State v. Elliott, 845 N.W.2d 612

On Aug. 3, 2012, Elliott and two others committed an armed home-invasion robbery in Lincoln; victims were beaten, a pregnant wife and a 2-year-old were threatened at gunpoint, a shot was fired, and ~$2,400 was taken.
Police recovered a .45 machine-style pistol near Elliott and a 9-mm near Flemons; a .45 shell was found lodged in a child’s bedroom wall.
State charged Elliott with robbery (Class II felony) and use of a firearm to commit a felony (Class IC felony); plea agreement reduced the firearm count to attempted use of a firearm (Class II) and no additional charges would be filed.
Elliott pled guilty to robbery and no contest to attempted use of a firearm; court accepted pleas after advisals.
Sentencing: court imposed 15–20 years for robbery and 4–6 years for attempted use of a firearm, to run consecutively; Elliott appealed, claiming excessive sentences and that consecutive sentencing was improper.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Elliott)	Held
Whether sentences were excessive	Sentences within statutory limits and court considered relevant factors	Sentences excessive given youth, limited prior record, addiction/mental-health issues, remorse	No abuse of discretion; sentences affirmed
Whether attempted-use-of-firearm conviction requires mandatory consecutive sentence under § 28-1205(3)	§ 28-1205 requires consecutive sentences for crimes defined in that section (use/possession)	Attempted use was reduced charge; thus § 28-1205(3) should not mandate consecutiveness and concurrency is appropriate given single transaction	Attempted use is not a § 28-1205 crime; § 28-1205(3) does not mandate consecutiveness for attempted-use convictions
Whether trial court abused discretion in ordering consecutive sentences	Consecutive sentences permissible for separate offenses with different elements	Offenses arose from same transaction so sentences should be concurrent	No abuse of discretion; robbery and attempted-use have different elements and additional evidence is needed to prove attempted-use, so consecutive sentences were proper

State v. Kinser, 283 Neb. 560 (sentence within statutory limits reviewed for abuse of discretion)
State v. Dinslage, 280 Neb. 659 (factors for sentencing and appellate review of discretionary sentencing)
State v. Miller, 284 Neb. 498 (legislative purpose of § 28-1205 to discourage deadly-weapon use during felonies)
State v. Garza, 256 Neb. 752 (same legislative purpose re: weapons during felonies)
State v. Smith, 282 Neb. 720 (separation of legislative and judicial roles in defining crimes)
State v. Warriner, 267 Neb. 424 (statutory construction principles: courts must not read out plain language)
State v. Andersen, 238 Neb. 32 (standard for imposing consecutive sentences for separate offenses)
State v. Ohlrich, 20 Neb. App. 67 (statutory language given plain and ordinary meaning)