State v. Rieger
| Decision Date | 01 November 2013 |
| Docket Number | No. S–13–456.,S–13–456. |
| Citation | 839 N.W.2d 282,286 Neb. 788 |
| Parties | State of Nebraska, Appellee, v. Kaylene M. Rieger, Appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the District Court for Sarpy County, Max Kelch, Judge, on appeal thereto from the County Court for Sarpy County, Robert C. Wester, Judge. Sentence vacated in part, and cause remanded with directions.
Liam K. Meehan, of Schirber & Wagner, L.L.P., for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
1. Sentences: Appeal and Error. 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 applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.
2. Sentences: Probation and Parole. It is within the discretion of the trial court whether to impose probation or incarceration.
3. Sentences: Probation and Parole. When a court sentences a defendant to probation, it may impose any conditions of probation that are authorized by statute.
4. Sentences: Probation and Parole. Whether a condition of probation imposed by the sentencing court is authorized by statute is a question of law.
5. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
Kaylene M. Rieger entered a guilty plea to one count of false reporting. She was sentenced by the county court for Sarpy County to probation for 18 months. As a condition of probation, she was directed to have no contact with her husband without the court's permission. The district court affirmed the sentence, and Rieger then perfected this timely appeal. We conclude that the broad prohibition on Rieger's contact with her husband is an unreasonable infringement upon Rieger's fundamental rights arising from marriage and an abuse of sentencing discretion. We therefore remand for resentencing.
Rieger and Gavin Vreeland were married on August 25, 2012. At the time of the marriage, Rieger had two children from previous relationships. In September 2012, police received a report that her 5–year–old son had bruises on his lower back. Rieger told officers that she had caused the bruising when she spanked the child. However, police officers learned that the child told his grandmother that Vreeland had spanked him and had caused the injuries. The child told police officers that it was mostly Vreeland who spanked him and that Vreeland spanked hard enough to make him cry. The child appeared confused as to whether his mother told him to blame the injuries on Vreeland or herself. Officers talked to Rieger again, and she continued to accept responsibility for spanking the child, but officers later spoke with Vreeland, who admitted to causing the injuries.
Rieger was charged with one count of false reporting, a Class I misdemeanor, 1 and one count of tampering with a witness, a Class IV felony. 2 She entered a guilty plea to the false reporting charge, and the other charge was dismissed by the State. At the plea hearing, the court inquired whether there was any pending juvenile proceeding, and Rieger responded that there was not. Her counsel added that it was his understanding that the Department of Health and Human Services (DHHS) had found the “abuse allegations” to be “unfounded.” The court ordered a presentence investigation and scheduled a sentencing hearing.
According to the presentence investigation report (PSR), Rieger had no prior record other than traffic offenses. The PSR indicated that Rieger and Vreeland were currently married and that he was a “co-defendant in this present offense,” but the PSR did not disclose the status or disposition of any charges against him. The report disclosed that Rieger was disabled and stated that she had been diagnosed with posttraumatic stress disorder, chronic migraines, depression, hypertension, a stroke, and a brain tumor. It noted that Vreeland was unemployed. The probation officer made no sentencing recommendation, but included several recommended conditions if the court decided to place Rieger on probation. One of these recommendations was that she “avoid social contact with persons having criminal records,” but the report made no specific reference to future contact with Vreeland.
At the sentencing hearing, Rieger stated that she and Vreeland were still living in the same home. She stated that Vreeland had been around her son since he was less than 1 year old and that she had never “seen [Vreeland] do anything like this” previously. The prosecutor noted that according to the PSR, Vreeland “admitted to spanking the kids in the past and indicated that [Rieger] knew that.” The court again inquired whether Rieger's children were involved in juvenile proceedings. Rieger's counsel responded: Later in the hearing, the prosecutor advised the court that Vreeland had entered a guilty plea to “child abuse” and Rieger stated that he was awaiting sentencing.
The county court told Rieger she could be placed on probation if she agreed to keep Vreeland out of the house while she was on probation or she could go to jail for 15 days, in which case, she would not receive some of her prescription medications. After inquiring about the failure of Rieger's relationships with the fathers of her children, the court stated: The court further observed that Rieger had “an instinctual way of finding a guy that's kind of at the bottom of the barrel that will put up with you and you put up with him, and that's the way it is.”
The court placed Rieger on probation for 18 months with conditions, including completion of a psychological evaluation, weekly individual counseling, and weekly attendance at a women's group. Rieger was also ordered to have “No contact with ... [V]reeland” without permission of the court. The court said it would permit contact between Rieger and Vreeland only if there was “some kind of intense therapeutic deal.”
Rieger appealed to the district court, which affirmed the sentence. The district court found the no-contact condition was reasonable because both the factual basis for the plea and the PSR left unresolved the question of whether Vreeland had committed child abuse. The court reasoned that the protection of a young child superseded any relationship between Rieger and Vreeland. Rieger filed this timely appeal. We moved the appeal to our docket on our own motion pursuant to our authority to regulate the caseloads of the appellate courts of this state.3 It was submitted without oral argument pursuant to Neb. Ct. R.App. P. § 2–111(E)(5)(a) (rev.2008).
Rieger assigns, restated and summarized, that the condition of probation that she have no contact with Vreeland was an abuse of discretion because it violated her fundamental rights inherent in the marital relationship and was not reasonably related to her rehabilitation. In addition, she contends that the 18–month period of probation is excessive in light of her minimal prior record.
Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determinewhether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.4 It is within the discretion of the trial court whether to impose probation or incarceration.5
When a court sentences a defendant to probation, it may impose any conditions of probation that are authorized by statute.6 Whether a condition of probation imposed by the sentencing court is authorized by statute is a question of law.7 The applicable statute provides that “[w]hen a court sentences an offender to probation, it shall attach such reasonable conditions as it deems necessary or likely to insure that the offender will lead a law-abiding life.” 8 These include requiring the offender to “meet his or her family responsibilities,” 9 to “refrain from frequenting unlawful or disreputable places or consorting with disreputable persons,” 10 and to “satisfy any other conditions reasonably related to the rehabilitation of the offender.” 11 We construe these provisions to authorize a no-contact condition of probation when it is reasonable and necessary to the rehabilitative goals of probation.
From our review of the record, it appears that the sentencing judge imposed the no-contact condition as a means of requiring Rieger to fulfill her parental responsibility to protect her children from potential future harm. Rieger contends that the no-contact condition must be subjected to heightened scrutiny because it affects the marital relationship, which the U.S. Supreme Court has described as “one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”12 Although we have not previously addressed this precise issue, Rieger's position is consistent with the analytical approach taken by other jurisdictions.
For example, in Dawson v. State,13 an Alaska appellate court invalidated a condition of probation which precluded contact between the defendant and his wife, with whom he had been involved in selling drugs. Alaska law required conditions of probation to be...
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