State v. Pereira

982 	284 NEBRASKA REPORTS
VI. CONCLUSION
We conclude that the Act covers illegal aliens under a con-
tract of hire with a covered employer in Nebraska. We also
conclude that the Act does not preclude an award of PTD ben-
efits for illegal aliens. Finally, we conclude that the trial judge
was not clearly wrong in finding that Moyera’s injury to his
foot had resulted in pain to his back that interfered with his
ability to perform the work he had previously performed. Thus,
the trial judge’s finding of permanent total disability was not
clearly wrong.
A ffirmed.
StAte of NebrASkA, Appellee, v.
WilliAm b. pereirA, AppellANt.
824 N.W.2d 706
Filed January 4, 2013. 	No. S-12-438.
1. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion by the
trial court.
2. Sentences: Words and Phrases. Allocution is an unsworn statement from a
convicted defendant to the sentencing judge in which the defendant can ask for
mercy, explain his or her conduct, apologize for the crime, or say anything else
in an effort to lessen the impending sentence.
3. Verdicts: Sentences. Before a sentence is pronounced, the defendant must be
informed by the court of the verdict and asked whether he or she has anything to
say why judgment should not be passed against him or her.
4. Constitutional Law: Evidence: Sentences. A defendant must be afforded a
forum and the right to question the constitutional propriety of the information
utilized by the sentencing judge, to present countervailing information, and to
test, question, or refute the relevance of information on which the judge may rely
in determining the sentence to be imposed.
5. Sentences. Allocution is an opportunity to address the court, not to speak to
spectators in attendance.
6. ____. The time of imposition of sentence is not a public forum to be used by
either a defendant or his or her attorney for that purpose.
7. Sentences: Waiver: Appeal and Error. Generally, where no objection is made at
a sentencing hearing when a defendant is provided an opportunity to do so, any
claimed error is waived and is not preserved for appellate review.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

STATE v. PEREIRA 	983
Cite as 284 Neb. 982
8. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
9. 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 amount of violence involved in the commission of the crime.
10. ____. 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.
11. 	Appeal and Error. A generalized and vague assignment of error that does
not advise an appellate court of the issue submitted for decision will not be
considered.
12. ____. An argument that does little more than to restate an assignment of error
does not support the assignment, and an appellate court will not address it.
Appeal from the District Court for Lancaster County: pAul
d. merritt, Jr., Judge. Affirmed.
James R. Mowbray and Robert W. Kortus, of Nebraska
Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, George R. Love, and Dain J.
Johnson, Senior Certified Law Student, for appellee.
H eAvicAN, c.J., WrigHt, coNNolly, StepHAN, mccormAck,
miller-lermAN, and cASSel, JJ.
cASSel, J.
INTRODUCTION
The district court convicted William B. Pereira of second
degree murder, pursuant to his plea of no contest, and imposed
a sentence of 50 years’ to life imprisonment. Because, viewed
in context, the district court merely required Pereira’s sen-
tencing comments to be addressed to the bench rather than to
spectators, we reject his contention that the court improperly
limited or denied his right of allocution. He also argues that
the court imposed an excessive sentence. Because we find no
abuse of discretion, we affirm.

984 	284 NEBRASKA REPORTS
BACKGROUND
On December 4, 2010, at approximately 5 a.m., Lincoln
police officers were sent to a disturbance call at an apartment.
The officers heard rhythmic pounding coming from the apart-
ment. They entered the apartment, headed to the bedroom from
where the noise was coming, and observed Pereira kneeling
next to Alissa Magoon and striking her head with an object.
Magoon was deceased, and an autopsy determined that she
died from blunt force trauma to the head.
In Pereira’s statements to police, he said that he was angry
with Magoon—an intimate partner—because he perceived that
she was being unfaithful to him. He began choking Magoon
and then hitting her with numerous objects found in the bed-
room. When the officers arrived, Pereira was using part of a
large picture frame to strike Magoon.
The State initially charged Pereira with first degree murder
and use of a deadly weapon to commit a felony. Pursuant to a
plea agreement, the State amended the information to charge
only second degree murder and Pereira pled no contest. The
district court subsequently sentenced Pereira to imprisonment
for 50 years to life. Pereira timely appeals.
STANDARD OF REVIEW
[1] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.1
ASSIGNMENTS OF ERROR
Pereira assigns, reordered, that the district court (1) erred or
abused its discretion by limiting or denying the right of allo-
cution and (2) abused its discretion by imposing an excessive
sentence. He also alleges a problem with the interpreter and the
translation during sentencing.
ANALYSIS
Claimed Denial of Allocution.
[2,3] Pereira asserts that the district court erred or abused
its discretion by limiting or denying his right to allocution.
1 State v. Ramirez, ante p. 697, 823 N.W.2d 193 (2012).

STATE v. PEREIRA 	985
Cite as 284 Neb. 982
“Allocution” is “[a]n unsworn statement from a convicted
defendant to the sentencing judge or jury in which the defend-
ant can ask for mercy, explain his or her conduct, apologize
for the crime, or say anything else in an effort to lessen the
impending sentence.”2 In Nebraska, allocution is statutorily
required by Neb. Rev. Stat. § 29-2201 (Reissue 2008), which
provides: “Before the sentence is pronounced, the defendant
must be informed by the court of the verdict . . . and asked
whether he [or she] has anything to say why judgment should
not be passed against him [or her].”
[4] The most practical rationale underlying allocution is that
it provides an opportunity for the offender and defense counsel
to contest any disputed factual basis for the sentence.3 As this
court stated in State v. Barker4:
[A] defendant must be afforded a forum and the right to
question the constitutional propriety of the information
utilized by the sentencing judge, to present countervailing
information, and to test, question, or refute the relevance
of information on which the judge may rely in determin-
ing the sentence to be imposed.
Pereira asserts in his brief that he “was unfairly denied a
fair opportunity to be heard and to express to the court com-
ments which could have mitigated his sentence.”5 He argues
that “[t]he relevant information which he was not permitted
to share went directly to the acceptance of responsibility and
the amenability to rehabilitation.”6 But Pereira does not tell
us what he would have said or how that might have changed
the sentence.
Before announcing the sentence, the district court asked
Pereira if he had any comments to make with respect to sen-
tencing. The following colloquy then occurred:
[Pereira]: I want to make an apology to her family.
2 Black’s Law Dictionary 88 (9th ed. 2009).
3 State v. Dethlefs, 239 Neb. 943, 479 N.W.2d 780 (1992).
4 State v. Barker, 231 Neb. 430, 436, 436 N.W.2d 520, 524 (1989).
5 Brief for appellant at 24.
6 Id.

986 	284 NEBRASKA REPORTS
THE COURT: Thank you, sir.
Are you ready for me to tell you what I am going
to do?
[Pereira]: Can I make an apology to them?
THE COURT: I thought you just did, sir.
I think that what you’ve said was — I don’t want you
speaking to people in the pews, no, sir.
Do you have any other comments you want to make?
[Pereira]: No, Your Honor.
THE COURT: Are you ready for me to tell you what
I’m going to do?
[Pereira]: Yes, Your Honor.
THE COURT: [Counsel for Pereira], are you aware
of any legal reason why I should not proceed with
sentencing?
[Counsel for Pereira]: No, Your Honor.
[5,6] The district court properly limited the right of allo-
cution to Pereira’s comments to the court. From the context
of the discussion that ensued, it appears that Pereira wished
to address an additional apology to Magoon’s family, which
the court declined to allow. We find no error in that regard.7
Allocution is an opportunity to address the court, not to
speak to spectators in attendance. “The time of imposition of
sentence is not a public forum to be used by either a defend-
ant or his [or her] attorney for that purpose.”8 The court
properly limited Pereira’s allocution to comments directed to
the court.
Pereira cites State v. Dunn9 in support of his argument that
he was denied allocution. In that case, the Nebraska Court
of Appeals determined that although the trial court literally
complied with the requirement of § 29-2201 by asking the
defendant if he had anything to say why judgment should not
be passed against him, the defendant was effectively denied his
right of allocution. In Dunn, the sentencing court first ignored
7 See State v. Brockman, 184 Neb. 435, 168 N.W.2d 367 (1969) (failure to
strictly comply with § 29-2201 was harmless error).
8 United States v. Mitchell, 392 F.2d 214, 216 (2d Cir. 1968).
9 State v. Dunn, 14 Neb. App. 144, 705 N.W.2d 246 (2005).

STATE v. PEREIRA 	987
Cite as 284 Neb. 982
defense counsel’s request for a presentence investigation, then
described its understanding of the facts of the case and cut
off defendant’s counsel on three occasions as counsel tried to
challenge the court’s recitation or to otherwise present further
information. The court finally imposed a jail sentence without
allowing the defendant or his counsel any opportunity to con-
test the court’s summary.
The situation in the instant case is far different from that
in Dunn.10 Pereira’s counsel submitted what he described as a
“rather lengthy” letter on the matter of sentencing and, at the
sentencing hearing, made supplemental comments consuming
nearly five pages in the bill of exceptions. Moreover, the dis-
trict court provided Pereira with an opportunity to speak prior
to being sentenced. A fair reading of the colloquy is that the
court felt that Pereira’s statement, “I want to make an apol-
ogy to her family,” was the extent of Pereira’s expression of
regret. That statement alone sufficiently apprised the court of
Pereira’s remorse. After the court declined to allow Pereira
to directly address members of Magoon’s family, the court
asked him if he had any other comments to make. He did not.
The court again verified that Pereira was finished by asking if
he was ready to be informed of the court’s sentence. Pereira
said that he was. We find no error in the court’s handling of
Pereira’s allocution.
[7] Moreover, neither Pereira nor his counsel alerted the
district court to any concern about the extent of allocution
permitted to him. After responding to Pereira’s question about
making a statement to members of Magoon’s family, the court
gave Pereira two additional opportunities to speak. He declined
both of them. The court then asked Pereira’s counsel if there
was any legal reason why the court should not proceed with
sentencing, and Pereira’s counsel answered that there was not.
If Pereira or his counsel felt that Pereira was indeed being
denied allocution, a timely objection would have alerted the
court to that fact. Instead, the court was left with the impres-
sion that there was nothing more to be said. Generally, where
no objection is made at a sentencing hearing when a defendant
10 Id.

988 	284 NEBRASKA REPORTS
is provided an opportunity to do so, any claimed error is
waived and is not preserved for appellate review.11 Because the
general rule has not been applied previously in the context of
allocution at sentencing, we have addressed the allocution issue
on its merits. In the future, however, we will apply the waiver
rule where a defendant fails to make an objection after having
the opportunity to do so.
Excessive Sentence.
Pereira argues that his sentence—particularly the life impris-
onment portion—is excessive. He contends that the sentence
was not tailored to fit him, that it placed undue reliance on
involuntary statements, and that it did not account for the plea
agreement reached by the parties.
[8] The district court convicted Pereira of a Class IB
felony, which carries a sentence of 20 years’ to life impris-
onment.12 The court sentenced Pereira to 50 years’ to life
imprisonment. Pereira’s sentence is within the statutory range.
Accordingly, we review the sentence for an abuse of discre-
tion.13 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.14
[9,10] 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 amount of violence involved in the com-
mission of the crime.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
11 State v. Svoboda, 13 Neb. App. 266, 690 N.W.2d 821 (2005).
12 See Neb. Rev. Stat. § 28-105(1) (Reissue 2008).
13 See State v. Ramirez, supra note 1.
14 Id.
15 Id.

STATE v. PEREIRA 	989
Cite as 284 Neb. 982
and all the facts and circumstances surrounding the defend-
ant’s life.16
The district court’s statements before announcing the sen-
tence demonstrate that it considered the pertinent factors. The
court noted that Pereira was 26 years old, that he was born
in El Salvador, and that he moved to New York City when
he was 16 years old to be reunited with his mother, who had
moved to the United States when Pereira was 8. Pereira’s
neighborhood in New York was full of gangs, and killings
were not uncommon. Pereira subsequently moved to Lincoln,
enrolled in Lincoln East High School, and began working
part-time jobs. He suffered a head injury in a car accident in
approximately 2004. He graduated from high school in 2005.
Although the court found Pereira to be competent to stand
trial, the court recognized that medical reports established
that Pereira had suffered and continues to suffer from a num-
ber of mental health issues. Pereira’s involvements with law
enforcement between 2005 and 2009 were primarily traffic
related, with the exception of a procuring alcohol charge. In
January 2010, he was cited after getting in a fight and break-
ing out several windows in a home. In August, he was charged
with third degree domestic assault and third degree assault.
The victim of the domestic assault was Magoon. Then, in
December, Pereira killed Magoon. In the hours prior to the
murder, Pereira and Magoon had smoked synthetic marijuana.
The court stated: “As a result of [Pereira’s] jealousness, and
that’s what I believe this is about, he savagely and repeatedly
beat . . . Magoon about the head with a piece of wood.” The
court noted that Magoon’s brain was exposed as a result of
the beating and stated that “[t]he terror the 19-year-old . . .
Magoon had to have experienced as a result of this punish-
ment being meted out on her by . . . Pereira is almost unimagi-
nable to me.”
Further, the presentence investigation report contained sev-
eral elevated evaluation scores. Pereira scored in the “high risk”
range for categories measuring “Leisure/Recreation,” “Alcohol/
16 Id.

990 	284 NEBRASKA REPORTS
Drug Problem,” and “Procriminal Attitude/Orientation.” He
scored in the “medium risk” range for categories measur-
ing “Criminal History,” “Family/Marital,” “Companions,” and
“Antisocial Pattern.”
The district court imposed a sentence within the statutory
range, and Pereira has failed to show that the court abused its
discretion in sentencing him.
Remaining Assignment of Error.
Pereira’s final assigned error is as follows: “Issues involv-
ing the use of interpreters at the sentencing proceeding below
have been identified but will require a further evidentiary
hearing. [Pereira] maintains that because of the manner in
which translation was conducted of the sentencing proceed-
ings from English to Spanish, he was unable to comprehend
the proceedings.”
[11] This allegation is purely conclusory. A generalized
and vague assignment of error that does not advise an appel-
late court of the issue submitted for decision will not be
considered.17 Regardless of the state of the record, Pereira’s
assignment fails to identify the alleged defect. This con-
clusory assignment fails to preserve any issue for appel-
late review.
[12] Pereira’s argument does not save the assignment.
His argument on the issue does not elaborate on the assign-
ment or otherwise support it with any facts. An argument
that does little more than to restate an assignment of error
does not support the assignment, and this court will not
address it.18
Further, Pereira concedes that the existing record is insuf-
ficient to address his claim. We agree that the record does not
address any matters regarding interpretation of a non-English
language. The insufficient record provides an additional reason
not to consider this assignment of error.
17 State ex rel. Wagner v. Gilbane Bldg. Co., 276 Neb. 686, 757 N.W.2d 194
(2008).
18 State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).

STATE v. PEREIRA 	991
Cite as 284 Neb. 982
CONCLUSION
We find no error by the district court with respect to
allocution or abuse of discretion with respect to sentencing.
Accordingly, we affirm the district court’s judgment.
A ffirmed.