reverse, and remand with directions to resentence Parminter
to consecutive terms of 5 to 5 years. The district court must
also revoke Parminter’s license according to the applicable
statutes.20 Finally, the court must give Parminter credit for the
time he has already served.21 We leave it to the district court to
determine the credit to Parminter for the time served.
reverSed aNd remaNded WitH directioNS.
20 See § 60-6,197.03(6) and (7).
21 See Neb. Rev. Stat. § 83-1,106 (Reissue 2008). See, also, Neb. Rev. Stat.
§ 29-2324 (Reissue 2008).
William SellerS, appellaNt, v.
reefer SyStemS, iNc., appellee .
811 N.W.2d 293
Filed April 26, 2012. 	No. S-11-909.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ Compensation Court may be modified, reversed, or set aside only
upon the grounds that (1) the compensation court acted without or in excess of its
powers; (2) the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the order,
judgment, or award; or (4) the findings of fact by the compensation court do not
support the order or award.
2. Workers’ Compensation: Stipulations. before an order for future medical ben-
efits may be entered, there should be a stipulation of the parties or evidence in the
record to support a determination that future medical treatment will be reasonably
necessary to relieve the injured worker from the effects of the work-related injury
or occupational disease.
Appeal from the Workers’ Compensation Court. Affirmed.
Joel D. Nelson, of Keating, o’Gara, Nedved & Peter, P.C.,
L.L.o., for appellant.
Sonya K. Koperski, of Leininger, Smith, Johnson, baack,
Placzek & Allen, for appellee.
760 	283 NEbRASKA REPoRTS