State of Nebraska v. Lorenzo R. Montoya,

Lincoln, NE - Criminal defense attorney represented Lorenzo R. Montoya with appealing his jury conviction of refusal to submit to a chemical test with two prior convictions, a Class IIIA felony, and the conviction by the district court of refusal to submit to a preliminary breath test (PBT), a Class V misdemeanor charges.

In August 2018, two Lancaster County deputy sheriffs,

Daniel Sarnes and Samuel Bachman, received a dispatch

around 2:37 a.m. regarding a male slumped over the steering

wheel of a vehicle. Deputy Sarnes was the first law enforcement officer at the scene and was informed by medical personnel that they believed the driver, identified as Montoya, was

intoxicated. Deputy Sarnes, who was concerned Montoya was

not fit to drive, initiated contact with Montoya, who was still

in his vehicle. Deputy Sarnes asked Montoya for his driver's

license, his vehicle registration, and his proof of insurance

documents; Montoya did not have his driver's license in his

possession and had difficulty retrieving his other documents.

A short time later, Montoya refused Deputy Bachman's request

that Montoya take a PBT. Montoya was arrested for driving

under the influence of alcohol and was later charged with

count I, refusal to submit to a chemical test with two prior

convictions; count II, third-offense driving under the influence;

and count III, refusal to submit to a PBT.

Prior to trial, Montoya filed a motion to suppress evidence

related to the initial stop of his vehicle and the evidence seized

as a result of the stop. The aforementioned facts were adduced

at this hearing along with testimony from Deputies Sarnes

and Bachman.

Deputy Sarnes testified that the nature of the dispatch call

concerned a vehicle parked on the road with a male slumped

over the steering wheel, with no indication of his consciousness level. When Deputy Sarnes arrived at the scene, medical

personnel, who interacted with Montoya, informed Deputy

Sarnes that they believed Montoya was intoxicated. Because

Deputy Sarnes was concerned that Montoya was unable to

drive, he approached Montoya and asked for his documents,

which Montoya produced, after some difficulty, except for

his driver's license. Deputy Sarnes observed that Montoya's

vehicle was parked on the road within 2 feet of the grassy edge

of the gravel road.- 567 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. MONTOYA

Cite as 29 Neb. App. 563

Deputy Bachman recalled that around 2:37 a.m., a dispatch

call went out, and that the nature of the call was that a man was

slumped over the steering wheel of the vehicle. When Deputy

Bachman arrived on the scene at approximately 2:52 a.m.,

he saw Deputy Sarnes interacting with Montoya, so Deputy

Bachman approached the vehicle from the passenger side. He

observed one unopened "bottle of Fireball . . . the size of a

shooter” in the center console of the vehicle. Deputy Bachman

also noticed that Montoya had bloodshot, watery eyes, and he

smelled alcohol emanating from Montoya. After making these

observations, Deputy Bachman asked Montoya to complete the

horizontal gaze nystagmus test, the nine-step walk-and-turn

test, and the one-legged stand test. Deputy Bachman testified

that Montoya exhibited a level of impairment on all the tests,

which suggested he was under the influence of alcohol. Based

on Montoya's field sobriety test results, Deputy Bachman

requested that Montoya take a PBT, but Montoya refused.

Deputy Bachman testified that he believed Montoya was unable

to operate a motor vehicle because he was under the influence

of alcohol as demonstrated by his appearance and field sobriety

test results. Deputy Bachman also testified Montoya's vehicle

was stopped on the road but was not pulled off to the side of

the road.

After the hearing, the court concluded that notwithstanding

Montoya's argument that the deputies did not have reasonable

cause or articulable suspicion to stop or detain him, they did

have a duty and a right to investigate someone stopped on

the roadside in a manner similar to Montoya and that after

contacting Montoya, their determination he had been drinking

led to their investigation of him. In furtherance of this finding, the district court noted it had watched the video showing

the arrest of Montoya by the deputies and noted the location where Montoya's vehicle was parked on the road. The

court ultimately denied Montoya's motion to suppress in its

entirety.- 568 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. MONTOYA

Cite as 29 Neb. App. 563

Motions in Limine/Demand

for Jury Trial

Prior to trial, Montoya filed motions in limine to limit the

testimony of Deputies Sarnes and Bachman regarding the content of dispatch's call about Montoya's being slumped over his

steering wheel and portions of the video showing law enforcement's discussion thereof with Montoya. Montoya argued this

evidence should be limited because neither deputy had personal knowledge that Montoya was slumped over his steering

wheel and these statements constituted hearsay. The district

court denied the motions, explaining the dispatch call provided

information which the State could use to build its case.

Montoya filed a demand for a jury trial on count III, refusal

to submit to a PBT, which motion was denied by the district

court. The court explained that because there is no possibility

of a jail sentence on count III, the count should be treated like

an infraction, and that Montoya was not entitled to a jury trial

on that count.

Trial

In October 2019, a jury trial was held regarding count I,

refusal to submit to a chemical test with two prior convictions, and count II, third-offense driving under the influence.

Testimony was elicited from Deputies Sarnes and Bachman.

Deputy Sarnes' testimony was consistent with his testimony provided during the suppression hearing and set forth

above. He further explained that Montoya wore wristbands, the

kind commonly given out to bar patrons who are at least 21

years old; that Montoya told law enforcement he left Lincoln,

Nebraska, to return to his home in Crete, Nebraska, and

decided to take the gravel road to "see the surroundings”; and

that Montoya rejected the PBT by saying no and waving his

hand at the PBT device. The State also offered the video of the

stop of Montoya's vehicle, which was received by the district

court over Montoya's objection in the form of a renewal of his

motion in limine.- 569 -

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STATE v. MONTOYA

Cite as 29 Neb. App. 563

Deputy Bachman also testified in a manner consistent with

his testimony during the suppression hearing. When Deputy

Bachman testified regarding the dispatch call, Montoya interposed hearsay and confrontation objections, thereby renewing

his motion in limine, which the district court ultimately overruled. Deputy Bachman testified regarding the events leading

to Montoya's arrest and explained that after Montoya refused

the PBT, law enforcement arrested him on suspicion of driving

under the influence.

Deputy Bachman explained that following Montoya's arrest,

he asked Montoya to submit to a "DataMaster” breath test and

explained that refusing this test would constitute a separate

charge. Subsequent to this explanation, Montoya refused to

submit to a breath test.

Verdicts and Sentencing

The jury found Montoya guilty of count I, refusal to submit

to a chemical test, but not guilty of count II, driving under the

influence. The court found Montoya guilty of count III, refusal

to submit to a PBT. At an enhancement hearing, the court

determined count I was Montoya's third offense and sentenced

Montoya to 30 months' imprisonment followed by 12 months

of postrelease supervision and revoked Montoya's operator's

license for 15 years. The court ordered Montoya to pay a $100

fine for his conviction on count III.

ASSIGNMENTS OF ERROR

Montoya's assignments of error, consolidated and restated,

are that (1) the district court erred in denying his motion to

suppress, (2) the district court erred in denying his demand

for a jury trial on the misdemeanor charge, (3) the district

court erred in denying his motion in limine and permitting

the testimony at trial, (4) the evidence was insufficient to support his convictions, and (5) the sentence imposed on count I

was excessive.- 570 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. MONTOYA

Cite as 29 Neb. App. 563

STANDARD OF REVIEW

[1] 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 protections is a question of

law that an appellate court reviews independently of the trial

court's determination. State v. Shiffermiller, 302 Neb. 245, 922

N.W.2d 763 (2019).

[2] When a motion to suppress is denied pretrial and again

during trial on renewed objection, an appellate court considers

all the evidence, both from the trial and from the hearings on

the motion to suppress. Id.

[3] 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. Id.

[4] In reviewing a criminal conviction for a sufficiency of

the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An

appellate court does not resolve conflicts in the evidence, pass

on the credibility of witnesses, or reweigh the evidence; such

matters are for the finder of fact. State v. Smith, 302 Neb. 154,

922 N.W.2d 444 (2019). The relevant question for an appellate

court is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. Id.

[5,6] An appellate court will not disturb a sentence imposed

within the statutory limits absent an abuse of discretion by the

trial court. State v. Iddings, 304 Neb. 759, 936 N.W.2d 747

(2020). It is within the discretion of the trial court whether

to impose probation or incarceration, and an appellate court

will uphold the court's decision denying probation absent an - 571 -

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STATE v. MONTOYA

Cite as 29 Neb. App. 563

abuse of discretion. State v. Wills, 285 Neb. 260, 826 N.W.2d

581 (2013).

ANALYSIS

Denial of Motion to Suppress

Montoya first contends that the district court erred in denying his motion to suppress his detention, arrest, and the evidence seized therefrom because the deputies lacked reasonable

suspicion or probable cause to stop and ultimately arrest him.

[7] The Fourth Amendment to the U.S. Constitution prohibits

unreasonable searches and seizures. See State v. Hidalgo, 296

Neb. 912, 896 N.W.2d 148 (2017). The Nebraska Constitution

provides a similar protection. State v. Hidalgo, supra. The

execution of a search warrant without probable cause is unreasonable and violates constitutional guarantees. Id.

[8-11] An exception to the Fourth Amendment's warrant

requirement is the community caretaking exception. State v.

Shiffermiller, supra. The community caretaking exception provides that

"'[l]ocal police officers, unlike federal officers, frequently

investigate vehicle accidents in which there is no claim of

criminal liability and engage in what, for want of a better

term, may be described as community caretaking functions, totally divorced from the detection, investigation,

or acquisition of evidence relating to the violation of a

criminal statute.'”

State v. Shiffermiller, 302 Neb. 245, 258, 922 N.W.2d 763,

775 (2019). The Nebraska Supreme Court has outlined how to

apply the community caretaking exception, stating:

[T]he court should assess the totality of the circumstances surrounding the stop, including all of the objective observations and considerations, as well as the suspicion drawn by a trained and experienced police officer

by inference and deduction. If, based on the totality of

the circumstances, the seizing officer had a reasonable

basis to believe his assistance was necessary, the stop is - 572 -

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STATE v. MONTOYA

Cite as 29 Neb. App. 563

not unconstitutional. Thus, a search or seizure under the

community caretaking exception, like any other search or

seizure, is subject to the standard test of reasonableness.

It must be justified at its inception, based on specific

articulable facts which reasonably warrant the intrusion

into the individual's liberty, and it must be reasonably

related in scope to the circumstances which justified the

interference in the first place.

Id. at 259, 922 N.W.2d at 776.

The district court overruled Montoya's motion to suppress,

finding that the community caretaking exception justified the

deputies' stop and subsequent investigation of Montoya. While

recognizing the community caretaking exception can provide

the basis to stop and investigate a motorist without a warrant,

Montoya argues the exception did not apply here

because no evidence was adduced to show the reliability of the initial reported information. Although officers

were dispatched to a report that a male in the vehicle

was slumped over, Deputy Sarnes testified that he did

not take the names of any of the medical personnel at the

scene, did not speak with the initial reporting party, and

that at the time he arrived on the scene that [Montoya]

was awake.

Brief for appellant at 18. Montoya's argument is misplaced.

Law enforcement has the right to stop and investigate a

motorist under the community caretaking exception when the

specific articulable facts warrant the intrusion of an individual's liberty and then the intrusion reasonably relates to the

scope of circumstances which justified the interference. Here,

a citizen informant's tip, followed by the deputies' discovery

of the vehicle positioned as described by the informant with

medical personnel on the scene, justified responding to the

vehicle to determine whether the motorist was in need of care.

Stated differently, the report made through dispatch, taken

together with what the deputies found at the scene, presented

sufficient indicia of reliability to provide the deputies, based - 573 -

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STATE v. MONTOYA

Cite as 29 Neb. App. 563

upon the totality of the circumstances, with a reasonable basis

to believe their assistance was necessary and warranted the

initial interference. Contrary to Montoya's assertion, the deputies were not required to first interrogate the citizen informant

before rendering potential assistance to the motorist whom the

informant advised may be in need of assistance. Accordingly,

the stop of Montoya was not unconstitutional and the district

court did not err in denying Montoya's motion to suppress.

This assigned error fails.

Demand for Jury Trial

Second, Montoya contends the district court erred in denying his demand for a jury trial on count III, refusal to submit to

a PBT. See Neb. Rev. Stat. § 60-6,197.04 (Reissue 2010). We

note that the State concedes this argument in its brief.

On October 18, 2019, the State filed a motion to amend the

information, and later that day, Montoya filed a demand for a

jury trial under Neb. Rev. Stat. § 25-2705 (Reissue 2016). The

State filed the amended information on October 21, including

the count of refusal to submit to a PBT under § 60-6,197.04.

Montoya argues he had a right to file a demand for a jury trial

pursuant to § 25-2705. For clarity, Montoya is not arguing that

he had a constitutional right to a jury trial. Instead, he argues

that § 25-2705 provides him with a statutory right to a jury trial

for the allegations in count III and that the district court erred

in refusing to grant him a jury trial on that charge.

Montoya argues that although § 25-2705 applies to county

court, the statutory language in § 25-2705(2) suggests it applies

to charges of this nature in district court as well.

Section 25-2705 provides as follows:

(1) Either party to any case in county court, except

criminal cases arising under city or village ordinances,

traffic infractions, other infractions, and any matter arising under the Nebraska Probate Code or the Nebraska

Uniform Trust Code, may demand a trial by jury. In civil

cases, the demand shall be in writing and shall be filed

with the court:- 574 -

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STATE v. MONTOYA

Cite as 29 Neb. App. 563

(a) By a plaintiff on the date the complaint is filed with

the court;

(b) By a defendant on or before the date the answer is

filed with the court;

(c) By a counterclaimant on the date the counterclaim

is filed with the court;

(d) By a counterclaim defendant on or before the date

the reply to the counterclaim is filed with the court;

(e) By a third-party plaintiff on the date the third-party

complaint is filed with the court;

(f) By a third-party defendant on or before the date

the answer to the third-party complaint is filed with

the court;

(g) By a cross-claimant on the date the cross-claim is

filed with the court; and

(h) By a cross-claim defendant on or before the date

the answer to the cross-claim is filed with the court.

(2) All provisions of law relating to juries in the district

courts shall apply to juries in the county courts, and the

district court jury list shall be used, except that juries in

the county courts shall consist of six persons.

Contrary to Montoya's assertion, § 25-2705(2) provides that

laws relating to juries in district courts apply to juries in county

courts, not that the provisions of § 25-2705 should apply to district courts. The clear and unambiguous language of § 25-2705

provides that if a party is entitled to a jury trial in county court

under § 25-2705, then the statutes that govern juries in district

court shall apply to county court juries as well. This does not

mean that a party charged in district court is likewise afforded

the rights set forth in § 25-2705.

Montoya next argues that because under Neb. Rev. Stat.

§ 24-517(6) (Cum. Supp. 2020), the county court has concurrent original jurisdiction with the district court in any criminal matter classified as a misdemeanor, that provision should

somehow bootstrap the application of this county court right to

district court. Section 24-517(6) provides: "Concurrent original - 575 -

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STATE v. MONTOYA

Cite as 29 Neb. App. 563

jurisdiction with the district court in any criminal matter classified as a misdemeanor or for any infraction. The district

court shall have concurrent original jurisdiction in any criminal

matter classified as a misdemeanor that arises from the same

incident as a charged felony.” Although § 24-517(6) did provide the district court with jurisdiction over this criminal matter, we fail to see how that likewise incorporates the right to a

jury trial that extends only by statute to county court, and our

research has not revealed any such application. Because the

clear language of § 25-2705 would have provided Montoya a

right to a jury trial for a charge of this nature only in county

court and this matter was charged in district court, this assignment of error fails.

Motion in Limine

Third, Montoya argues the court erred in allowing Deputies

Sarnes and Bachman to testify that Montoya was slumped over

the steering wheel of his vehicle, because they did not show

they had personal knowledge of this fact. Montoya explains

that under Neb. Rev. Stat. § 27-602 (Reissue 2016), a witness may testify only to matters of which he or she has personal knowledge.

Before discussing the issue of whether the deputies had personal knowledge to testify that Montoya was slumped over the

wheel of the vehicle, we note that this issue was first addressed

in Montoya's motions in limine. The district court denied his

motions in limine regarding evidence adduced from Deputies

Sarnes and Bachman, including the contents of the initial dispatch call that the driver of the vehicle was "slumped over at

the wheel.” At trial, Montoya properly renewed his motions,

which the district court denied.

Montoya argues that the district court erred in permitting

Deputies Sarnes and Bachman to testify that Montoya was

slumped over the steering wheel, "because no evidence was

presented and the State heard from no witnesses who corroborated the information.” Brief for appellant at 21. The basis of

Montoya's argument is that the deputies' testimony violated - 576 -

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STATE v. MONTOYA

Cite as 29 Neb. App. 563

§ 27-602, which provides: "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to

prove personal knowledge may, but need not, consist of the

testimony of the witness himself.”

Although § 27-602 does require a witness to have personal

knowledge of a matter to which he or she testified, it does

not apply in the context posed by Montoya here. Contrary to

Montoya's assertion, neither deputy testified that Montoya

was slumped over the steering wheel. During Deputy Sarnes'

testimony, the State asked, "What was the nature of this dispatch call?” to which he replied, "I was dispatched to a red

SUV parked on the side of the road with one male slumped

over.” Later, during redirect, Deputy Sarnes agreed that he was

dispatched to check on a male slumped over a steering wheel.

Similarly, during Deputy Bachman's testimony, the State

asked, "What was the nature of the dispatch that you received

at 2:37 a.m. on August 26th of 2018?” to which he replied, "It

was for a male parked on the roadway that was slumped over

the steering wheel of the vehicle.” Both deputies' testimony

clearly states that the deputies were testifying to the nature of

the dispatch call. Thus, both deputies demonstrated they had

personal knowledge of the nature of dispatch's call, and this

testimony complies with the requirement in § 27-602. And, as

we noted in the previous section of this opinion, that testimony

was relevant, as it provided notice to the deputies, which triggered the community caretaking response. Accordingly, this

error fails.

Sufficiency of Evidence

[12] Montoya next contends that there was insufficient

evidence to sustain his convictions for refusal to submit to a

chemical test under Neb. Rev. Stat. § 60-6,197 (Cum. Supp.

2020) and refusal to submit to a PBT under § 60-6,197.04.

The elements of § 60-6,197 are

(1) the defendant was arrested for an offense arising out

of acts alleged to have been committed while he or she - 577 -

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STATE v. MONTOYA

Cite as 29 Neb. App. 563

was driving or in actual physical control of a motor vehicle while under the influence of alcoholic liquor or drugs;

(2) a peace officer had reasonable grounds to believe the

defendant was driving or in actual physical control of

a motor vehicle in this state while under the influence

of alcohol or drugs; (3) the peace officer required the

defendant to submit to a chemical test of his or her blood,

breath, or urine to determine the concentration of alcohol

or the presence of drugs; (4) the defendant was advised

that his or her failure to submit to a chemical test of his

or her blood, breath, or urine is a separate offense for

which he or she could be charged; and (5) the defendant

refused to submit to a chemical test as required by the

peace officer.

State v. Rothenberger, 294 Neb. 810, 828, 885 N.W.2d 23,

36 (2016). Refusing to submit to a PBT is governed by

§ 60-6,197.04, which provides that

any person who operates or has in his or her actual

physical control a motor vehicle in this state [may be

required] to submit to a [PBT] for alcohol concentration if the officer has reasonable grounds to believe that

such person has alcohol in his or her body, has committed a moving traffic violation, or has been involved in

a traffic accident. Any person who refuses to submit to

such [PBT] or whose [PBT] results indicate an alcohol

concentration in violation of section 60-6,196 shall be

placed under arrest.

Of the five elements needed to establish the crime of refusal

to submit to a chemical test, Montoya contends the State

failed to establish one of those elements, specifically that

law enforcement officers had reasonable grounds to believe

Montoya was driving or in actual physical control of a motor

vehicle while under the influence of alcohol at the time of

his arrest. Regarding his conviction for refusing to submit to

a PBT, Montoya argues that there was insufficient evidence

to establish he was operating or in the actual physical control - 578 -

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STATE v. MONTOYA

Cite as 29 Neb. App. 563

of the vehicle, and to establish the reasonableness of the deputies' belief that he had been consuming alcohol.

It is well established that in reviewing a criminal conviction

for a sufficiency of the evidence claim, whether the evidence

is direct, circumstantial, or a combination thereof, the standard

is the same: An appellate court does not resolve conflicts in the

evidence, pass on the credibility of witnesses, or reweigh the

evidence; such matters are for the finder of fact. The relevant

question for an appellate court is whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. State v. Stack, 307 Neb.

773, 950 N.W.2d 611 (2020); State v. Martinez, 306 Neb. 516,

946 N.W.2d 445 (2020).

Montoya alleges that there was insufficient evidence to

establish the element under § 60-6,197 that the deputies "had

reasonable grounds to believe [Montoya] was driving or in

actual physical control of a motor vehicle . . . while under the

influence of alcohol,” see State v. Rothenberger, 294 Neb. at

828, 885 N.W.2d at 36, and the element under § 60-6,197.04

that Montoya was "operat[ing] or [had] in his . . . actual physical control a motor vehicle [and] the [deputies had] reasonable grounds to believe that [Montoya had] alcohol in his . . .

body.” The deputies testified that Montoya informed them he

was in his vehicle because he had been traveling from Lincoln

to Crete; that they detected the odor of alcohol coming from

Montoya; and that Montoya wore wristbands commonly given

out to bar patrons, had an unopened alcohol container in

the vehicle, and admitted to law enforcement he was found

"passed out” behind the wheel of his vehicle. Montoya performed poorly on the field sobriety tests. Further, both deputies testified that Montoya was in his vehicle alone when they

arrived on the scene. Deputy Bachman testified that when he

arrived on the scene, he observed Deputy Sarnes speaking

with a male inside the vehicle. Deputy Bachman approached

the vehicle and observed an unopened "bottle of Fireball” in - 579 -

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STATE v. MONTOYA

Cite as 29 Neb. App. 563

the middle console of the vehicle and also saw that Montoya's

eyes were bloodshot, and he testified that Montoya smelled

of alcohol.

Based upon this evidence, there was sufficient evidence

to support Montoya's convictions for refusal to submit to a

chemical test and refusal to submit to a PBT. Accordingly, this

assigned error fails.

Excessive Sentence

Montoya's last assigned error is that the district court erred

in imposing an excessive sentence by not tailoring the sentence

on count I to fit Montoya. He asserts that the sentence of 30

months' imprisonment is greater than what is necessary for

the protection of the public, the gravity of the offense, and

Montoya's rehabilitative needs.

Montoya was convicted of a Class IIIA felony. He was sentenced to 30 months' imprisonment with 6 days' credit for time

served and had his license revoked for 15 years. Montoya's

sentence is within the statutory sentencing range for Class IIIA

felonies, which are punishable by 0 to 3 years' imprisonment

followed by 9 to 18 months' postrelease supervision if imprisonment is imposed, a $10,000 fine, or both. See Neb. Rev. Stat.

§ 28-105 (Reissue 2016).

[13,14] An appellate court will not disturb a sentence

imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Manjikian, 303 Neb. 100, 927

N.W.2d 48 (2019). Regarding criminal sentences, the Nebraska

Supreme Court has explained:

When imposing a sentence, the sentencing court is

to consider the defendant's (1) age, (2) mentality, (3)

education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding

conduct, and (6) motivation for the offense, as well as

(7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime. However,

the sentencing court is not limited to any mathematically applied set of factors. The appropriateness of a - 580 -

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STATE v. MONTOYA

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sentence is necessarily a subjective judgment and includes

the sentencing judge's observation of the defendant's

demeanor and attitude and all the facts and circumstances

surrounding the defendant's life.

Id. at 114-15, 927 N.W.2d at 60-61.

Montoya's presentence investigation report shows he has

a criminal record, which includes convictions including driving under suspension, third-offense driving under the influence, and multiple convictions for possession of a controlled

substance.

During the sentencing hearing, the district court considered

relevant factors in imposing Montoya's sentence and was not

limited to a mathematical set of factors. At the sentencing

hearing, the district court noted it had reviewed Montoya's

presentence investigation report and considered the facts that

many people are killed by drunk drivers each year and that he

was convicted of refusing to take a chemical test with two prior

convictions, which is a significant felony. Based on the factors

considered by the court on the record before pronouncing the

sentence, we cannot say the court abused its discretion in rendering the sentence here. This assignment fails.

For the reasons previously outlined, we affirm Montoya’s

convictions and sentence