STATE OF NEBRASKA, APPELLEE, V. FELIX ARIZOLA, APPELLANT.
No. S-16-077
Nebraska Supreme Court
Filed January 6, 2017
295 Neb. 477
Nebraska Supreme Court Advance Sheets, 295 Nebraska Reports
Cоnstitutional 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 historical facts, an appellate court reviews the trial court‘s findings for clear error, but whether those facts trigger or violate Fourth Amendment protection is a question of law that an appellate court reviews independently of the trial court‘s determination. - 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.
- Pleadings. Issues regarding the grant or denial of a plea in bar are questions of law.
- Judgments: Appeal and Error. On a question of law, an appellate court reaches a conclusion independent of the court below.
- Judgments: Pleadings: Appeal and Error. Regarding questions of law presented by a motion to quash, an appellate court is obligated to reach a conclusion indeрendent of the determinations reached by the trial court.
- 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.
- Constitutional Law: Statutes: Pleadings. When a statute is utilized by the court in sentencing a defendant, the defendant is not required
to challenge the constitutionality of this statute in his or her motion to quash. - 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 dоes not encourage arbitrary and discriminatory enforcement.
- 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.
- Constitutional Law: Statutes. 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 meaning and may differ as to its application.
- ____: ____. A statute will not be deemed vague if it uses ordinary terms which find adequate interpretation in common usage and understanding.
- 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.
- Criminal Law: Due Process: Notice. In the context of criminal proceedings, due process generally requires the defendant be given notice and an adequate opportunity to defend himself or herself.
- Sentences: Due Process. Due process requires that a sentencing judge have relevant information as the basis for a sentence imposed on a convicted defendant.
- Sentences: Evidence. In a sentencing hearing, a court generally has broad discretion concеrning the source of information and the type of information to be considered.
- 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.
- 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.
Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.
HEAVICAN, C.J., WRIGHT, MILLER-LERMAN, CASSEL, KELCH, 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
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
II. BACKGROUND
1. INITIAL STOP
On June 18, 2014, at approximаtely 11:46 p.m., Officer Joseph Villamonte of the Lincoln Police Department observed
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 frоm 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 proceeded to conduct a search of Arizola‘s pockets. Arizola smelled of alcohol, had watery and bloodshot eyes, and made statements 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 bеer 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
2. CRIMINAL CHARGES AND PRETRIAL MOTIONS
On August 22, 2014, Arizola was charged under
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
On February 20, 2015, the State filed an amended information. The amended information charged Arizola with refusal with two prior convictions, a Class IIIA felony under
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.
On August 31, 2015, the district court held a hearing on Arizola‘s motion to suppress. At the hearing, Villamonte testified that when he works patrol, he aсtively runs license plate numbers through the information system “to identify registration 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 illegаl 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 officеrs to elicit responses to their questions during the stop.”
On November 25, 2015, following a bench trial on stipulated facts, Arizola was found guilty of refusal of a chemical test in violation of
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 underlying 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)
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
In addition, the district court rejected Arizola‘s claims that his due process rights were violated because he was being
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
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
IV. STANDARD OF REVIEW
[1,2] 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 rеview. Regarding historical facts, an appellate court reviews the trial court‘s findings for clear error, but whether those facts trigger 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 reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search are reviewed de
[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 overruling 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.
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 hearing, 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 conditions 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 implicitly 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.
2. REMAINING 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 Stаte used the offense of refusal to submit to a chemical test under
Arizola also assigns that the district court erred in overruling his motion to quash, because the State (1) improperly charged him with a violation of
All of these arguments were raised and rejected in our opinion in State v. Wagner.14 We recognize that Arizola was
(b) Vagueness and Overbreadth
Arizola also argues that the statutory scheme found at
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 constitutionality of
Notwithstanding the provisions of section
60-6,197.03 , a person who commits a violation punishable under subdivision (3)(b) or (c) of section28-306 or subdivision
(3)(b) or (c) of section
28-394 or a violation of section60-6,196 ,60-6,197 , or60-6,198 while participating in criminal proceedings for a violation of section60-6,196 ,60-6,197 , or60-6,198 , or a city or village ordinance enacted in accordance with section60-6,196 or60-6,197 , 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 section60-6,197 , shall not be eligible to receivе a sentence of probation or a suspended sentence for either violation committed in this state.
(a) Void for Vagueness
[7] Arizola argues 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 unnecessary for [the defendant] to file such a motion, it would have been inappropriate to do so.18
As in Prescott,
[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 discriminatory 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 intelligencе must necessarily guess at its meaning 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
In [State v.] Long,24 we relied on the Black‘s Law Dictionary 1221 (7th ed. 1999) definition of “proceeding,” noting that “proceeding” had been defined as “‘1. [t]he regular and orderly progression of a lawsuit, including all acts аnd events between the time of commencement and the entry of judgment.‘” . . . In a criminal
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” оr 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
(b) Due Process
Arizola next argues that he was denied due process, because the court erred in failing to provide him with an evidentiary
Arizola did not specifically make reference to “due process” 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 committed 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
[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 opportunity 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 enhаncement of the refusal conviction.
On January 15, 2016, Arizola was provided with a sentencing 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
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 containing 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 samе 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 hearing 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 pursuant to
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 documents from [the March 2014 DUI] to be placed in the [PSI].” It was the commission of this crime which prevented Arizola
We first note that
[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 sentencing 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 information contained in a PSI on the defendant to determine an appropriatе 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 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.34
The better procedure in this hearing would have been for the State to mark as an exhibit and move to introduce copies of the county court file containing the March 2014 DUI offense into evidence. However, Arizola, in effeсt, had the opportunity to offer rebuttal evidence at the first sentencing hearing and, after requesting a continuance, again at the
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
The decision of the district court is affirmed.
AFFIRMED.
STACY, J., not participating.