State v. Griffin, S-05-062.
| Court | Supreme Court of Nebraska |
| Citation | 705 N.W.2d 51,270 Neb. 578 |
| Docket Number | No. S-05-062.,S-05-062. |
| Parties | STATE of Nebraska, appellant, v. Renee GRIFFIN, appellee. |
| Decision Date | 28 October 2005 |
v.
Renee GRIFFIN, appellee.
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Edward H. Matney, Dakota County Attorney, for appellant.
Bryan E. Smith, Jr., Dakota County Public Defender, and on brief, William L. Binkard, South Sioux City, for appellee.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
STEPHAN, J.
The State brings this appeal pursuant to Neb.Rev.Stat. § 29-2315.01 (Cum.Supp.2004), contending that the district court for Dakota County, sitting as an intermediate appellate court, erred in modifying an appeal bond and determining that a criminal sentence entered by the county court for Dakota County was excessive. While we find no error in the modification of the appeal bond, we conclude that the district court erred in determining that the sentence was excessive.
A complaint charging Renee Griffin with third degree assault was filed in the county court on May 25, 2004. During a group arraignment on the same day, Griffin was advised of her Fifth and Sixth Amendment rights. The court then examined Griffin individually and ascertained that she understood her rights and wished to waive reading of the complaint. The court further determined that Griffin wished to proceed without an attorney, even though she had previously filed an affidavit of financial condition. After Griffin indicated that she wished to plead guilty, the State provided a factual basis for the charge, which included allegations that Griffin was one of four persons who assaulted a victim at a bar in Homer, Nebraska, on May 20. According to the prosecutor, Griffin struck the victim with a drinking glass on the head and elbow, causing a tendon in the victim's elbow to be severed. After the factual basis was given, the court asked Griffin whether that was what had happened and Griffin responded, "No." When asked by the court, "Well, what happened? Did you assault this lady, yes or no?" Griffin responded, "Yes." Griffin then clarified that she wanted the court to accept her guilty plea. After examining Griffin to ascertain that she understood the consequences of a guilty plea, the court determined that she had entered the plea knowingly, voluntarily, and intelligently, and found her guilty of the charged offense.
Griffin then informed the court that she wished to proceed to sentencing without an
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attorney. The State recommended that Griffin be sentenced to the statutory maximum of 1 year in jail and a $1,000 fine due to the serious nature of the assault and the severity of the injuries suffered by the victim, which it alleged could result in permanent disfigurement. See Neb.Rev.Stat. § 28-106 (Cum.Supp.2004). When asked if she had anything to say with respect to sentencing, Griffin replied only that she had a 2-year-old son and that "due to the stupidity of my actions that night . . . I believe I learned my lesson." The county judge sentenced Griffin to 350 days in jail, noting, "I could've sent you to the penitentiary. Your actions are, as you've indicated, very stupid. There's no excuse for them."
On June 23, 2004, Griffin filed a notice of appeal "from the judgment and sentence of the [county] court entered herein on May 25, 2004, for the reason that said sentence was excessive." The notice of appeal was signed by Griffin and an attorney appearing on her behalf. Griffin did not file a separate statement of errors with the district court, as required by Neb. Ct. R. of Cty. Cts. 52(I)(G) (rev.2000). On June 25, the county court issued an order suspending Griffin's period of confinement during the appeal on the condition that she either enter into a written recognizance with the State of Nebraska in the amount of $10,000 with surety or sureties approved by the county court or deposit a cash bond of $1,000. See Neb.Rev.Stat. § 25-2730(3) (Cum.Supp.2004). On or about July 20, while the appeal was pending, Griffin filed a motion requesting that the district court reduce the terms of her appeal bond. See § 25-2730(6). On August 3, the district court granted the motion and reduced the bond requirement to a recognizance of $10,000 secured by Griffin's signature.
On December 8, 2004, the district court entered an order finding that the assignment of error in Griffin's appellate brief "complied in substance" with the requirements of rule 52. The court thereafter analyzed whether the county court abused its discretion in sentencing Griffin. Finding that the sentence was nearly the statutory maximum, that the county court failed to order a presentence investigation, and that the county court did not articulate sufficient reasons for its imposition of the sentence, the district court concluded that the sentence imposed was excessive, and reversed, and remanded for further proceedings. The State requested and was granted leave to file this appeal pursuant to § 29-2315.01.
The State assigns, restated and renumbered, (1) that the district court erred in modifying the appeal bond to a personal recognizance bond with no surety; (2) that the district court, sitting as an intermediate appellate court, erred in reviewing Griffin's appeal of her sentence under an abuse of discretion standard when Griffin failed to timely file a statement of errors with the district court; (3) that the district court erred in concluding that the county court abused its discretion in imposing Griffin's sentence.
Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below. State v. Jonusas, 269 Neb. 644, 694 N.W.2d 651 (2005); State v. Pathod, 269 Neb. 155, 690 N.W.2d 784 (2005).
Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and
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applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. State v. Losinger, 268 Neb. 660, 686 N.W.2d 582 (2004).
Section 25-2730 governs the initial setting and subsequent modification of bonds in criminal appeals from county to district court. The statute provides in pertinent part:
(3) . . . Execution of a sentence to a period of confinement shall be suspended only if (a) the county court, in its discretion, allows the defendant to continue at liberty under the prior recognizance or bail or (b) the defendant enters into a written recognizance to the State of Nebraska, with surety or sureties...
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