State v. Molina

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. MOLINA
Cite as 320 Neb. 544
State of Nebraska, appellee, v. Cristian E.
Gonzalez Molina, appellant.
___ N.W.3d ___
Filed December 19, 2025. 	No. S-24-697.
1. Appeal and Error. An appellate court may find plain error on appeal
when an error unasserted or uncomplained of at trial, but plainly evi-
dent from the record, prejudicially affects a litigant’s substantial right
and, if uncorrected, would result in damage to the integrity, reputation,
and fairness of the judicial process.
2. ____. Plain error is error plainly evident from the record and of such a
nature that to leave it uncorrected would result in damage to the integ-
rity, reputation, or fairness of the judicial process.
3. ____. When reviewing proceedings for plain error, an appellate court
is not constrained by the specific arguments raised in the briefs, nor
is it required to consider every error that may have occurred in the
lower court.
4. ____. Generally, an appellate court will find plain error only when a
miscarriage of justice would otherwise occur.
5. Criminal Law: Appeal and Error. Under the invited error doctrine, a
defendant in a criminal case may not take advantage of an alleged error
which the defendant invited the trial court to commit.
Petition for further review from the Court of Appeals,
Riedmann, Chief Judge, and Arterburn and Pirtle, Judges,
on appeal thereto from the District Court for Lancaster County,
Susan I. Strong, Judge, on appeal thereto from the County
Court for Lancaster County, Thomas E. Zimmerman, Judge.
Sentence vacated, and cause remanded with direction.
Matt Catlett, of Law Office of Matt Catlett, for appellant.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:52 AM CDT

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. MOLINA
Cite as 320 Neb. 544
Michael 	T. 	Hilgers, 	Attorney 	General, 	and 	Jacob 	M.
Waggoner for appellee.
Funke, C.J., Cassel, Stacy, Papik, Freudenberg, and
Bergevin, JJ.
Funke, C.J.
I. INTRODUCTION
Cristian E. Gonzalez Molina was convicted in Lancaster
County, Nebraska, of driving under the influence (DUI), third
offense, and was sentenced accordingly. Due to issues with
the adequacy of the plea, the sentence was vacated and
the matter remanded for resentencing. At the resentencing
hearing, Molina was, again, sentenced in accordance with
a third-offense DUI, even though evidence of Molina’s two
previous DUI convictions had not been offered or received.
Molina appealed, and the district court and the Nebraska Court
of Appeals affirmed the sentence. 1 Because we conclude that
the Court of Appeals plainly erred in affirming the sentence
for a third-offense DUI, despite the lack of evidence of prior
convictions, and in misapplying the invited error doctrine, we
vacate the sentence and remand the cause for another enhance-
ment and sentencing hearing.
II. BACKGROUND
After responding to a noise complaint, officers discovered
Molina sleeping in the driver’s seat of a running vehicle. The
vehicle was parked parallel to a public street, with two tires
on a driveway and two tires touching the street. After waking
Molina, officers noticed that there was an “odor of alcohol
coming from him,” and Molina admitted to “drinking ear-
lier in the evening.” A test of Molina’s breath revealed that
Molina had a blood alcohol content of .127. Officers took
Molina into custody.
1 See State v. Molina, No. A-24-697, 2025 WL 926850 (Neb. App. Mar. 25,
2025) (selected for posting to court website).

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. MOLINA
Cite as 320 Neb. 544
Based on these events, Molina was charged, in a sec-
ond amended complaint, with DUI, third offense. Molina
pled no contest, and the matter proceeded to enhancement
and sentencing.
1. County Court
(a) February 9, 2023, Plea Hearing
A hearing was held by the county court on February 9,
2023. Though the bill of exceptions from this hearing does not
appear in our record, the transcript contains a “Journal Entry
and Order,” which indicates that the county court accepted
Molina’s plea of no contest, received several exhibits, and
took the matter under advisement. The record on appeal also
indicates that Molina was subsequently sentenced based on his
plea of no contest but that, on appeal, the district court vacated
the sentence, concluding that the county court had not properly
elicited a plea from Molina at the February 9 hearing. As a
result, the matter was remanded to the county court.
(b) September 29, 2023, Plea Hearing
On remand, a new plea hearing was held at which the par-
ties and the court discussed whether the exhibits from the
previous proceeding needed to be offered again. In response
to that question, the county court said, “I would say so,” and
counsel for Molina agreed, saying, “That’s what I think.” The
county court then stated that “[i]t’s the same evidence as far
as I know.” The State confirmed that “[n]othing has changed.”
However, counsel for Molina emphasized that he wanted to be
sure he “[was] not waiving . . . anything.”
Exhibits 1, 2, 3, and 7 were offered and received accord-
ingly. Exhibit 7 was an agreed-upon replacement for the pre-
viously offered and received exhibit 4, which could not be
located after the initial appeal. As to exhibits 5 and 6, which
apparently contained evidence of Molina’s prior convictions,
the following exchange was had:

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. MOLINA
Cite as 320 Neb. 544
THE COURT: What are we doing with those? Do you
want to take those up at the time of sentencing if — if
that occurs?
[The State:] Yes. Yes, Your Honor. If that occurs, if
the court makes a finding that there is a sufficient factual
basis as part of the plea[,] and we get to the point of
sentencing, then the [S]tate would re-offer [exhibits] 5
and 6 for enhancement.
Ultimately, Molina, again, pled no contest, and the court
took the matter under advisement.
(c) October 26, 2023, Enhancement
and Sentencing Hearing
At the October 26, 2023, hearing, the court found Molina
guilty of DUI and proceeded to sentencing. Prior to sentencing,
however, the parties and the court had the following conversa-
tion regarding exhibits 5 and 6:
THE COURT: You know, there is one further issue, I
guess, and that is that we need to address enhancement,
I 	think, 	again, 	having 	gone 	through 	this 	process,
essentially —
[Defense counsel:] I th- —yeah.
THE COURT: — over again.
[Defense counsel:] [The State] and I talked about that,
and I thought that [the State] offered — that among the
exhibits that were received were the priors.
THE COURT: He did.
[Defense counsel:] So[,] they’ve been received.
THE COURT: Okay.
This assumption, however, was incorrect. Exhibits 5 and 6
were not reoffered at either the September 29, 2023, hearing or
the October 26 hearing. Additionally, these exhibits are not a
part of the record on appeal.
Nonetheless, the county court enhanced Molina’s conviction
to DUI, third offense, and sentenced Molina to 36 months of
probation. As conditions of probation, the court also ordered

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. MOLINA
Cite as 320 Neb. 544
a 5-year license revocation, which included a prohibition on
driving for 45 days and an ignition interlock provision, a
$1,000 fine, and 30 days in jail with the ability to apply for
house arrest. Molina appealed to the district court.
2. District Court
Before the district court, Molina assigned that the county
court erred in (1) accepting his plea, because the factual basis
was insufficient, and (2) imposing an excessive sentence. The
district court affirmed the order of the county court.
On the first matter, the district court found it to be “friv-
olous and devoid of merit.” In concluding as much, the
district court cited the fact that the court had reviewed all
the evidence, including exhibits 1, 2, 3, and 7, and that
Molina had waived his rights, affirmed that he understood the
charge, and acknowledged that he was entering his plea freely
and voluntarily.
On the second matter, the district court found that the sen-
tence was within the statutory guidelines and had not involved
a reliance on impermissible factors.
Molina, again, appealed.
3. Court of Appeals
Before the Court of Appeals, Molina assigned that the dis-
trict court erred in not finding that his sentence was excessive,
because (1) the record did not contain proof of his previous
convictions (2) but that even if it did, the circumstances of
the offense, namely that his vehicle was partially parked on a
private driveway, called for a shorter license revocation. The
Court of Appeals affirmed the judgment of the district court,
which had affirmed the county court’s judgment.
First, the Court of Appeals declined to address Molina’s
assignment that his sentence was excessive. Instead, it con-
cluded that the matter was not properly before it. In arriving
at this conclusion, the Court of Appeals distinguished between
sentencing and enhancement, stating:

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. MOLINA
Cite as 320 Neb. 544
[A]t its core, the issue raised is not a sentencing issue,
but rather is an attack on whether the offense could be (or
was) enhanced to a third offense based on the record. . . .
[S]ince Molina did not raise any enhancement issues in
his statement of errors to the district court, he cannot raise
it for the first time before this court. 2
The Court of Appeals also declined to entertain the argu-
ment that the record did not contain evidence of Molina’s
prior convictions. Any lack of evidence, the court concluded,
was due to the statements of Molina’s attorney, which it
viewed as having “induced the court to forego [sic] the rein-
troduction of the exhibits.” 3 As such, the court found this
situation to be squarely within the confines of the invited
error doctrine.
Second, the Court of Appeals found no abuse of discretion
due to the circumstances of the offense. Based on Neb. Rev.
Stat. §§ 60-6,197.03(4) (Reissue 2021) and 28-106 (Reissue
2016), as well as the fact that this was, purportedly, a third
offense, the court concluded that the sentence was within the
statutory limits. Additionally, under Neb. Rev. Stat. § 60-6,196
(Reissue 2021), the court found there was no significance
attributable to the fact that the vehicle was partially parked
on the driveway, because the statutory language required only
that the individual in question be “in the actual physical con-
trol of any motor vehicle,” 4 and it is undisputed that Molina
had such control.
Molina filed, and we granted, this petition for further review. 5
Based on the record, we ordered supplemental briefing on the
question of “whether, during a new sentencing proceeding,
the State must produce evidence to establish facts that were
established during the original sentencing proceeding.” Both
2 Molina, supra note 1, 2025 WL 926850 at *3.
3 Id. at *4.
4 § 60-6,196(1).
5 See Neb. Rev. Stat. § 24-1107 (Reissue 2016).

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. MOLINA
Cite as 320 Neb. 544
parties submitted briefs accordingly, and we have reviewed
and considered the same.
III. ASSIGNMENTS OF ERROR
Molina assigns, restated, that the Court of Appeals erred in
finding that (1) his excessive sentence assignment of error was
not properly before the court, (2) he had invited the error of the
county court by indicating that evidence of his prior convic-
tions were already part of the record, and (3) the circumstances
of the offense did not necessitate a conclusion that a 5-year
license revocation was excessive.
IV. STANDARD OF REVIEW
[1] The parties cite standards of review specific to cases
dealing with excessive sentences, but we need not utilize
those standards, because there is plain error appearing on
the record, and, as such, the controlling standard of review
is as follows: An appellate court may find plain error on
appeal when an error unasserted or uncomplained of at trial,
but plainly evident from the record, prejudicially affects a
litigant’s substantial right and, if uncorrected, would result in
damage to the integrity, reputation, and fairness of the judi-
cial process. 6
V. ANALYSIS
Taken together, Molina’s first and third assignments of error
assert that his sentence was excessive because it was improp-
erly enhanced and because the circumstances of the offense
necessitated a lesser sentence. However, we need not reach the
merits of either of those claims, because the plain error appear-
ing on the record is dispositive of those two claims.
[2-4] As mentioned above, plain error is error plainly evi-
dent from the record and of such a nature that to leave it
uncorrected would result in damage to the integrity, reputation,
6 State v. Childs, 309 Neb. 427, 960 N.W.2d 585 (2021).

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. MOLINA
Cite as 320 Neb. 544
or fairness of the judicial process. 7 When reviewing proceed-
ings for plain error, an appellate court is not constrained by
the specific arguments raised in the briefs, nor is it required
to consider every error that may have occurred in the lower
court. 8 Consideration of plain error occurs at the discretion
of an appellate court. 9 Generally, an appellate court will find
plain error only when a miscarriage of justice would otherwise
occur. 10 A sentence that is contrary to the court’s statutory
authority is an appropriate matter for plain error review. 11
In this case, the plain error arises from the fact that the
county court sentenced Molina based on a third-offense DUI
despite the lack of evidence or stipulation of the parties of any
prior convictions. As detailed above, exhibits 5 and 6, which
allegedly contained evidence of Molina’s prior convictions,
do not appear in the record before us. The State conceded as
much, both in its brief and at oral argument. As such, it mat-
ters not whether a Neb. Rev. Stat. § 60-6,197.02(3) (Reissue
2021) finding regarding Molina’s previous convictions was
made on the record by the county court, because there was no
record produced that could have supported such a finding.
Accordingly, in the absence of any evidence of prior convic-
tions, Molina could not be sentenced for a third-offense DUI,
and the Court of Appeals plainly erred in affirming such a sen-
tence. Due to our finding of plain error, we need not determine
whether, at a new sentencing proceeding, the State must pro-
duce evidence to establish facts that may have been established
during the original sentencing proceeding.
The State attempts to avoid this conclusion by arguing that
Molina cannot challenge his sentence because he invited the
7 In re Interest of Justine J. & Sylissa J., 288 Neb. 607, 849 N.W.2d 509
(2014).
8 Kellogg v. Mathiesen, ante p. 223, 26 N.W.3d 651 (2025).
9 State v. Roth, 311 Neb. 1007, 977 N.W.2d 221 (2022).
10 Mathiesen, supra note 8.
11 Roth, supra note 9.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. MOLINA
Cite as 320 Neb. 544
county court to commit error when he indicated that exhibits
5 and 6 had been offered at the previous hearing. The Court
of Appeals agreed with the State’s argument, forming the
basis for Molina’s second assignment of error. Specifically,
the State claims that Molina invited error in the following
exchange: “[Defense counsel:] [The State] and I talked about
that, and I thought that [the State] offered — that among the
exhibits that were received were the priors. THE COURT:
He did. [Defense counsel:] So[,] they’ve been received. THE
COURT: Okay.”
Molina, on the other hand, maintains that his counsel’s
statements did not induce the county court to falsely believe
that exhibits 5 and 6 had been received. Instead, he asserts
that it was the county court’s own error to sentence him based
on a third-offense DUI when exhibits 5 and 6, and, therefore,
any evidence of previous convictions, had not been offered
or received.
[5] We agree with Molina. The State’s argument relies on
the invited error doctrine. Under the invited error doctrine,
a defendant in a criminal case may not take advantage of
an alleged error which the defendant invited the trial court
to commit. 12
We find no merit to the State’s suggestion that the invited
error doctrine should estop Molina from requesting that the
cause be remanded for a new sentencing hearing. While it
is clear that one who has invited error cannot be heard to
complain of it, 13 that is not the case before us. Whatever may
be said of the exchange between Molina’s counsel and the
county court, it cannot be the case that counsel’s statement
indicating a belief that the exhibits were offered, followed
by the court’s affirmation of that belief, amounts to Molina
inducing the court’s error. The Court of Appeals erred in con-
cluding otherwise.
12 State v. Space, 312 Neb. 456, 980 N.W.2d 1 (2022).
13 See Schaneman v. Wright, 238 Neb. 309, 470 N.W.2d 566 (1991).

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. MOLINA
Cite as 320 Neb. 544
VI. CONCLUSION
The county court erred when it enhanced Molina’s sentence
for DUI absent evidence of prior convictions. As a result, we
vacate Molina’s sentence and remand the cause with direction
for the Court of Appeals to reverse the judgment of the district
court and remand this cause to the district court with direction
to remand the cause to the county court for a new enhancement
and sentencing hearing. 14
Sentence vacated, and cause
remanded with direction.
14 See State v. Valdez, 305 Neb. 441, 447, 940 N.W.2d 840, 844 (2020) (“in
the context of . . . enhancement of a DUI sentence . . . the appropriate
remedy is to remand for another enhancement hearing”).