State v. Molina: Plain Error in DUI Enhancement and the Limits of the Invited Error Doctrine

I. Introduction

In State v. Molina, 320 Neb. 544 (Dec. 19, 2025), the Nebraska Supreme Court vacated a third-offense DUI sentence because the record at resentencing contained no evidence of the defendant's prior DUI convictions. The court held that enhancing a DUI sentence to a third offense without record proof or stipulation of prior convictions is plain error—an error so fundamental that an appellate court must correct it even if it was not properly raised below. Critically, the court also rejected the State’s argument that the invited error doctrine barred relief, clarifying that a defendant's mistaken agreement with a trial court’s misrecollection of the record does not amount to "inviting" the error.

The decision reinforces two important themes in Nebraska criminal law:

• Appellate courts have both the authority and the responsibility to correct illegal or improperly enhanced sentences as plain error.
• The invited error doctrine must be applied narrowly and does not shield sentences that rest on a non-existent evidentiary foundation.

This commentary examines the factual and procedural background of the case, the Supreme Court’s reasoning, its use of precedent, and the decision’s implications for DUI enhancement practice, appellate review, and the doctrine of invited error in Nebraska.

II. Background and Procedural History

A. Underlying Incident

Police responded to a noise complaint and found Cristian E. Gonzalez Molina asleep in the driver’s seat of a running vehicle. The car was parked parallel to a public street, with two tires in a driveway and two touching the street. Officers observed an odor of alcohol and obtained an admission from Molina that he had been drinking earlier. A breath test showed a blood alcohol content of 0.127. Molina was arrested and ultimately charged (in a second amended complaint) with DUI, third offense.

B. First Plea and Sentencing (February 9, 2023)

At a February 9, 2023 county court hearing, Molina pled no contest. The court accepted the plea, received several exhibits, and later sentenced him. The specifics of that hearing are not in the bill of exceptions, but a journal entry shows the plea was accepted and exhibits received.

On appeal, the district court vacated the sentence and remanded, holding that the county court had not properly elicited a plea. Thus, the case returned to county court for a new plea hearing and resentencing.

C. Second Plea Hearing (September 29, 2023)

On remand, the county court held a new plea hearing. The key issue was whether exhibits introduced in the original proceeding needed to be reintroduced:

• The court initially said they should be reoffered.
• Defense counsel agreed, and specifically stated that he did not want to waive anything.
• The parties reintroduced exhibits 1, 2, 3, and 7.
• Exhibit 7 replaced a missing prior exhibit (4) from the first proceeding.

Crucially, exhibits 5 and 6—apparently containing evidence of Molina’s prior DUI convictions—were not reoffered. The following exchange occurred:

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 State would re-offer [exhibits] 5 and 6 for enhancement.

Thus, everyone agreed that proof of prior convictions would be addressed, if at all, at a later enhancement and sentencing hearing. Molina again pled no contest; the court took the matter under advisement.

D. Enhancement and Sentencing Hearing (October 26, 2023)

At the October 26, 2023 hearing, the county court found Molina guilty of DUI and proceeded to sentencing. Before sentencing, the court raised the issue of enhancement:

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 shared assumption was wrong. The State had not reoffered exhibits 5 and 6 at the second plea hearing, and they were not introduced at the sentencing hearing. They were also absent from the appellate record. Despite this, the court treated Molina as a third-offense DUI offender and imposed:

• 36 months’ probation;
• A 5-year license revocation, including a 45-day no-driving period and ignition interlock requirement;
• A $1,000 fine; and
• 30 days in jail (with the possibility of house arrest).

E. District Court Appeal

Molina appealed to the district court, arguing:

1. The plea was invalid due to an insufficient factual basis; and
2. The sentence was excessive.

The district court:

• Rejected the challenge to the plea as “frivolous and devoid of merit,” emphasizing that Molina had been fully advised and admitted the factual basis.
• Found the sentence within statutory limits and not based on impermissible factors.

It therefore affirmed the county court judgment.

F. Court of Appeals Decision

On further appeal to the Nebraska Court of Appeals, Molina reframed his argument and assigned error that:

1. His sentence was excessive because there was no proof in the record of his prior convictions; and
2. Even if prior convictions existed, the circumstances (vehicle partly on a private driveway) warranted a shorter license revocation.

The Court of Appeals:

1. Refused to address the “prior convictions” contention as a sentencing challenge. It characterized that issue as an attack on “enhancement” rather than sentencing. Because Molina had not raised enhancement issues in his statement of errors to the district court, the Court of Appeals held that he could not raise them for the first time on appeal.
2. Applied the invited error doctrine. It reasoned that any lack of evidence of prior convictions resulted from defense counsel’s statements, which “induced the court to forego the reintroduction of the exhibits.” Accordingly, it held that Molina had invited the error and could not complain.
3. Rejected the “driveway” argument. Relying on Neb. Rev. Stat. §§ 60‑6,197.03(4), 28‑106, and 60‑6,196(1), the Court of Appeals concluded that the sentence fell within statutory limits and that the location of the car (partially on a driveway) did not lessen Molina’s culpability because he was in “actual physical control” of the vehicle.

The Court of Appeals therefore affirmed the district court.

G. Nebraska Supreme Court Review

Molina petitioned for further review, which the Nebraska Supreme Court granted pursuant to Neb. Rev. Stat. § 24‑1107. The court requested supplemental briefing on a particular procedural issue:

whether, during a new sentencing proceeding, the State must produce evidence to establish facts that were established during the original sentencing proceeding.

Ultimately, the Supreme Court did not reach that question, because it found dispositive plain error in the imposition of a third-offense DUI sentence without any record evidence of prior convictions.

III. Summary of the Supreme Court’s Holding

The Nebraska Supreme Court:

• Found plain error on the face of the record, because:
  • Molina was sentenced as a third-offense DUI offender;
  • There were no exhibits or stipulations in the record establishing any prior DUI convictions; and
  • A sentence based on unproven prior convictions is contrary to the court’s statutory authority.
• Held that the Court of Appeals “plainly erred” in affirming a third-offense DUI sentence without any evidentiary basis for enhancement.
• Rejected the invited error argument, concluding that:
  • Defense counsel’s mistaken statement that he “thought” the prior convictions had been offered, followed by the court’s own affirmation, did not amount to Molina “inviting” the enhancement error.
  • The invited error doctrine did not preclude correction of this illegal enhancement.
• Vacated the sentence and remanded the case with directions for a new enhancement and sentencing hearing in the county court (through the district court and Court of Appeals), following the remedy framework in State v. Valdez.

Because the sentence itself was invalid for lack of a factual foundation for enhancement, the court did not reach Molina’s arguments about excessiveness of the sentence or the driveway location, nor did it decide whether prior-conviction evidence from the first proceeding had to be reintroduced at resentencing.

IV. Analysis

A. Precedents and Authorities Cited

1. Plain Error Line of Cases

• State v. Childs, 309 Neb. 427, 960 N.W.2d 585 (2021) Quoted for the standard that an appellate court may find plain error when an unasserted error, plainly evident from the record, prejudicially affects a litigant’s substantial right and, if left uncorrected, would damage the integrity, reputation, and fairness of the judicial process.
• In re Interest of Justine J. & Sylissa J., 288 Neb. 607, 849 N.W.2d 509 (2014) Reiterates that plain error is error “plainly evident from the record” and of such a nature that leaving it uncorrected would undermine the integrity, reputation, or fairness of the judicial process.
• Kellogg v. Mathiesen, 320 Neb. 223, 26 N.W.3d 651 (2025) Cited for two propositions:
  • An appellate court is not constrained by the specific arguments raised in the briefs when reviewing for plain error.
  • An appellate court is not required to consider every error that may have occurred; reviewing for plain error is discretionary.
• State v. Roth, 311 Neb. 1007, 977 N.W.2d 221 (2022) Cited for:
  • Plain-error review is discretionary.
  • A sentence that is contrary to the court’s statutory authority is an appropriate matter for plain error review.

State v. Molina relies heavily on these cases to frame sentencing based on unproven prior convictions as the sort of fundamental defect that justifies sua sponte correction by an appellate court.

2. Invited Error Doctrine Cases

• State v. Space, 312 Neb. 456, 980 N.W.2d 1 (2022) Provides the core rule for the invited error doctrine: a criminal defendant may not take advantage of an alleged error that he or she induced or invited the trial court to commit.
• Schaneman v. Wright, 238 Neb. 309, 470 N.W.2d 566 (1991) States the general principle that one who invites error cannot later be heard to complain of it. Molina uses this case to acknowledge the doctrine generally, while explaining why it does not apply on these facts.

3. DUI Enhancement Remedy

• State v. Valdez, 305 Neb. 441, 940 N.W.2d 840 (2020) Cited for the appropriate remedy where enhancement of a DUI sentence is flawed. The court quotes Valdez:

  in the context of . . . enhancement of a DUI sentence . . . the appropriate remedy is to remand for another enhancement hearing.

  Molina follows this blueprint by vacating the sentence and remanding for a new enhancement and sentencing hearing, rather than outright imposing a lesser (first-offense) sentence.

4. Statutory Provisions

• Neb. Rev. Stat. § 60‑6,196 (Reissue 2021) Defines DUI by requiring that a person be in “the actual physical control of any motor vehicle” while intoxicated. Used by the Court of Appeals, and implicitly accepted by the Supreme Court, to reject any suggestion that being partially on a driveway removes the conduct from the statute’s reach.
• Neb. Rev. Stat. § 60‑6,197.02(3) (Reissue 2021) Governs findings concerning prior convictions for purposes of DUI sentence enhancement. Molina emphasizes that it is not enough for a court to make a finding; there must be “a record produced that could have supported such a finding.” The absence of evidence under this statute is what makes the enhancement illegal.
• Neb. Rev. Stat. § 60‑6,197.03(4) (Reissue 2021) and § 28‑106 (Reissue 2016) Referenced by the Court of Appeals for the applicable penalty ranges, but the Supreme Court does not rely on them once it determines the enhancement itself was invalid.
• Neb. Rev. Stat. § 24‑1107 (Reissue 2016) Cited for the Supreme Court’s authority to grant further review from the Court of Appeals.

B. The Court’s Legal Reasoning

1. Framing the Case as Plain Error

Although Molina presented his claims as assignments of excessive sentencing and misapplication of the invited error doctrine, the Supreme Court recasts the core problem as plain error in sentencing: the county court imposed a third-offense DUI sentence without any evidentiary basis for prior convictions.

The court restates the classic Nebraska definition of plain error:

• Error plainly evident from the record;
• Not complained of at trial (or not properly preserved);
• Prejudicially affects a substantial right; and
• If uncorrected, would damage the integrity, reputation, or fairness of the judicial process.

The opinion emphasizes:

• Appellate courts are not bound by the parties’ framing of the issues when plain error is present.
• They need not search the entire record for error but have discretion to correct a plainly illegal sentence when it appears.

Here, the plain error is obvious: the record contains no prior-conviction evidence, yet the sentence is for a third-offense DUI. Under Roth, a sentence contrary to statutory authority is suitable for plain error review, and enhancing a sentence without the statutorily required proof of priors fits squarely within that category.

2. Absence of Record Proof of Prior Convictions

The decisive factual point is narrow but critical:

• Exhibits 5 and 6—containing the alleged prior DUI convictions—were never reoffered after the case was remanded for a new plea and resentencing.
• The State expressly stated it would reoffer them at the enhancement hearing, but did not actually do so.
• These exhibits are absent from the appellate record, and the State conceded as much at briefing and oral argument.

The Supreme Court therefore holds:

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. As such, it matters not whether a Neb. Rev. Stat. § 60‑6,197.02(3) 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.

In other words, even if the trial judge purported to “find” that Molina had prior convictions, the finding is legally meaningless absent supporting evidence or a clear stipulation on the record.

Given that:

• Molina’s prior convictions were not proved at the resentencing proceeding;
• There is no stipulation of record to prior convictions; and
• The record from the earlier (vacated) proceedings does not provide the necessary basis (or, at minimum, is not part of the new proceeding's record),

the court concludes Molina could not lawfully be sentenced as a third-offense DUI offender. That illegality is the plain error justifying reversal.

3. Enhancement vs. Sentencing: The Court of Appeals’ Misstep

The Court of Appeals had sidestepped the issue by characterizing Molina’s complaint as a belated challenge to enhancement, holding that because he had not raised “enhancement issues” before the district court, he could not raise them on appeal.

The Supreme Court effectively rejects this formalistic distinction. Whether one labels the defect as an “enhancement issue” or a “sentencing issue,” the dispositive point is that:

• The sentence actually imposed rests on facts (prior convictions) that were never proven at the proceeding from which that sentence arose.
• This makes the sentence one for which the trial court lacked statutory authority.

By treating this as plain error, the Supreme Court makes clear that a defendant’s failure to spotlight “enhancement” as a separate argument does not shield an illegal sentence from appellate correction.

4. The Invited Error Doctrine: Why It Does Not Apply

The State argued—and the Court of Appeals agreed—that Molina’s counsel had “invited” the error by stating at the enhancement hearing:

[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 county court responded, “He did,” and defense counsel replied, “So, they’ve been received.” Based on this, the Court of Appeals held that defense counsel’s statements “induced the court to forego the reintroduction of the exhibits” and that invited error barred Molina’s challenge.

The Supreme Court disagrees. It acknowledges the general rule (from Space and Schaneman) that a defendant cannot profit from error he invited, but concludes:

• This was not a tactical maneuver by the defense designed to induce an error; it was a mutual mistake between the court and counsel about what the record contained.
• The defendant did not “lead” the court into error; at most, he failed to correct the court’s misunderstanding.

The court states:

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.

Two important corollaries flow from this:

1. Trial courts bear primary responsibility for ensuring that any factual basis for sentence enhancement is actually in the record. A defendant’s misplaced trust in the court’s recollection does not excuse an evidentiary vacuum.
2. The invited error doctrine remains a narrow bar, applicable where a defendant actively engineers or affirmatively agrees to a specific ruling or procedure later challenged, not where counsel casually shares a mistaken assumption about the existing state of the record.

By limiting the scope of invited error, the court ensures that this doctrine does not become a tool for insulating plainly illegal sentences from review.

5. Remedy: Remand for a New Enhancement and Sentencing Hearing

Relying on Valdez, the court holds that the proper remedy for an invalid DUI enhancement is not simply reducing the conviction to a first-offense DUI, but:

• Vacating the sentence; and
• Remanding for a new enhancement and sentencing hearing to allow the State an opportunity, consistent with due process, to prove prior convictions properly.

This approach balances:

• The defendant’s right not to be punished based on unproven prior convictions; and
• The State’s legitimate interest in using valid prior convictions to enhance punishment, so long as they are proven in accordance with statutory and constitutional requirements.

The Supreme Court thus orders the Court of Appeals to reverse the district court and remand to the county court for that limited purpose.

Significantly, because it resolves the case on plain error grounds, the court expressly declines to reach the earlier-posed question:

whether, during a new sentencing proceeding, the State must produce evidence to establish facts that may have been established during the original sentencing proceeding.

That question remains open for future clarification.

C. Impact and Implications

1. Consequences for DUI Enhancement Practice

The most direct impact is on how prosecutors and trial courts handle repeat-offender DUI enhancements, especially after a remand:

• Proof of prior convictions is indispensable. A court cannot enhance a DUI sentence based on “priors” unless:
  • Certified records or equivalent competent evidence of prior convictions are introduced and received into evidence, or
  • The defendant clearly and unequivocally stipulates to the existence of specific prior convictions on the record.
• Remand resets the evidentiary posture. Even if prior convictions were proved at an earlier, vacated sentencing, the State and trial court cannot assume that proof automatically carries over. If the exhibits are not in the new record—or are missing altogether—the enhancement cannot stand.
• Administrative vigilance is required. County courts must meticulously verify, at each enhancement proceeding, that:
  • All enhancement exhibits are actually present and received;
  • Prior convictions match statutory requirements for enhancement (e.g., DUI vs. other traffic offenses); and
  • The record is complete for appellate review.

For DUI practitioners, Molina is a strong reminder that enhancement is not a formality but a separate, evidentiary-driven stage that must comply with statutory rules.

2. Strengthening Appellate Oversight of Illegal Sentences

Molina reinforces the Nebraska appellate courts’ role in policing illegal or unauthorized sentences:

• Even where a defendant fails to properly present an “enhancement issue” in the lower appellate court, the Supreme Court may still correct a blatantly illegal sentence as plain error.
• Appellate courts are not captive to how litigants label their assignments of error; if an illegal sentence is apparent from the record, they have authority—and, implicitly, a duty—to address it.

This promotes systemic fairness and uniformity in sentencing, particularly for frequently recurring offenses like DUI, where enhancement errors may have significant liberty and collateral consequences.

3. Clarifying the Limits of Invited Error in Sentencing

The invited error doctrine could, if applied broadly, allow serious injustices to persist when defense counsel missteps. Molina confirms that Nebraska courts will:

• Confine invited error to cases in which the defendant actively induces or strategically seeks the very ruling later challenged; and
• Not use the doctrine to shield structural or fundamental defects, especially where the trial court bears primary responsibility (such as ensuring a lawful basis for enhancement).

In sentencing contexts, this means:

• A defendant’s or counsel’s offhand agreement with a judge’s mistaken understanding of the record is not enough to invoke invited error to bar plain error review of an illegal sentence.
• Courts must still independently verify the existence of an evidentiary foundation for enhancements, regardless of counsel’s assumptions.

4. Practical Lessons for Defense Counsel

While Molina ultimately benefits the defendant, it also contains practical lessons for defense attorneys:

• Defense counsel should:
  • Closely monitor what exhibits are actually offered and received at each stage; and
  • Be cautious about affirmatively representing that certain exhibits are in the record unless they are sure.
• Even so, Molina provides some reassurance that:
  • Not every misstatement by defense counsel will be weaponized as “invited error” to preserve an illegal sentence.
  • Where the trial court clearly shares or leads the misunderstanding, the responsibility does not fall solely on defense counsel’s shoulders.

In close cases, however, defense counsel should object or request clarification when the court references prior convictions that do not appear to be supported by the record.

5. Unresolved Question About Re-Proving Priors After Remand

The Court’s order for supplemental briefing signals that a significant procedural issue remains unresolved in Nebraska law:

When a sentence is vacated and the case is remanded for resentencing or a new enhancement hearing, must the State re-prove prior convictions that were already established in the original proceeding, or can the court rely on the prior record?

Because Molina turned on the complete absence of prior-conviction evidence in the new record, the court found it unnecessary to decide that broader question. Its eventual resolution will affect:

• How much of the prior record “carries over” after a vacatur; and
• Whether the State must, as a matter of constitutional or statutory law, reintroduce enhancement evidence every time a case returns to the trial court for resentencing.

Until that issue is definitively resolved, Molina strongly encourages prosecutors to err on the side of reoffering prior-conviction evidence on remand.

V. Complex Concepts Simplified

1. What Is “Plain Error”?

Plain error is a special type of mistake in a court case:

• It is a clear mistake that shows up directly from the court record.
• The parties did not properly raise or argue it in the trial court.
• If left uncorrected, it would seriously undermine fairness or the public’s confidence in the justice system.

In Molina, the plain error was that the trial court punished Molina as a third-time DUI offender without any evidence in the record that he had prior DUI convictions.

2. What Is DUI Enhancement (e.g., “Third Offense”)?

In Nebraska, DUI penalties increase with each prior conviction within a specified time frame. A “third offense” DUI means:

• The defendant has at least two prior DUI convictions that count for enhancement purposes.
• The law authorizes more severe penalties—including longer license revocation, higher fines, and potentially more jail time—than for a first-offense DUI.

To use prior convictions to increase a sentence, the State must prove those priors (through certified records or other competent evidence) or the defendant must formally admit them on the record. It is not enough for everyone simply to assume that prior convictions exist.

3. What Is “Enhancement and Sentencing”?

In practice, felony and repeat-offender sentencing in Nebraska often occurs in two conceptually separate steps:

1. Conviction: the court finds the defendant guilty of the basic offense (here, DUI).
2. Enhancement and sentencing: the court determines whether any proven prior convictions permit a higher penalty and then imposes an appropriate sentence within the enhanced range.

An “enhancement hearing” is where the court decides whether the defendant has qualifying prior convictions. Without proof of priors, the court cannot legally sentence as a “third offense.”

4. What Is the Invited Error Doctrine?

The invited error doctrine says:

• If a party asks the court to do something, or agrees that the court should do something, that party generally cannot later complain that the court erred by doing exactly that.

For example, if defense counsel requests a certain jury instruction and the court gives it, the defendant usually cannot appeal claiming that instruction was wrong.

In Molina, the Supreme Court found that:

• Defense counsel’s mistaken belief that prior convictions had already been offered did not amount to inviting the court to enhance the sentence without proof.
• Instead, it was a shared misunderstanding, and the court still had the responsibility to ensure the record supported enhancement.

5. What Does “Actual Physical Control of a Motor Vehicle” Mean?

Under Neb. Rev. Stat. § 60‑6,196(1), a person commits DUI if they are in “the actual physical control of any motor vehicle” while intoxicated. This:

• Does not require that the vehicle be moving.
• Is satisfied if the defendant is in a position to start and operate the vehicle (for example, seated behind the wheel in a running car).

In Molina, the fact that the vehicle was partially on a private driveway did not remove it from the statute’s reach because:

• The engine was running; and
• Molina was in a position to drive (actual physical control).

6. The Nebraska Appellate Path in This Case

The procedural path illustrates Nebraska’s multi-layered appellate system:

1. County Court: original DUI plea, enhancement, and sentencing.
2. District Court (as an appellate court): heard Molina’s first and second appeals from county court, vacated the first sentence, and affirmed the second.
3. Court of Appeals: reviewed the district court’s second decision and affirmed.
4. Supreme Court: granted further review and, on plain error grounds, vacated the sentence and remanded for a new enhancement and sentencing hearing.

VI. Conclusion

State v. Molina delivers a clear message: Nebraska courts cannot enhance a DUI sentence to a third offense without a solid evidentiary foundation for prior convictions in the record of the proceeding that yields the sentence. Where such a defect appears, appellate courts have both the power and the obligation to correct it as plain error, regardless of how the defendant has framed his appellate assignments.

The decision also sharply limits the reach of the invited error doctrine, holding that a defendant’s mistaken acceptance of the court’s belief about the record does not amount to inviting an illegal enhancement. Responsibility for ensuring that enhancement is properly supported by evidence remains with the trial court and the State.

By vacating Molina’s sentence and ordering a new enhancement and sentencing hearing, the Nebraska Supreme Court reinforces the principle that:

• Sentences must be grounded in lawful, proven facts;
• Enhancement is a serious, evidence-driven step, not a procedural formality; and
• The integrity and fairness of the judicial process require correction of plainly illegal sentences, even when the path to error is shared by the court and counsel.

Going forward, Molina will serve as an important precedent in Nebraska DUI practice and more broadly in criminal sentencing, underscoring the need for rigorous adherence to enhancement procedures and careful appellate oversight of the legality of sentences.