State v. Gillette, 84-322
| Decision Date | 09 November 1984 |
| Docket Number | No. 84-322,84-322 |
| Citation | 218 Neb. 672,357 N.W.2d 472 |
| Parties | STATE of Nebraska, Appellee, v. James L. GILLETTE, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Sentences. After conviction a trial judge has broad discretion in the source and type of evidence he may use to assist him in determining the kind and extent of punishment to be imposed within the limits fixed by statute. Highly relevant, if not essential, to his determination of an appropriate sentence is the gaining of knowledge concerning defendant's life, character, and previous conduct. In gaining this information the trial court may consider reports of probation officers, police reports, affidavits, and other information, including his own observations of the defendant.
2. Sentences. The latitude allowed a judge at a sentencing hearing to determine the nature and length of punishment, other than in recidivist cases, is almost without limitation as long as it is relevant to the issue.
3. Sentences: Appeal and Error. The rule is firmly established in this state that in the absence of an abuse of discretion, a sentence imposed within statutory limits will not be disturbed on appeal.
4. Sentences: Appeal and Error. It is the rule in this jurisdiction that an order or sentence of the trial court denying probation will not be overruled on appeal unless there has been an abuse of discretion.
5. Sentences. That part of Neb.Rev.Stat. § 29-2260(2) (Cum.Supp.1984) providing that the court "may withhold sentence of imprisonment" is a guideline for the court and is not mandatory.
Daniel E. Wherry of Johnston, Barber, Wherry & Knight, Lincoln, for appellant.
Richard T. Smith, Gage County Atty., Beatrice, for appellee.
Defendant, James L. Gillette, was convicted on his guilty plea that on June 4, 1982, he caused to be made false statements or false bank entries in the books of First Security Bank and Trust, Beatrice, Nebraska (Security Bank). Neb.Rev.Stat. § 8-175 (Reissue 1983). The penalty for this Class III felony is 1 to 20 years' imprisonment, or $25,000 fine, or both. Neb.Rev.Stat. § 28-105 (Reissue 1979).
Defendant appeals his sentence of 16 months to 2 years, claiming these errors: (1) The trial court abused its discretion by considering irrelevant and unsubstantiated facts contained in the presentence report, including the Federal Bureau of Investigation reports; (2) The sentence is excessive and constitutes cruel and unjust punishment; and (3) The trial judge erred in not disqualifying himself because of an appearance of bias and because he was indirectly interested.
Defendant, a college graduate, age 40, is married to Nancy Copple; they are the parents of two minor children. At the time of the offense, defendant was president of Security Bank, which he acquired in 1980 along with First Security Savings Company, Beatrice, Nebraska (Security Savings), from Nancy's grandfather, S.E. Copple.
Prior to the guilty plea, defendant, his wife Nancy, and the Gage County attorney signed a written plea agreement providing (1) no further criminal charges would be filed against either defendant or Nancy Gillette as regarding Security Bank and Security Savings, and (2) defendant and Nancy would cooperate with the county attorney and federal authorities and "[i]n any criminal investigations concerning conduct of public officials or others in regards to the above-named institutions and Commonwealth Savings Company of Lincoln, Nebraska."
The thrust of defendant's first error assignment is that the presentence report contained information concerning other unproven state and federal bank violations that in some way involved defendant and that they should not be considered by the sentencing judge.
The presentence investigation and report shall include, when available, an analysis of the circumstances attending the commission of the crime, the offender's history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation and personal habits, and any other matters that the probation officer deems relevant or the court directs to be included.
Neb.Rev.Stat. § 29-2261(3) (Cum.Supp.1984).
It is a long accepted practice in this state that before sentencing a defendant after conviction a trial judge has a broad discretion in the sourse [sic] and type of evidence he may use to assist him in determining the kind and extent of punishment to be imposed within the limits fixed by statute. Highly relevant, if not essential, to his determination of an appropriate sentence is the gaining of knowledge concerning defendant's life, character, and previous conduct. In gaining this information, the trial court may consider reports of probation officers, police reports, affidavits, and other information including his own observations of the defendant. A presentence investigation has nothing to do with the issue of guilt.... The latitude allowed a sentencing judge at a presentence hearing to determine the nature and length of punishment, other than in recidivist cases, is almost without limitation as long as it is relevant to the issue.
(Emphasis supplied). State v. Rose, 183 Neb. 809, 811, 164 N.W.2d 646, 648-49 (1969); State v. Harrington, 202 Neb. 356, 275 N.W.2d 294 (1979).
In Harrington, a forgery case, it was held relevant for the court to consider " 'that you engaged in a deliberate and premeditated course of conduct over a period of 42 days which involved 5 separate incidents of embezzlement; while you're not charged with embezzlement, I think I'm entitled to consider that and have to consider that....' " Id. 202 Neb. at 358, 275 N.W.2d at 296.
The presentence report, prepared by a state probation officer, consisted of (1) general background information; (2) two lengthy statements given by defendant to Richard T. Smith, Gage County attorney, relating to a wide range of banking law violations, both state and federal; (3) a copy of an FBI investigative report dated June 16, 1983, concerning federal bank violations involving the Security Bank and other institutions; and (4) more than 50 personal, good character letters from defendant's friends and acquaintances. The full report was examined and studied by defendant's counsel and the sentencing judge. Defendant added to the report by furnishing documents showing that his residence in Tucson, Arizona, was in foreclosure and that his business assets had little value.
This colloquy occurred at the beginning of the sentencing hearing:
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