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01/06/2017 09:08 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. ARIZOLA
Cite as 295 Neb. 477
State of Nebraska, appellee, v.
Felix A rizola, appellant.
___ N.W.2d ___
Filed January 6, 2017. No. S-16-077.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment pro-
tection is a question of law that an appellate court reviews independently
of the trial court’s determination.
2. Trial: Investigative Stops: Warrantless Searches: Appeal and Error.
The ultimate determinations of reasonable suspicion to conduct an
investigatory stop and probable cause to perform a warrantless search
are reviewed de novo, and findings of fact are reviewed for clear error,
giving due weight to the inferences drawn from those facts by the
trial judge.
3. Pleadings. Issues regarding the grant or denial of a plea in bar are ques-
tions of law.
4. Judgments: Appeal and Error. On a question of law, an appellate court
reaches a conclusion independent of the court below.
5. Judgments: Pleadings: Appeal and Error. Regarding questions of
law presented by a motion to quash, an appellate court is obligated to
reach a conclusion independent of the determinations reached by the
trial court.
6. Constitutional Law: Statutes: Judgments: Appeal and Error. The
constitutionality and construction of a statute are questions of law,
regarding which an appellate court is obligated to reach conclusions
independent of those reached by the court below.
7. Constitutional Law: Statutes: Pleadings. When a statute is utilized
by the court in sentencing a defendant, the defendant is not required
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STATE v. ARIZOLA
Cite as 295 Neb. 477
to challenge the constitutionality of this statute in his or her motion
to quash.
8. Constitutional Law: Criminal Law: Statutes. The void-for-vagueness
doctrine requires that a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct
is prohibited and in a manner that does not encourage arbitrary and dis-
criminatory enforcement.
9. Judgments: Statutes: Appeal and Error. Statutory language is to be
given its plain and ordinary meaning, and an appellate court will not
resort to interpretation to ascertain the meaning of statutory words which
are plain, direct, and unambiguous.
10. Constitutional Law: Statutes. The test for determining whether a stat-
ute is vague is whether it forbids or requires the doing of an act in terms
so vague that persons of common intelligence must necessarily guess at
its meaning and may differ as to its application.
11. ____: ____. A statute will not be deemed vague if it uses ordinary terms
which find adequate interpretation in common usage and understanding.
12. Due Process. The Due Process Clause applies when government action
deprives a person of liberty or property; accordingly, when there is a
claimed denial of due process, a court must consider the nature of the
individual’s claimed interest.
13. Criminal Law: Due Process: Notice. In the context of criminal pro-
ceedings, due process generally requires the defendant be given notice
and an adequate opportunity to defend himself or herself.
14. Sentences: Due Process. Due process requires that a sentencing judge
have relevant information as the basis for a sentence imposed on a con-
victed defendant.
15. Sentences: Evidence. In a sentencing hearing, a court generally has
broad discretion concerning the source of information and the type of
information to be considered.
16. Sentences: Evidence: Presentence Reports. A sentencing judge may
consider relevant information contained in a presentence report on the
defendant to determine an appropriate sentence within the statutorily
authorized penalty, punishment, or disposition applicable to the crime
for which the defendant has been convicted.
17. Prior Convictions: Records. A certified or duly authenticated copy of
the former judgment, from any court in which such judgment was had,
for any of such crimes formerly committed by the party so charged,
shall be competent and prima facie evidence of such former judgment.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. ARIZOLA
Cite as 295 Neb. 477
Joe Nigro, Lancaster County Public Defender, and Nathan
Sohriakoff for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, K elch,
and Funke, JJ., and Inbody, Judge.
Heavican, C.J.
I. INTRODUCTION
Felix Arizola was found guilty of refusal of a chemical test,
with two prior convictions, a Class IIIA felony under Neb.
Rev. Stat. §§ 60-6,197 (Cum. Supp. 2016) and 60-6,197.03(6)
(Cum. Supp. 2014). Arizola filed various pretrial and posttrial
motions, including a motion to suppress, a motion to quash, a
motion for plea in abatement, a second motion to quash, and a
motion for plea in bar. All were denied.
The primary issues on appeal are Arizola’s contention that
the traffic stop was conducted without reasonable suspicion
and hence should be suppressed and that Neb. Rev. Stat.
§ 60-6,197.09 (Cum. Supp. 2016) and related statutes are
unconstitutional because they are void for vagueness. Arizola
also argues that he was denied due process when he was denied
probation under § 60-6,197.09, because the lower court failed
to give him a meaningful opportunity to challenge whether he
committed another driving under the influence (DUI) offense
for which he was participating in criminal proceedings when
the present violation was committed. This appeal is a compan-
ion case to State v. Wagner.1 We affirm.
II. BACKGROUND
1. Initial Stop
On June 18, 2014, at approximately 11:46 p.m., Officer
Joseph Villamonte of the Lincoln Police Department observed
1
State v. Wagner, ante p. 132, ___ N.W.2d ___ (2016).
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STATE v. ARIZOLA
Cite as 295 Neb. 477
a vehicle driving westbound in the 3600 block of Adams
Street. Villamonte ran the license plate number through the
police department’s information system to check for suspen-
sion or warrants. The license plate was registered to Arizola,
who had been cited while driving the vehicle in 2013. The
police report did not indicate the reason for this citation, but
the record otherwise shows that Arizola was cited in 2013 for
improper registration and for violating the speed limit. The
system also indicated that Arizola’s operator’s license had
been revoked. Villamonte testified that he pulled his cruiser
alongside the passenger side of the vehicle at a stoplight and
positively identified Arizola as the driver from his “book-in”
and “DMV” photographs contained in the system.
Villamonte then initiated a traffic stop of Arizola’s vehicle.
He informed Arizola of the reason for the stop and requested
identification. Arizola provided a Nebraska identification card.
After Villamonte received identification from Arizola, he ran
further checks on Arizola through the system. Villamonte
checked Arizola’s operator’s license status and discovered that
Arizola had two prior DUI convictions from 2002 and 2008,
multiple convictions for driving under suspension, and a failure
to appear conviction.
Villamonte asked Arizola to step out of the vehicle and pro-
ceeded to conduct a search of Arizola’s pockets. Arizola smelled
of alcohol, had watery and bloodshot eyes, and made state-
ments that caused Villamonte to believe Arizola was impaired.
Another officer who had arrived at the scene observed an open
container of beer with a small amount of alcohol in it on the
driver’s side floorboard of Arizola’s vehicle. A search was
then conducted of the vehicle. The beer bottle was cool to the
touch. A review of the record indicates that the beer bottle was
the only item seized during the stop.
Villamonte took Arizola into custody for driving under a
revoked license and transported Arizola to the police station.
Upon arrival at the police station, Arizola was advised that he
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STATE v. ARIZOLA
Cite as 295 Neb. 477
would also be processed for a DUI. Villamonte requested that
Arizola take a breath test, but Arizola refused.
2. Criminal Charges and
Pretrial Motions
On August 22, 2014, Arizola was charged under Neb. Rev.
Stat. § 60-6,196 (Reissue 2010) and § 60-6,197.03(6) with
DUI with refusal of a chemical test, with two prior convic-
tions, a Class IIIA felony. The two prior convictions included
to enhance the sentence were a DUI on or about July 13, 2007,
and another occurring on or about October 20, 2001.
On December 3, 2014, Arizola filed a motion to suppress
his statements, the stop, and any evidence seized from that
stop. Arizola alleged that the officers lacked probable cause
or a reasonable articulable suspicion to stop his vehicle and
detain him, and thus violated his rights under the 4th, 5th, 6th,
and 14th Amendments to the U.S. Constitution and under Neb.
Const. art. I, §§ 7 and 12.
On February 20, 2015, the State filed an amended infor-
mation. The amended information charged Arizola with
refusal with two prior convictions, a Class IIIA felony under
§§ 60-6,197 and 60-6,197.03(6). Because the amended infor-
mation charged a new crime—specifically § 60-6,197—the
court held a preliminary hearing. At that hearing, Villamonte
testified and the State offered evidence of Arizola’s two prior
DUI convictions, as well as a copy of his driver’s abstract.
After the hearing, the court found there was probable cause to
believe that Arizola committed the crime of refusal with two
prior convictions.
On March 25, 2015, Arizola filed a plea in abatement
alleging that there was insufficient evidence adduced at the
preliminary hearing to warrant a finding of probable cause of
the felony charge of refusal of a chemical test with two prior
convictions. On the same date, Arizola filed a motion to quash,
alleging issues relating to the enhancement of his sentence and
conviction for third-offense DUI.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. ARIZOLA
Cite as 295 Neb. 477
On June 12, 2015, the district court denied Arizola’s plea in
abatement, because there was probable cause to believe that a
crime had been committed and that Arizola had committed the
crime. In addition, the district court overruled Arizola’s motion
to quash, because the issue was premature. The court reasoned
that a motion to quash for enhancement issues is not ripe until
there is a conviction to which the enhancement should apply.
On August 31, 2015, the district court held a hearing on
Arizola’s motion to suppress. At the hearing, Villamonte testi-
fied that when he works patrol, he actively runs license plate
numbers through the information system “to identify registra-
tion violations, wanted vehicles or suspended drivers.”
Arizola called an investigator for the Lancaster County
public defender’s office who had investigated, under similar
conditions, whether it was possible to positively identify the
driver of Arizola’s vehicle through the passenger window of a
vehicle alongside it. The investigator testified that due to the
window tinting on Arizola’s vehicle and the lighting conditions
on the street at night, he was unable to positively identify the
driver in Arizola’s vehicle.
The district court overruled Arizola’s motion to suppress,
because the traffic stop was not an illegal seizure and the
search incident to the traffic stop and arrest was lawful. The
court reasoned that once Villamonte confirmed it was Arizola
driving the vehicle and that Arizola’s license was revoked,
Villamonte had probable cause to arrest him. And once there
was a valid arrest, the search of Arizola’s person and vehicle
incident to that arrest was valid because it was limited to the
area within Arizola’s “‘immediate control.’” The court also
held that Arizola’s statements were voluntary and admissible
because there was “no force, no threat of force or any type of
coercion used by the officers to elicit responses to their ques-
tions during the stop.”
On November 25, 2015, following a bench trial on stipu-
lated facts, Arizola was found guilty of refusal of a chemical
test in violation of § 60-6,197.
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STATE v. ARIZOLA
Cite as 295 Neb. 477
3. Posttrial Motions
On December 3, 2015, prior to sentencing, Arizola filed
a plea in bar and a second motion to quash. The plea in bar
alleged that by utilizing the single act of refusing to submit to
a chemical test to “justify increasing/aggravating” the underly-
ing offense of refusal to submit to a chemical test, the State
was subjecting Arizola to multiple punishments for an identical
offense, in violation of the Double Jeopardy Clauses of both
the federal and state Constitutions.
The motion to quash alleged that (1) the offense of refusal to
submit to a chemical test was improperly charged as a felony
offense; (2) Neb. Rev. Stat. § 60-6,197.02 (Cum. Supp. 2016)
and § 60-6,197.03(6) and related statutes are unconstitutionally
vague and overbroad, in violation of the Due Process Clauses2
and Nebraska’s separation of powers clause3; (3) Arizola’s con-
viction violated due process because, as alleged, the State was
attempting to punish Arizola as a repeat offender despite the
fact that Arizola had never previously committed the offense
of refusal to submit; (4) Arizola’s conviction was cruel and
unusual punishment, and his punishment was disproportionate
to the nature of the offense; and (5) the Class IIIA felony vio-
lated the Double Jeopardy Clauses.4
On January 22, 2016, the district court denied Arizola’s plea
in bar and motion to quash. The court found Arizola’s double
jeopardy claims to be without merit because the enhancement
resulted from his two prior offenses, not the current offense,
and there was “nothing ambiguous about the language” of
§ 60-6,197.03. The district court further found that there was
“nothing vague about the terminology when common sense and
general knowledge are applied.”
In addition, the district court rejected Arizola’s claims that
his due process rights were violated because he was being
2
See, U.S. Const. amend. V; Neb. Const. art. I, § 3.
3
See Neb. Const. art. II, § 1.
4
See, U.S. Const. amend. V; Neb. Const. art. I, § 12.
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STATE v. ARIZOLA
Cite as 295 Neb. 477
punished as a repeat offender. Specifically, the court noted
that Arizola did not cite to authority holding that due process
requires that the penalty for a crime be enhanced only by a
prior conviction for the same crime. Rather, case law indicated
that habitual criminality in general could be used to increase
the punishment.
The court further found that Arizola had been convicted of
DUI on two prior occasions and therefore found Arizola guilty
of refusal of a chemical test with two prior convictions. At the
sentencing hearing, the court found that § 60-6,197.09 was
applicable to Arizola due to proof that the proceedings for a
third-offense DUI were pending when the DUI at issue was
committed. Therefore, the court found that Arizola was not
eligible for probation. Arizola was sentenced to 365 days in
jail, he was ordered not to drive for 45 days, and his operator’s
license was revoked for 15 years. Arizola appeals.
III. ASSIGNMENTS OF ERROR
Arizola assigns, restated and consolidated, that the Lancaster
County District Court erred in (1) overruling his motion to
suppress the traffic stop, (2) overruling his plea in bar, (3)
overruling his motion to quash, and (4) failing to find that
§ 60-6,197.09 was unconstitutional.
IV. STANDARD OF REVIEW
[1,2] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protection is a question of
law that an appellate court reviews independently of the trial
court’s determination.5 The ultimate determinations of rea-
sonable suspicion to conduct an investigatory stop and prob-
able cause to perform a warrantless search are reviewed de
5
State v. Woldt, 293 Neb. 265, 876 N.W.2d 891 (2016).
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STATE v. ARIZOLA
Cite as 295 Neb. 477
novo, and findings of fact are reviewed for clear error, giving
due weight to the inferences drawn from those facts by the
trial judge.6
[3,4] Issues regarding the grant or denial of a plea in bar
are questions of law.7 On a question of law, an appellate court
reaches a conclusion independent of the court below.8
[5] Regarding questions of law presented by a motion to
quash, an appellate court is obligated to reach a conclusion
independent of the determinations reached by the trial court.9
[6] The constitutionality and construction of a statute are
questions of law, regarding which we are obligated to reach
conclusions independent of those reached by the court below.10
V. ANALYSIS
1. Motion to Suppress
Arizola first assigns that the district court erred in over-
ruling his motion to suppress the traffic stop because there
was no reasonable articulable suspicion to justify the stop of
Arizola’s vehicle.
The district court found that Villamonte was able to identify
Arizola after pulling his cruiser alongside Arizola’s vehicle
at an intersection. In the alternative, the district court held
that according to U.S. v. Chartier,11 it was reasonable for
Villamonte to stop the vehicle when the registered owner did
not have a currently valid operator’s license, even without
further grounds to make the stop. Accordingly, the district
court held that the traffic stop was not a violation of the
Fourth Amendment.
6
Id.
7
State v. Lavalleur, 292 Neb. 424, 873 N.W.2d 155 (2016).
8
Id.
9
State v. Gozzola, 273 Neb. 309, 729 N.W.2d 87 (2007).
10
State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011).
11
U.S. v. Chartier, 772 F.3d 539 (8th Cir. 2014).
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STATE v. ARIZOLA
Cite as 295 Neb. 477
We need not reach the issue of whether Villamonte’s com-
puter search was sufficient, reasonable suspicion for the stop,
because we conclude that Villamonte’s testimony that he
identified Arizola was sufficient to support the district court’s
finding of reasonable suspicion.
At a hearing to suppress evidence, the court, as the trier of
fact, is the sole judge of the credibility of witnesses and the
weight to be given to their testimony and other evidence. In
reviewing a court’s ruling as the result of a suppression hear-
ing, an appellate court will not reweigh or resolve conflicts
in the evidence, but will uphold the trial court’s findings of
fact unless those findings are clearly wrong.12 In determining
whether a trial court’s findings on a motion to suppress are
clearly erroneous, an appellate court recognizes the trial court
as the “‘trier of fact’” and takes into consideration that the
trial court has observed witnesses testifying regarding such
motion to suppress.13
In this case, at the hearing on the motion to suppress,
Villamonte and Arizola’s investigator presented conflicting
evidence. Villamonte testified that he pulled his cruiser along
the passenger side of Arizola’s vehicle and identified Arizola
as the driver based on a photograph in the police department’s
information system. But the investigator testified that due to
the window tinting on Arizola’s vehicle and the lighting condi-
tions on the street at night, Villamonte would not have been
able to identify the driver of the vehicle.
When examining the district court’s order, it is clear that
the district court credited Villamonte’s testimony and implic-
itly found that Villamonte was able to identify Arizola. The
district court specifically noted that Villamonte was able to
identify Arizola. This factual question by the district court is
not clearly wrong.
12
State v. Davis, 231 Neb. 878, 438 N.W.2d 772 (1989).
13
State v. Dixon, 222 Neb. 787, 795, 387 N.W.2d 682, 687 (1986).
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STATE v. ARIZOLA
Cite as 295 Neb. 477
We conclude that Villamonte had reasonable suspicion
to stop Arizola. Arizola’s first assignment of error is with-
out merit.
2. R emaining Assignments
of Error
(a) Plea in Bar and
Motions to Quash
Arizola assigns that the district court erred in overruling
his plea in bar. Arizola argues that the State used the offense
of refusal to submit to a chemical test under §§ 60-6,197 and
60-6,197.03(6) both as a material element of the underlying
refusal offense and as a sentencing aggravator, in violation
of the Nebraska and U.S. Constitutions’ Double Jeopardy
Clauses.
Arizola also assigns that the district court erred in over-
ruling his motion to quash, because the State (1) improperly
charged him with a violation of § 60-6,197.03(6), as opposed
to the proper charge under § 60-6,197.03(4); (2) used the same
fact—the refusal to submit to a chemical test—to prove both
the predicate offense of refusal to submit under § 60-6,197(3)
and as an enhancement or aggravator under § 60-6,197.03(6),
which violates double jeopardy; (3) used the fact of refusal
to prove the predicate offense and to prove the enhancer,
in violation of due process; (4) charged this conduct as a
Class IIIA felony, which violates the prohibition against cruel
and unusual punishment because it results in a punishment
which is disproportionate to the predicate offense of refusal to
submit to a chemical test; and (5) charged Arizola as a repeat
offender under §§ 60-6,197.02 and 60-6,197.03(6), a violation
of due process because it punishes Arizola as a repeat offender
for the offense of refusal to submit to a chemical test.
All of these arguments were raised and rejected in our
opinion in State v. Wagner.14 We recognize that Arizola was
14
State v. Wagner, supra note 1.
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STATE v. ARIZOLA
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charged under § 60-6,197.03(6), while the defendants in
Wagner were charged under § 60-6,197.03(8), but we conclude
that this difference in charging does not change the applicabil-
ity of our reasoning in Wagner to this case. Arizola’s second
and third assignments of error are without merit.
(b) Vagueness and
Overbreadth
Arizola also argues that the statutory scheme found at
§§ 60-6,197.02 and 60-6,197.03(6) is unconstitutionally vague
and overbroad, in violation of the Due Process Clauses15
and in violation of the separation of powers clause.16 We
held in Wagner that § 60-6,197.03(8) was not unconstitution-
ally vague. Based on the reasoning set forth in Wagner, we
similarly hold that § 60-6,197.03(6) is not unconstitutionally
vague here.
We did not discuss overbreadth in Wagner. The district court
did not address overbreadth in this case because while Arizola
raised the issues of overbreadth and vagueness in his motion
to quash, he did not further argue his claim for overbreadth.
Rather, he provided support only for his vagueness argument.
Therefore, we also will not discuss overbreadth in this case,
because we find that it has not been preserved for review.
3. Constitutionality of
§ 60-6,197.09
On appeal, Arizola challenges for the first time the consti-
tutionality of § 60-6,197.09, which the district court applied
in its sentencing order denying Arizola probation. Section
60-6,197.09 states:
Notwithstanding the provisions of section 60-6,197.03,
a person who commits a violation punishable under sub-
division (3)(b) or (c) of section 28-306 or subdivision
15
U.S. Const. amend. V; Neb. Const. art. I, § 3.
16
Neb. Const. art. II, § 1.
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(3)(b) or (c) of section 28-394 or a violation of section
60-6,196, 60-6,197, or 60-6,198 while participating in
criminal proceedings for a violation of section 60-6,196,
60-6,197, or 60-6,198, or a city or village ordinance
enacted in accordance with section 60-6,196 or 60-6,197,
or a law of another state if, at the time of the violation
under the law of such other state, the offense for which
the person was charged would have been a violation of
section 60-6,197, shall not be eligible to receive a sen-
tence of probation or a suspended sentence for either
violation committed in this state.
(a) Void for Vagueness
[7] Arizola argues that § 60-6,197.09 is void for vagueness,
because the terms “commits” and “criminal proceedings” are
not defined and are therefore vague. Though ordinarily the fail-
ure to raise the constitutionality of a statute through a motion
to quash will not preserve the issue for appellate review, we
held in State v. Prescott17 that a motion to quash was not
required for a defendant to challenge the constitutionality of a
noncharging statute. This court held that
[w]hile ordinarily one must file a motion to quash in
order to preserve a constitutional challenge to the facial
validity of a statute, in this case the statute in question,
§ 60-6,197.04, was not the charging statute. Nor was its
application in this instance apparent from the face of the
record. Under such circumstances, not only was it unnec-
essary for [the defendant] to file such a motion, it would
have been inappropriate to do so.18
As in Prescott, § 60-6,197.09 was not the charging statute.
The amended information for Arizola’s charge fails to refer-
ence § 60-6,197.09; rather, it was a statute the district court
utilized in sentencing Arizola. In this situation, Arizola was
17
State v. Prescott, 280 Neb. 96, 784 N.W.2d 873 (2010).
18
Id. at 109, 784 N.W.2d at 884-85.
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not required to challenge the constitutionality of this statute
in his motion to quash. We therefore address the merits of
Arizola’s vagueness argument.
[8-11] The void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is prohibited
and in a manner that does not encourage arbitrary and dis-
criminatory enforcement.19 Statutory language is to be given
its plain and ordinary meaning, and an appellate court will not
resort to interpretation to ascertain the meaning of statutory
words which are plain, direct, and unambiguous.20 The test for
determining whether a statute is vague is whether it forbids
or requires the doing of an act in terms so vague that persons
of common intelligence must necessarily guess at its mean-
ing and may differ as to its application.21 A statute will not be
deemed vague if it uses ordinary terms which find adequate
interpretation in common usage and understanding.22
Arizola argues that the term “criminal proceedings” is
vague. He argued at sentencing that the statute should have
used the term “adjudication” and that the statute in its current
form was unclear. In State v. Lamb,23 this court held that the
phrase “while participating in criminal proceedings” used in
§ 60-6,197.09 was not unconstitutionally vague. We reasoned:
In [State v.] Long,[24] we relied on the Black’s Law
Dictionary 1221 (7th ed. 1999) definition of “proceed-
ing,” noting that “proceeding” had been defined as “‘1.
[t]he regular and orderly progression of a lawsuit, includ-
ing all acts and events between the time of commence-
ment and the entry of judgment.’” . . . In a criminal
19
State v. Loyuk, 289 Neb. 967, 857 N.W.2d 833 (2015).
20
State v. Lamb, 280 Neb. 738, 789 N.W.2d 918 (2010).
21
State v. Irons, 254 Neb. 18, 574 N.W.2d 144 (1998).
22
Id.
23
State v. Lamb, supra note 20.
24
State v. Long, 264 Neb. 85, 645 N.W.2d 553 (2002).
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case, entry of judgment occurs with the imposition of a
sentence. . . . Thus, the imposition of the sentence, absent
the pendency of an appeal, concludes the “proceedings”
referred to in § 60-6,197.09, and a defendant is no longer
“participating in criminal proceedings” after the sentence
is imposed.25
There is no merit to Arizola’s argument on this point.
We turn next to the question of whether the term “commits”
is vague. Arizola argues that it is unclear whether “commits”
refers to the time when “a defendant has engaged in conduct
that could be considered a violation of the statutes in question”
or to when “a defendant was convicted of the crime alleged.”26
We disagree.
According to Black’s Law Dictionary, the definition of
“commit” is “[t]o perpetrate (a crime).”27 In a criminal case
then, a person commits a crime at the time he or she perpetrates
a crime. Black’s Law Dictionary defines “perpetrate” as “[t]o
commit or carry out (an act, esp. a crime).”28 In other words,
the act is “committed” at the time it is carried out and not at
the time the defendant is convicted of that act. The meaning of
“commits” in the context of § 60-6,197.09 is plain, direct, and
unambiguous; therefore, persons of common intelligence must
neither guess at its meaning nor differ as to its application.
We hold that Arizola’s argument that § 60-6,197.09 is void for
vagueness because of the terms “commits” and “criminal pro-
ceedings” is without merit.
(b) Due Process
Arizola next argues that he was denied due process, because
the court erred in failing to provide him with an evidentiary
25
State v. Lamb, supra note 20, 280 Neb. at 745, 789 N.W.2d at 925
(citations omitted).
26
Brief for appellant at 24.
27
Black’s Law Dictionary 329 (10th ed. 2014).
28
Id. at 1322.
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hearing prior to sentencing that would have given him a mean-
ingful opportunity to challenge whether he, in fact, committed
another DUI for which he was participating in criminal pro-
ceedings when the present violation was committed.
Arizola did not specifically make reference to “due proc
ess” in his argument at the sentencing hearing. Nonetheless,
because Arizola referred to a need for an evidentiary hearing
prior to sentencing to prove whether the crime was commit-
ted and whether Arizola committed the crime, his request for
a hearing was sufficient to preserve his present argument. This
argument does not involve a challenge to the constitutionality
of § 60-6,197.09, as § 60-6,197.09 does not address the eviden-
tiary burden or procedure for proving the commitment of the
violations listed in § 60-6,197.09.
[12-14] The Due Process Clause applies when government
action deprives a person of liberty or property; accordingly,
when there is a claimed denial of due process, a court must
consider the nature of the individual’s claimed interest.29 In
the context of criminal proceedings, due process generally
requires the defendant be given notice and an adequate oppor-
tunity to defend himself or herself.30 Due process requires that
a sentencing judge have relevant information as the basis for
a sentence imposed on a convicted defendant.31
On November 25, 2015, Arizola was found guilty of refusal
of a chemical test. He was provided an enhancement hearing
on December 17, in which the State offered into evidence the
two prior DUI convictions for purposes of enhancement of the
refusal conviction.
On January 15, 2016, Arizola was provided with a sentenc-
ing hearing. At the sentencing hearing, the State contended
that its notes reflected that a DUI offense was filed against
Arizola in March 2014, and the proceedings for that offense
29
Sherman T. v. Karyn N., 286 Neb. 468, 837 N.W.2d 746 (2013).
30
State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
31
State v. Clear, 236 Neb. 648, 463 N.W.2d 581 (1990).
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were pending at the time the June 2014 offense was commit-
ted. Therefore, the State argued, under § 60-6,197.09, Arizola
was not eligible for a sentence of probation on the current
offense. The court granted Arizola’s request for a continuance
so that Arizola could review the “relevant issues” and the
“case law” concerning the application of § 60-6,197.09 to his
case in light of the March DUI offense. The court agreed that
it needed to look into the issue as well.
On January 22, 2016, the court held another sentencing
hearing for Arizola. Arizola stated that he had reviewed the
presentence investigation (PSI). The State noted that it had
provided the court and Arizola with a copy of the PSI that
included the March 2014 DUI offense prior to the hearing.
The State requested that a copy of the county court file con-
taining the March DUI offense be included as part of the
PSI. Arizola objected, arguing that evidence needed “to be
adduced that a crime was committed, in a formal hearing” and
“follow the same kind of standard procedures that we follow
with enhancement hearings for habitual criminals.” The State
contended that “the PSI sets forth when that action happened”
and that the State was “simply providing the Court with the
dates that that complaint was filed.” The court stated that
there was no “authority requiring a special enhancement hear-
ing for that particular instance” and allowed the document to
be placed in the PSI.
The court ruled that it could “take judicial notice of the fact
of that proceeding, simply by virtue of it being in the PSI.”
The court then stated that it had been considering a “lengthy
period of probation under intensive supervision,” but that pur-
suant to § 60-6,197.09, Arizola was not eligible for probation
in this matter.
At the sentencing hearing, the State asked that “a copy of
the County Court file” from Arizola’s March 2014 DUI “be
included as part of the [PSI].” The court “allow[ed] the docu-
ments from [the March 2014 DUI] to be placed in the [PSI].”
It was the commission of this crime which prevented Arizola
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from obtaining probation under the terms of § 60-6,197.09 in
this case. The issue raised by Arizola is whether the conviction
as included in the PSI was sufficient, or whether an evidentiary
hearing was required to establish that he did, in fact, “com-
mit” the current violation while a violation of § 60-6,197.09
was pending.
We first note that § 60-6,197.09 does not provide for a
separate evidentiary hearing for purposes of showing a separate
violation. Rather, the statute only requires proof that the other
violation was “committed” during the “criminal proceedings”
of the current violation.
[15-17] Moreover, in this case, the PSI contained a copy
of a prior DUI conviction committed by Arizola in March
2014. This record, which was certified by the clerk of the
court, established proof of the prior conviction. In a sentenc-
ing hearing, a court generally has broad discretion concerning
the source of information and the type of information to be
considered.32 A sentencing judge may consider relevant infor-
mation contained in a PSI on the defendant to determine an
appropriate sentence within the statutorily authorized penalty,
punishment, or disposition applicable to the crime for which
the defendant has been convicted.33 A certified or duly authen-
ticated copy of the former judgment, from any court in which
such judgment was had, for any of such crimes formerly com-
mitted by the party so charged, shall be competent and prima
facie evidence of such former judgment.34
The better procedure in this hearing would have been for
the State to mark as an exhibit and move to introduce cop-
ies of the county court file containing the March 2014 DUI
offense into evidence. However, Arizola, in effect, had the
opportunity to offer rebuttal evidence at the first sentenc-
ing hearing and, after requesting a continuance, again at the
32
Id.
33
State v. Bunner, 234 Neb. 879, 453 N.W.2d 97 (1990).
34
Cf. State v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014).
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second sentencing hearing, but chose not to do so. We there-
fore conclude that the prior certified conviction included in
the PSI acted as a certified or authenticated record to prove
the existence of the commission of the March 2014 DUI, for
which Arizola was participating in criminal proceedings when
he committed the June 2014 DUI. Without rebuttal evidence
from Arizola, additional proceedings to further prove evidence
of the commission or conviction was unnecessary.
Arizola’s fourth assignment of error is without merit.
VI. CONCLUSION
The district court did not err in (1) overruling Arizola’s
motion to suppress the traffic stop, (2) overruling Arizola’s
plea in bar, (3) overruling Arizola’s motion to quash, and (4)
finding that § 60-6,197.09 was constitutional.
The decision of the district court is affirmed.
A ffirmed.
Stacy, J., not participating.