State v. Jallen, 83-970

• Decision Date: 28 December 1984
• Docket Number: No. 83-970,83-970
• Citation: 218 Neb. 882,359 N.W.2d 816
• Parties: STATE of Nebraska, Appellant, v. Iris JALLEN, Appellee.
• Court: Nebraska Supreme Court

Page 816

359 N.W.2d 816

218 Neb. 882

STATE of Nebraska, Appellant, v. Iris JALLEN, Appellee.

No. 83-970.

Supreme Court of Nebraska.

Dec. 28, 1984.

Syllabus by the Court

1. Sentences: Appeal and Error. Where the State appeals a sentence under Neb.Rev.Stat. §§ 29-2320 et seq. (Cum.Supp.1984), on the ground that the sentence is excessively lenient, a sentence imposed within statutory limits will not be disturbed on appeal unless there appears an abuse of the sentencing court's discretion.

2. Probation and Parole: Appeal and Error. The granting of probation, as opposed to the imposition of a sentence of imprisonment, will not be disturbed on appeal in the absence of any abuse of discretion by the sentencing court.

George Rhodes, Custer County Atty., Broken Bow, for appellant, and, on brief, Paul L. Douglas, Atty. Gen., and Lynne R. Fritz, Lincoln.

Brad Roth of Black & Sennett, Broken Bow, and Robert Driscoll, Denver, Colo., for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

GRANT, Judge.

On April 11, 1983, the sheriff of Custer County, Nebraska, served a copy of the information on defendant. The information charged defendant, Iris Jallen, with five separate counts of the delivery of a controlled substance, marijuana, during the time from August 5 to December 17, 1981. Each count was a Class III felony with a penalty of 1 to 20 years, or a fine, or both. Jury trial was had on October 25 and 26, 1983, and defendant was convicted on each of the five felony counts against her. Defendant's motion for a new trial was overruled on December 9, 1983, and defendant was sentenced to "eighteen months of probation." Defendant did not appeal from the denial of her motion for new trial nor from the sentence imposed. The State has appealed only from the order of the district court placing defendant on probation, and has assigned as error only that the district court "abused its discretion in placing the defendant on probation, as based on the facts and circumstances of this case, said sentence is excessively lenient." For the reasons hereinafter stated we affirm the sentence of the district court.

The appeal herein taken by the State is based on Neb.Rev.Stat. §§ 29-2320 to 29-2325 (Cum.Supp.1984). These statutes authorize an appeal of a sentence imposed on a defendant by the county attorney charged with the prosecution of the defendant if, as stated in § 29-2320, "such attorney reasonably believes, based on all of the facts and circumstances of the particular case, that the sentence is excessively lenient."

First of all, the State, through its brief, sets out the premise that a sentence imposed by a district court within the statutorily prescribed limits will not be disturbed on appeal unless there appears an abuse of the court's discretion. Defendant Jallen agrees with this premise in her brief. We too adopt this scope of review. We have consistently held, in affirming sentences imposed by trial courts, that a sentence imposed within statutory limits will not be overturned on appeal in the absence of abuse of discretion by the trial court. See, State v. Reuter, 216 Neb. 325, 343 N.W.2d 907 (1984); State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984); State v. Evans, 215 Neb. 433, 338 N.W.2d 788 (1983). It is clear that the trial court's sentence in this case is within statutory limits provided by Neb.Rev.Stat. § 29-2260(2) (Cum.Supp.1984), which authorizes the granting of probation in any case "for which mandatory imprisonment is not specifically required ...."

We apply the rule set out in State v. Last, 212 Neb. 596, 324 N.W.2d 402 (1982), with regard to appeals by defendants from the denial of probation, to the situation presented under § 29-2320 where the State appeals the granting of probation to a defendant. As provided in Last at 604, 324 N.W.2d at 406:

Turning then to the last assignment, that the trial court abused its discretion in sentencing the appellant to imprisonment rather than probation, we must likewise overrule. The sentence was well within the statutory limits. We have frequently held that 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 is a matter which is left to the sound discretion of the trial court, and, absent a showing of abuse, this court will not on appeal disturb the trial court's denial of probation. State v. Jurgens, 187 Neb. 557, 192 N.W.2d 741 (1971); State v. Milligan, 195 Neb. 493, 238 N.W.2d 906 (1976).

In reviewing the granting of probation, as distinguished from the denial of probation, we must use the same scope of review.

In so reviewing the case for an abuse of the trial court's discretion, our review is governed by § 29-2322, which sets out the factors we are to consider in determining whether the sentence imposed is "excessively lenient." Additionally, we note that § 29-2260(2)(a), (b), and (c) sets out factors to be considered by a sentencing judge in determining if a defendant should be imprisoned, while § 29-2260(3)(a) through (k) sets out factors to be considered in the decision to withhold imprisonment. The sentencing judge's discretion is guided by all these factors. Our review of the alleged abuse of the sentencing judge's discretion, therefore, must recognize these statutory guidelines set out for the direction of the sentencing judge in imposing or withholding imprisonment.

We turn, then, to the record before us in our review to determine if the sentencing court abused its discretion in placing this defendant on probation. The first matter which we are directed by § 29-2322 to have regard for is "The nature and circumstances of the offense." The record of the trial shows that each of defendant's convictions was based on a sale of approximately 1 pound of marijuana to an undercover law enforcement officer in the town of Arnold, Nebraska, on the dates of August 5, September 10, 21, and 24, and December 17, 1981. The information was apparently prepared on January 12, 1983. Jury trial was had on October 25 and 26, 1983, resulting in the conviction of defendant. Defendant was sentenced to probation on December 9, 1983.

Other circumstances appear in the record by being placed therein by the prosecuting attorney in his remarks at sentencing to the sentencing judge. Those underlying circumstances were stated by the prosecuting attorney to be that this case was

one of the Arnold cases and I guess the Court is well aware that the other Defendants received probation but I would point out the vast amount of difference between the other cases and this one. For one thing, in all the other cases but one there was a plea bargain in return for a plea of guilty the State agreed to recommend probation and to those Defendants that did that, they gave up their right to a trial, their right to a Jury and the right to take the chance that they could walk away from it a free person. They gave up all those things to enter a plea of guilty with the recommendation of probation and I think it would be unfair to them to give somebody the benefit of a bargain that wasn't made. There was one other case from Arnold where there was no plea bargain. That person took a Jury trial but in that case and all the other Arnold cases, the Defendant was charged with one count, just one transaction and in this case the Defendant had been convicted of five different counts occurring over a period of time.

In response, defendant's counsel informed the sentencing judge that "it would be contrary to all principles of American jurisprudence to tax her or penalize her for exercising her right to trial." The county attorney explained his statement to the sentencing court in his rebuttal remarks, when he said, "I didn't mean to say she shouldn't [sic] be punished for asking for a Jury trial. I simply wanted to say her case was different than all the rest and she shouldn't automatically get the same sentence as the rest of them did." The State makes much the same argument in its brief at 7.

The next matter the statute sets out that we should consider is "The history and characteristics of the defendant." The presentence investigation (hereinafter PSI) prepared by the probation officer showed defendant was 21 years old at the time of the crimes and 23 at the time of sentencing. The PSI also showed that defendant had worked at the same $3.75-per-hour job in Arnold, Nebraska, from May of 1981 to September of 1983, when she left due to a disagreement with her employer. This employment covered times before the crimes and for approximately 21 months after the crimes. The PSI report also showed that defendant had never been convicted of any felony before her arrest in this case and that she had not been involved in any criminal activity between the date of her arrest on July 9, 1982, and the preparation of the PSI on November 29, 1983. Defendant did have two speeding tickets--one in May of 1979 and one in February of 1980.

The PSI also showed that defendant's mother and father live in Sidney, Nebraska. They both have a good relationship with defendant and are supportive of her. Defendant graduated from high school in Sidney in 1978 and later fulfilled the requirements for state licensing in...