State v. Fuller

considered as a whole. Omaha Police Union Local 101 v. City
of Omaha, 276 Neb. 983, 759 N.W.2d 82 (2009).
The CIR acted within its powers when it exercised juris-
diction to determine whether the District had committed a
prohibited practice. The CIR found that the District had imple-
mented unilateral deviations from the Agreement, including
compensation provisions. It ordered the District to reimburse
Manning backpay equal to the difference between the amount
received for her bargaining unit duties and the amount to which
she would have been entitled under the Agreement. The CIR’s
order was not procured by fraud and is not contrary to law.
The order of the CIR is supported by a preponderance of the
evidence on the record.
CONCLUSION
The District unilaterally changed the terms of the Agreement,
which is a prohibited practice. Manning, a member of the
Association, was a probationary teacher who was not compen-
sated properly under the Agreement. The CIR had jurisdiction
to hear the controversy, and the petition was not time barred.
The judgment of the CIR is affirmed.
A ffirmed.
StAte of NebrASkA, Appellee , v.
Jimmel W. fuller , AppellANt.
772 N.W.2d 868
Filed October 2, 2009. 	No. S-08-1253.
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. Statutes: Appeal and Error. Statutory interpretation presents a question of
law. When reviewing questions of law, an appellate court has an obligation to
reach an independent conclusion irrespective of the determination made by the
court below.
3. ____: ____. 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.
STATe v. FULLeR 	585
Cite as 278 Neb. 585
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

4. Criminal Law: Statutes: Legislature: Intent. Although the rule of lenity
requires a court to resolve ambiguities in a penal code in the defendant’s favor,
the touchstone of the rule of lenity is statutory ambiguity, and where the legisla-
tive language is clear, a court may not manufacture ambiguity in order to defeat
that intent.
Appeal from the District Court for Lancaster County: pAul
d. merritt, Jr ., Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, and
Matthew G. Graff for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
H eAvicAN, 	c.J., 	WrigHt, 	coNNolly, 	gerrArd, 	StepHAN,
mccormAck , and miller-lermAN, JJ.
WrigHt, J.
NATURe OF CASe
Jimmel W. Fuller pled no contest to third degree assault;
driving under the influence, first offense; and driving dur-
ing suspension, second offense, in Lancaster County District
Court. The court accepted Fuller’s pleas, found him guilty,
and sentenced him to prison terms of 1 year, 30 days, and 90
days, respectively, to be served concurrently. The court also
revoked his operator’s license for 2 years beginning on the
date he is released from prison or placed on parole, whichever
is first.
SCOPe 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. State v. Davis, 277 Neb. 161, 762 N.W.2d
287 (2009).
[2] Statutory interpretation presents a question of law. When
reviewing questions of law, an appellate court has an obligation
to reach an independent conclusion irrespective of the determi-
nation made by the court below. State v. Dragoo, 277 Neb. 858,
765 N.W.2d 666 (2009).
586 	278 NeBRASKA RePORTS

FACTS
On April 8, 2008, Fuller caused an automobile accident in
Lincoln, Nebraska, by turning in front of another vehicle. The
driver of the other vehicle suffered bodily injury as a result of
the accident. Fuller fled the scene of the accident on foot but
was subsequently apprehended. It was then discovered that his
blood alcohol level was in excess of the legal limit for driv-
ing a motor vehicle and that he had been driving with a sus-
pended license.
Fuller was initially charged with leaving the scene of an
injury accident, a Class IIIA felony; driving under the influ-
ence, first offense, a Class W misdemeanor; and driving during
suspension, second offense, a Class II misdemeanor. Pursuant
to a plea agreement, the first charge was amended to third
degree assault, a Class I misdemeanor. He pled no contest and
was sentenced to terms of imprisonment of 1 year, 30 days,
and 90 days, respectively. The court ordered that these sen-
tences be served concurrently to each other, but consecutively
to the sentence Fuller was then serving on unrelated charges.
The court also revoked Fuller’s operator’s license for 2 years
in connection with the driving under the influence and driving
during suspension convictions and ordered the revocation to
commence upon Fuller’s release from prison or his placement
on parole, whichever came first.
Fuller timely appeals. Pursuant to Neb. Ct. R. App. P.
§ 2-111(e)(5)(a), no oral argument was allowed.
ASSIGNMeNTS OF eRROR
Fuller claims that the district court abused its discretion
by imposing excessive sentences. He also claims that the
court erred in ordering that his operator’s license revocation
not begin until his release from prison or until he is placed
on parole.
ANALYSIS
exceSSive SeNteNceS
Fuller claims that the district court abused its discretion in
sentencing him to prison instead of placing him on probation,
STATe v. FULLeR 	587
Cite as 278 Neb. 585

because he was already incarcerated on another offense. He
argues that because he was already in prison, the sentences did
not have a deterrent effect and did not strike the correct balance
between the protection of the public and Fuller’s rehabilita-
tive needs.
The court-ordered presentence investigation report details
Fuller’s lengthy criminal history, including robbery, three con-
victions for false information, three convictions for possession
of marijuana, possession of a stolen firearm, failure to appear,
three counts of failing to carry an operator’s license, driving on
the sidewalk, disorderly conduct, obstructing the administration
of law, open container, possession of a controlled substance,
assault, third degree domestic assault, suspended license, two
counts of violation of protection order, and driving during
revocation, second offense. He has served multiple jail terms,
and at the time of sentencing, he was incarcerated on charges
unrelated to those at issue in this case.
Fuller was found guilty of a Class I misdemeanor, a Class W
misdemeanor, and a Class II misdemeanor. A Class I misde-
meanor is punishable by up to 1 year’s imprisonment, a $1,000
fine, or both. Neb. Rev. Stat. § 28-106 (Reissue 2008). A Class
W misdemeanor, first offense, is punishable by up to 60 days’
imprisonment and a $500 fine. Id. A Class II misdemeanor is
punishable by up to 6 months’ imprisonment, a $1,000 fine, or
both. Id.
An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Davis, 277 Neb. 161, 762 N.W.2d 287
(2009). Fuller’s sentences are within these limits. Considering
the seriousness of the charges and Fuller’s extensive crimi-
nal history, the district court did not abuse its discretion in
imposing the sentences. This assignment of error is with-
out merit.
liceNSe revocAtioN
Fuller also claims that the language of Neb. Rev. Stat.
§ 60-4,108 (Reissue 2004) prohibits the district court from
ordering the mandatory 2-year operator’s license revocation
to begin upon his release from incarceration or placement
588 	278 NeBRASKA RePORTS

on parole, instead of the date that the court issued the order
of sentence.
The relevant portion of § 60-4,108 states that for individu-
als convicted of second and subsequent offenses of operating
a motor vehicle during any period that his or her operator’s
license is suspended, the court is to “order such person not
to operate any motor vehicle for any purpose for a period of
two years from the date ordered by the court and also order
the operator’s license of such person to be revoked for a like
period.” (emphasis supplied.) Fuller claims that the phrase
“from the date ordered by the court” is ambiguous because it
is not clear whether the sentence is to run from the date that
the court issued its sentencing order or from the date selected
by the court.
In State v. Nelson, 276 Neb. 997, 759 N.W.2d 260 (2009),
we considered the meaning of the phrase “from the date ordered
by the court” with regard to Neb. Rev. Stat. § 39-669.07 (Cum.
Supp. 1990) (now located at Neb. Rev. Stat. § 60-6,197.03(4)
(Cum. Supp. 2008)). Section 39-669.07 provided for a 15-year
license revocation period for individuals convicted of third-
offense driving under the influence and contained language
similar to § 60-4,108, ordering that a license revocation run
“from the date ordered by the court.” The defendant in Nelson
argued that because the sentencing order did not specify when
the 15-year revocation period began, it necessarily began on
the date he pled guilty to the charges and the court “ordered”
him to turn over his license while he was released on bail
before sentencing. He argued that the sentence began with his
condition of bail.
We held that the language “from the date ordered by the
court” referred to the date that the court ordered the 15-year
license revocation, and not from any other date of any other
order affecting the defendant’s license. State v. Nelson, supra.
Because the court in Nelson did not specify a date for the 15-
year period to begin, it necessarily began on the day the court
imposed the sentence and not before. Unlike Nelson, the court
in this case specified that Fuller’s license revocation is to begin
on either the date he is released from prison or the date he is
placed on parole, whichever is earlier.
STATe v. FULLeR 	589
Cite as 278 Neb. 585

The 	Nebraska 	Court 	of Appeals 	considered 	this 	issue
with regard to § 60-6,197.03 (Cum. Supp. 2006) in State v.
Lankford, 17 Neb. App. 123, 756 N.W.2d 739 (2008). Section
60-6,197.03 contained language similar to § 60-4,108, order-
ing that a license revocation run “from the date ordered by
the court.” Noting that the word “ordered” modifies “date,”
the Court of Appeals held that the revocation begins on the
date selected by the court in its sentencing order, and not
on the date that the court issues its sentencing order. State v.
Lankford, supra.
[3] Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are
plain, direct, and unambiguous. State v. Hense, 276 Neb. 313,
753 N.W.2d 832 (2008). As plainly stated in the language of
§ 60-4,108, a license revocation is to begin on the date that
is ordered by the court. Obviously, some drivers may not be
in a position to drive until they have served their sentence of
incarceration. Therefore, the court is given the discretion to
determine when the license revocation pursuant to § 60-4,108
is to begin, including after the completion of a period of
confinement. This is, in fact, what the court chose to do in
Fuller’s case.
[4] Although the rule of lenity requires a court to resolve
ambiguities in a penal code in the defendant’s favor, the touch-
stone of the rule of lenity is statutory ambiguity, and where the
legislative language is clear, a court may not manufacture ambi-
guity in order to defeat that intent. State v. Ramirez, 274 Neb.
873, 745 N.W.2d 214 (2008). Section 60-4,108 is not ambig-
uous. The language “from the date ordered by the court,” see
id., clearly means “from the date selected by the court,” giving
the district court the discretion to determine the beginning date
of the operator’s license revocation. Accordingly, this assign-
ment of error is without merit.
CONCLUSION
We conclude that the district court did not abuse its discre-
tion in sentencing Fuller to 1 year’s imprisonment and did
not err or abuse its discretion in ordering the 2-year license
590 	278 NeBRASKA RePORTS

revocation set forth in § 60-4,108 to begin when Fuller is
released from imprisonment or placed on parole. The judgment
of the district court is affirmed.
A ffirmed.
StAte of NebrASkA, Appellee , v.
mAuro yoS-cHiguil , AppellANt.
772 N.W.2d 574
Filed October 2, 2009. 	No. S-08-1329.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. Judgments: Statutes: Appeal and Error. To the extent an appeal calls for
statutory interpretation or presents questions of law, an appellate court must
reach an independent conclusion irrespective of the determination made by the
court below.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
4. ____: ____. If the court from which an appeal was taken lacked jurisdiction, the
appellate court acquires no jurisdiction.
5. Criminal Law: Sentences: Judgments. In a criminal case, the judgment is
the sentence.
6. Criminal Law: Pleas: Time: Proof. As a general rule, a defendant seeking to
withdraw a plea of guilty or no contest after he or she has been sentenced bears
the burden of showing by clear and convincing evidence that such withdrawal is
necessary to correct a manifest injustice. But as to such pleas entered after July
20, 2002, Neb. Rev. Stat. § 29-1819.02(2) (Reissue 2008) establishes a statutory
procedure whereby a convicted person may file a motion to have the criminal
judgment vacated and the plea withdrawn when the advisement required by
§ 29-1819.02(1) was not given and the conviction “may have the consequences
for the defendant of removal from the United States, or denial of naturalization
pursuant to the laws of the United States.”
7. Criminal Law: Pleas. Failure to give all or part of the advisement required
by Neb. Rev. Stat. § 29-1819.02(1) (Reissue 2008) regarding the immigration
consequences of a guilty or nolo contendere plea is not alone sufficient to entitle
a convicted defendant to have the conviction vacated and the plea withdrawn
pursuant to § 29-1819.02(2). The defendant must also allege and show that he
or she actually faces an immigration consequence which was not included in the
advisement given.
Appeal from the District Court for Buffalo County: JoHN p.
iceNogle, Judge. Affirmed.
STATe v. YOS-CHIGUIL 	591
Cite as 278 Neb. 591