State v. Irwin
| Decision Date | 20 February 1981 |
| Docket Number | No. 43517,43517 |
| Citation | 302 N.W.2d 386,208 Neb. 123 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, Appellee, v. Harold J. L. IRWIN, Appellant. |
Syllabus by the Court
1. Sexual Assault: Appeal and Error: Courts. The mentally disordered sex offender act, Neb.Rev.Stat. §§ 29-2911 to 29-2921 (Reissue 1979), does not authorize the courts of this state to review criminal proceedings unrelated to a defendant's status as a sex offender.
2. Sentences: Appeal and Error. In the absence of an abuse of discretion, a sentence imposed within statutory limits will not be disturbed on appeal.
3. Constitutional Law: Appeal and Error. For a question of constitutionality of a statute to be considered in this court, it must be properly raised in the trial court. If it is not raised in the trial court, it will be considered as waived in this court.
4. Constitutional Law. A person may attack the constitutionality of a statute only when and so far as it is being or is about to be applied to his disadvantage; and to raise the question he must show that the alleged unconstitutional feature of the statute injures him and so operates as to deprive him of a constitutional right. A party to a suit will not ordinarily be permitted to attack the constitutionality of a statute in a case where his rights and interests are not invaded or affected by its provisions.
Stephen A. Scherr, Adams County Public Defender, Hastings, for appellant.
Paul L. Douglas, Atty. Gen., and Martel J. Bundy, Lincoln, for appellee.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE and HASTINGS, JJ.
Harold J. L. Irwin, the defendant and appellant herein, appeals to this court from an order entered by the District Court of Adams County, Nebraska, sentencing the defendant to six consecutive terms of imprisonment of 5 years each, stemming from his 1972 conviction on six counts of rape. We affirm.
While the factual background of this case is amply set out in our decision of State v. Irwin, 191 Neb. 169, 214 N.W.2d 595 (1974), we will restate the pertinent facts that are applicable to this appeal. On February 17, 1972, Irwin was convicted after a jury trial on six counts of rape and one count of robbery. The offenses for which the defendant was convicted occurred in or near Hastings in Adams County, Nebraska, on separate occasions dating from April 21, 1969, to February 21, 1971. Irwin was sentenced on March 10, 1972, to a term of 20 to 25 years' imprisonment on the robbery charge. With regard to the rape convictions, a separate proceeding was instituted under the sexual sociopath act, Neb.Rev.Stat. §§ 29-2901 to 29-2910 (Reissue 1975), which statute was subsequently repealed in 1979. In the original proceedings, the defendant was found to be a sexual sociopath and was committed to the Nebraska Penal and Correctional Complex for an indefinite period. The defendant thereafter appealed his conviction and sentence to this court, and we affirmed the decision of the trial court in State v. Irwin, supra.
In 1979 the sexual sociopath act under which the defendant had been committed was repealed. It was superseded and replaced by L.B. 378, the new mentally disordered sex offender act, now appearing as Neb.Rev.Stat. §§ 29-2911 to 29-2921 (Reissue 1979). Thereafter, the defendant was returned to the District Court for disposition pursuant to the provisions of the new statute.
On May 8, 1980, the trial court determined that the defendant was a mentally disordered sex offender under the new law; that the disorder was treatable; and that the recommended treatment was available in Nebraska. The defendant was sentenced to consecutive terms of 5 years each on the six rape convictions, each sentence to run consecutive to the other and concurrently with the balance of defendant's robbery sentence. The District Court also granted the defendant a credit of 8 years and 220 days on the aforementioned sentences for time spent in custody.
Irwin has appealed to this court, assigning as error: (1) That the District Court erred in imposing an indeterminate sentence of 20 to 25 years for the robbery conviction; (2) The court exceeded its discretion by imposing consecutive sentences of 5 years each for six counts of rape; (3) The appellant's right to constitutional due process and equal protection is denied by imposition of a sentence under the new mentally disordered sex offender act.
At the outset, we note that § 29-2921, the statute under which the defendant was sentenced, states: "All persons now committed under Chapter 29, article 29, as either a sexual psychopath or a sexual sociopath, shall forthwith be returned to the district court which committed them for review and disposition consistent with the terms of section 29-2911 to 29-2921." The proceeding from which this case is appealed was instituted in the District Court pursuant to the directive found in the aforementioned statute in order to review the defendant's 1972 commitment as a sexual sociopath.
In his brief on appeal, the defendant would have us review his 1972 robbery sentence. This we cannot do. Section 29-2921 calls for the review of commitments made under the sexual sociopath law alone, and in no way authorizes this court, or the District Court, to review a conviction or sentence which is unrelated to the defendant's status as a sexual sociopath. The defendant's original commitment, based on the six rape charges was made under the old sexual sociopath act in a separate and distinct proceeding from the criminal proceedings in which he was sentenced for the robbery conviction. The crime of robbery is not a sex offense. We are convinced that the new mentally disordered sex offender act does not authorize the courts of this state to review criminal proceedings unrelated to a defendant's status as a sex offender. The defendant already has had a opportunity to and did have his robbery conviction reviewed by this court in State v. Irwin, supra, and the opinion in that case clearly states that all seven offenses were before the court in that appeal.
Defendant's second assignment of error alleges that the trial court exceeded its discretion by imposing consecutive sentences of 5 years each on the six rape convictions. In State v. Bridgmon, 196 Neb. 714, 717, 246 N.W.2d 57, 59 (1976), this court stated: "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." See, also, State v. Painter, 195 Neb. 183, 237 N.W.2d 142 (1976). While this court undoubtedly has the authority to reduce the sentences imposed upon the rape...
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...of West, 226 Neb. 813, 415 N.W.2d 769 (1987)). See, also, State v. Michalski, 221 Neb. 380, 377 N.W.2d 510 (1985); State v. Irwin, 208 Neb. 123, 302 N.W.2d 386 (1981). Both Crowdells face potential criminal liability as a consequence of conviction on the charges against them in the present ......
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State v. Last, 81-719
...in the absence of an abuse of discretion, a sentence imposed within statutory limits will not be disturbed on appeal. State v. Irwin, 208 Neb. 123, 302 N.W.2d 386 (1981); State v. Wredt, 208 Neb. 184, 302 N.W.2d 701 (1981). The granting of probation as opposed to the imposing of a sentence ......
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