State v. Philipps

• Decision Date: 12 March 1993
• Docket Number: No. S-91-1016,S-91-1016
• Citation: 496 N.W.2d 874,242 Neb. 894
• Parties: STATE of Nebraska, Appellee, v. Carla PHILIPPS, Appellant.
• Court: Nebraska Supreme Court

Page 874

496 N.W.2d 874

242 Neb. 894

STATE of Nebraska, Appellee, v. Carla PHILIPPS, Appellant.

No. S-91-1016.

Supreme Court of Nebraska.

March 12, 1993.

Syllabus by the Court

1. Sentences: Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion.

2. Sentences: Appeal and Error. The issue in reviewing a sentence is not whether someone else in a different case received a lesser sentence, but whether the defendant in the subject case received an appropriate one.

3. Sentences: Appeal and Error. To the sentencing court and not to an appellate court is entrusted the power to impose sentences for the commissions of crimes against the State; the judgment of the sentencing court cannot be interfered with in the absence of an abuse of discretion.

4. Sentences. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.

5. Sentences. In imposing a sentence, a sentencing court is to consider the defendant's age, mentality, education, experience, and social and cultural background, as well as her or his past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime.

Mark E. Ford, Lincoln, for appellant.

Don Stenberg, Atty. Gen., and J. Kirk Brown, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and LANPHIER, JJ.

PER CURIAM.

Pursuant to a plea bargain, the defendant-appellant, Carla Philipps, pled nolo contendere to and was adjudged guilty of two counts of attempted theft of property of a value less than $1,000, in violation of Neb.Rev.Stat. §§ 28-201 and 28-511 (Reissue 1989), and one count of theft of property valued at less than $300, in violation of § 28-511. As Class I misdemeanors, § 28-201 and Neb.Rev.Stat. § 28-518 (Reissue 1989), each count carries a maximum penalty of up to 1 year's imprisonment and a $1,000 fine. Neb.Rev.Stat. § 28-106 (Reissue 1989). The district court sentenced Philipps to a term of 1 year's imprisonment on each count, the sentences to run concurrently. Philipps appealed, asserting that the sentences were excessive. The Nebraska Court of Appeals agreed and vacated the sentences, remanding the cause to the district court with the direction that Philipps be sentenced to probation under such terms and conditions as the district court deemed appropriate. The plaintiff-appellee State successfully petitioned this court for further review; we reverse the judgment of the Nebraska Court of Appeals and remand the cause to that court with the direction that it affirm the judgment of the district court.

Philipps was employed by a Lincoln car washing business for nearly 5 years. Her tasks included bookkeeping, keeping the daily receipts, making deposits, and handling money. In early April 1991, she told the assistant manager that the cash register was $350 short. This event caught the attention of the owner of the business, who, on or about April 23, 1991, began closely examining the daily receipts. On that very day, he discovered a shortage of $150 cash. He then began going back through the books over a period of 3 years and discovered a deficit of $350 on both November 8, 1989, and June 11, 1990.

The owner contacted the Lincoln police, who then talked with Philipps. Philipps admitted taking money on April 23, 1991, and opened her purse to reveal $1,080, which she handed over to the police. The money included amounts taken on occasions other than April 23. Philipps also admitted taking money on November 8, 1989, and June 11, 1990.

Although the owner originally estimated that $24,000 could have been stolen from his business, he, the prosecutor, defense counsel, and Philipps arrived at $10,000 as an approximation of the total amount Philipps had pilfered during her employment. In an effort to make restitution, Philipps turned over to her former employer her profit-sharing program funds, totaling $7,960.14. Also returned was the $1,080 confiscated from Philipps at the time of her arrest, and Philipps paid an additional $959.86 on August 16, 1991.

Philipps has no prior criminal record, took the money because of financial pressures arising at least in part from family medical expenses and home repairs, appeared remorseful, and was, at the time of sentencing, 29 years old and pregnant.

Neb.Rev.Stat. § 29-2308 (Cum.Supp.1992) provides:

In all criminal cases that now are or may hereafter be pending in the Court of Appeals or Supreme Court, the appellate court may reduce the sentence rendered by the district court against the accused when in its opinion the sentence is excessive, and it shall be the duty of the appellate court to render such sentence against the accused as in its opinion may be warranted by the evidence. No judgment shall be set aside, new trial granted, or judgment rendered in any criminal case on the grounds of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure if the appellate court, after an examination of the entire cause, considers that no substantial miscarriage of justice has actually occurred.

Relying on the foregoing statute, the Court of Appeals concluded that notwithstanding that the district court had not abused its discretion in sentencing Philipps as it did, the Court of Appeals nonetheless had the statutory duty to reduce the sentences because it deemed them excessive. In doing so, the Court of Appeals cited State v. Spiegel, 239 Neb. 233, 474 N.W.2d 873 (1991), which recites that this court may reduce a sentence which in its opinion is excessive, and State v. Foutch, 196 Neb. 644, 244 N.W.2d 291 (1976), which proclaims that § 29-2308 authorizes this court to reduce a sentence which appears excessive.

However, the statements in Foutch and Spiegel must be read in the context of the longstanding and consistently applied rule that a sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion. See, e.g., State v. Reynolds, 242 Neb. 874, 496 N.W.2d 872 (1993); State v. Riley, 242 Neb. 887, 497 N.W.2d 23 (1993); State v. Tucker, 242 Neb. 336, 494 N.W.2d 572 (1993); State v. Hall, 242 Neb. 92, 492 N.W.2d 884 (1992); State v. Coleman, 241 Neb. 731, 490 N.W.2d 222 (1992); State v. Kincaid, 203 Neb. 495, 279 N.W.2d 152 (1979).

Indeed, the abuse of discretion standard was found to be intertwined with that of excessiveness at least as early as 1954 in Taylor v. State, 159 Neb. 210, 66 N.W.2d 514 (1954), wherein we wrote: "Contrary to defendant's contention, we find nothing in the record before us which could lawfully sustain a conclusion that the trial court abused its discretion and thereby imposed an excessive sentence upon defendant." Id. at 215, 66 N.W.2d at 517. See, also, State v. Etchison, 188 Neb. 134, 195 N.W.2d 498 (1972) (sentence within statutory limits ordinarily not disturbed unless abuse of discretion occurs; when sentence excessive or not warranted by evidence, § 29-2308 contemplates correction on appeal).

Nor is the fact that on occasion this court has referred to sentences imposed in other cases as a means of illustrating an abuse of discretion, see, e.g., State v. Haynie, 239 Neb. 478, 476 N.W.2d 905 (1991), to be interpreted as meaning that in a nondeath sentence an appellate court is to conduct a de novo review of the record to determine whether a sentence is proportionate and thus appropriate. State v. Reynolds, supra; State v. Riley, supra; State v. Hall, supra. As noted in State v. Sianouthai, 225 Neb. 62, 402 N.W.2d 316 (1987), the issue in reviewing a sentence is not whether someone else in a different case received a lesser sentence, but whether the defendant in the subject case received an appropriate one. Moreover, to the sentencing court and not to an appellate court is entrusted the power to impose sentences for the commissions of crimes against the State; the judgment of the sentencing court cannot be interfered with in the absence of an abuse of discretion. See State v. Hall, supra.

In rejecting the defendant's argument that § 29-2308 impowered this court to reduce a sentence which in its opinion was excessive, we, in State v. Orner, 192 Neb. 523, 222 N.W.2d 819 (1974), wrote:

The thrust of the defendant's argument is to the effect that this court should sit as an original sentencing court and to determine de novo what the sentence should be. This court has consistently held, as we have noted, that the standard of review in this court is whether there has been an abuse of discretion by the lower court. This court construed the meaning of section 29-2308, R.R.S.1943, in the case of Bell v. State, 159 Neb. 474, 67 N.W.2d 762, when it said as follows: "Section 29-2308, R.R.S.1943, which authorizes the Supreme Court to reduce a sentence when in its opinion the sentence is excessive, was not intended by the Legislature as a directive to the court to reduce the sentence in every instance where it is asked, but only in those cases where it is apparent that the trial court has abused its judicial discretion and fixed a penalty which is clearly excessive."

(Emphasis in original.) Id. at 524, 222 N.W.2d at 820. See, also, State v. Cano, 191 Neb. 709, 217 N.W.2d 480 (1974).

An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result. State v. Reynolds, supra; State v. Riley, supra; State v. Hall, supra; State v. Coleman, supra. In imposing a sentence, a sentencing court is to consider the defendant's age, mentality, education, experience, and social and cultural background, as well as her or his past criminal record or law-abiding conduct, motivation for the offense, nature of the...