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State v. Tucker12/21/2001
rawers. Additionally, all three officers testified that Tucker did not object or try to stop the officers from continuing the search despite his stated belief that, by the officer agreeing to stay at his elbow, it meant that the officers would conduct only a visual search.
Thus, under the circumstances present in this case, we conclude that it was objectively reasonable for the officers to determine that the scope of consent given by Tucker covered the drawers, cabinets, and other places where illegal contraband could be hidden. See U.S. v. Rich, 992 F.2d 502 (5th Cir. 1993).
Excessive Sentence
[13-15] In his second assignment of error, Tucker argues that the trial court erred by imposing an excessive sentence. According to State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001), an appellate court will not disturb sentences within statutory limits unless the district court abused its discretion in establishing the sentences. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result. State v. Gutierrez, 260 Neb. 1008, 620 N.W.2d 738 (2001). Additionally:
In imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime. State v. Urbano, 256 Neb. 194, 216, 589 N.W.2d 144, 159 (1999), citing State v. Chojolan, 253 Neb. 591, 571 N.W.2d 621 (1997).
In considering a sentence, a court is not limited in its discretion to any mathematically applied set of factors. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observations of the defendant's demeanor and attitude and all of the facts and circumstances surrounding the defendant's life. State v. Kunath, 248 Neb. 1010, 540 N.W.2d 587 (1995).
Tucker is 42 years old; has been using marijuana since he was 15 years old, together with other drugs; has had five driving under the influence convictions; and has been in prison three times on five different drug charges. Tucker has been arrested approximately 30 times in his adult life.
We thus conclude that through an assessment of the factors discussed in State v. Urbano, supra, the trial court did not abuse its discretion when it sentenced Tucker to two consecutive prison terms of 15 to 30 months each.
CONCLUSION
Based on the above, we determine that the trial court's decision to overrule Tucker's motion to suppress was correct. We further conclude that the trial court did not abuse its discretion in sentencing Tucker. We thus affirm the ruling of the trial court on the motion to suppress and the sentences imposed.
Affirmed.
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