State v. Hunt , 299 Neb. 573 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. HUNT
Cite as 299 Neb. 573
State of Nebraska, appellee, v.
K eshaud D. Hunt, appellant.
___ N.W.2d ___
Filed April 6, 2018. No. S-17-327.
1. Criminal Law: Courts: Juvenile Courts: Jurisdiction: Appeal and
Error. A trial court’s denial of a motion to transfer a pending criminal
proceeding to the juvenile court is reviewed for an abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
4. Courts: Juvenile Courts: Jurisdiction. In order to retain proceedings
in criminal court, the court need not resolve every statutory factor in
favor of transfer against the juvenile, and there are no weighted factors
and no prescribed method by which more or less weight is assigned to
a specific factor. It is a balancing test by which public protection and
societal security are weighed against the practical and nonproblemati-
cal rehabilitation of the juvenile.
5. Courts: Juvenile Courts: Evidence. Under Neb. Rev. Stat. § 29-1816(3)
(Reissue 2016), after considering the evidence and the criteria set forth
in Neb. Rev. Stat. § 43-276 (Reissue 2016), the court shall transfer the
case to juvenile court unless a sound basis exists for retaining the case
in county court or district court.
6. Courts: Juvenile Courts: Judgments. When ruling on a motion to
transfer to juvenile court under Neb. Rev. Stat. § 29-1816(3) (Reissue
2016), the county or district court must set forth findings supporting
its decision.
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STATE v. HUNT
Cite as 299 Neb. 573
7. Courts: Juvenile Courts: Jurisdiction: Proof. In a motion to transfer
to juvenile court, the burden of proving a sound basis for retaining
jurisdiction in county court or district court lies with the State.
8. Courts: Juvenile Courts: Jurisdiction: Evidence. When a district
court’s basis for retaining jurisdiction over a juvenile is supported by
appropriate evidence, it cannot be said that the court abused its discre-
tion in refusing to transfer the case to juvenile court.
9. 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.
10. Sentences. When imposing a sentence, the sentencing court is to con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense and (8) the amount of violence
involved in the commission of the crime.
11. ____. Generally, it is within a trial court’s discretion to direct that
sentences imposed for separate crimes be served either concurrently
or consecutively. This is so, even when offenses carry a mandatory
minimum sentence, unless the statute requires that consecutive sentences
be imposed.
Appeal from the District Court for Douglas County: Gary B.
R andall, Judge. Affirmed.
James Martin Davis, of Davis Law Office, for appellant.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi
for appellee.
Heavican, C.J., Cassel, Stacy, and Funke, JJ., and Pirtle,
Judge.
Stacy, J.
Keshaud D. Hunt was 15 years old when he was charged
in district court with multiple felonies arising from two armed
robberies. His motion to transfer the case to juvenile court was
overruled, and eventually, he pled no contest to an amended
information. At the sentencing hearing, the district court denied
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299 Nebraska R eports
STATE v. HUNT
Cite as 299 Neb. 573
Hunt’s request for disposition under the Nebraska Juvenile
Code1 and instead imposed consecutive prison sentences. Hunt
appeals, assigning error to the denial of his motion to trans-
fer and his request for disposition under the juvenile code.
We affirm.
BACKGROUND
On April 21, 2016, Hunt was charged with attempted sec-
ond degree murder, robbery, attempted robbery, and three
counts of using a deadly weapon (firearm) to commit a felony.
All charges stemmed from events alleged to have occurred
on March 16 in Omaha, Nebraska. Hunt was 15 years old at
the time, and the charges were filed in the Douglas County
District Court.2
Motion to Transfer
After entering pleas of not guilty to the charges, Hunt moved
to transfer the case to juvenile court pursuant to § 29-1816(3).
An evidentiary hearing was held on September 8, 2016.
The State offered two exhibits, both of which were received.
The first exhibit was a probable cause affidavit detailing Hunt’s
alleged crimes and the ensuing investigation. That exhibit
showed that on March 16, 2016, around 8:15 p.m., a suspect
wearing a black hooded sweatshirt and gray shoes entered a
convenience store on South 24th Street in Omaha. He pulled
out a black semiautomatic handgun and pointed it at two store
employees while demanding money from the cash register. One
of the employees pulled out his own handgun and told the sus-
pect to drop his gun. The suspect exclaimed “‘don’t do it’” and
began retreating toward the door. But instead of leaving, the
suspect ran back toward the employee, while firing multiple
shots from the handgun. One shot grazed the employee’s waist.
The suspect then fled the scene.
1
See Neb. Rev. Stat. § 29-2204(5) (Supp. 2017).
2
See Neb. Rev. Stat. §§ 29-1816(1)(a)(ii) and 43-246.01(3)(c) (Reissue
2016).
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STATE v. HUNT
Cite as 299 Neb. 573
Later the same night around 10 o’clock, a suspect wearing a
black hooded sweatshirt and gray shoes entered another Omaha
convenience store, located on North 72d Street. He approached
an unarmed security guard and placed a black semiautomatic
handgun to the guard’s face. The suspect took approximately
$200 from the registers and left the store.
A Crime Stoppers tip led investigators to Hunt. After speak-
ing with Hunt’s juvenile probation officer, police learned that
Hunt’s electronic tracking device showed he had visited an
Omaha grocery store on the evening of March 16, 2016. Video
from the grocery store showed Hunt wearing a black hooded
sweatshirt and gray shoes with the same markings as the shoes
worn in both convenience store robberies. Police also learned
that Hunt returned home from the grocery store and cut off his
electronic monitoring device around 7:45 p.m. The first conve-
nience store was robbed approximately 30 minutes later.
The second exhibit was a certified copy of Hunt’s juvenile
court file. That file showed that in 2015, Hunt was found to be
within the meaning of Neb. Rev. Stat. § 43-247 (Cum. Supp.
2014) as a result of committing multiple armed robberies when
he was 14 years old. The juvenile petition alleged that on or
about July 28, 2015, Hunt committed the crimes of (1) using
a deadly weapon (firearm) to commit a felony, (2) two counts
of robbery, (3) two counts of attempted robbery, and (4) two
counts of tampering with physical evidence. Hunt eventually
admitted to one count of using a deadly weapon (firearm) to
commit a felony (a Class IC felony), one count of robbery (a
Class II felony), one count of attempted robbery (a Class II
felony), and one count of tampering with physical evidence
(a Class IV felony). One of the 2015 robberies involved the
same convenience store Hunt was accused of robbing in
March 2016.
The juvenile court accepted Hunt’s admissions to the 2015
crimes and placed him in “shelter care” under the supervision
of juvenile probation pending disposition. On December 22,
2015, Hunt was returned to his mother’s home, ordered to wear
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STATE v. HUNT
Cite as 299 Neb. 573
an electronic monitoring device and abide by the conditions of
the “H.O.M.E.” program, and ordered to participate in indi-
vidual counseling and gang prevention services. On January
25, 2016, the court ordered Hunt to participate in additional
counseling and treatment programs and scheduled a continued
disposition hearing for June 27. But before that hearing, Hunt
was arrested for the March 2016 robberies.
At the transfer hearing, Hunt offered the testimony of his
juvenile probation officer, Ladonna Strong. Strong had super-
vised Hunt since June 2016. Strong testified that Hunt, who
was being housed at the Douglas County Youth Center at the
time of the transfer hearing, had been respectful, patient, open,
and honest with her. According to Strong, Hunt was a member
of a gang in Omaha. She suggested Hunt would benefit from a
structured rehabilitative environment.
Strong testified that after the 2015 robberies but before the
robbery charges in March 2016, the State sought a group home
placement for Hunt given the amount of time he had spent in
the Douglas County Youth Center, but Hunt was rejected by
both Boys Town and Omaha Home for Boys primarily due
to the serious nature of his 2015 charges. Hunt applied to a
group home facility in Arizona which was willing to accept
him, but he was returned home with his mother and put on
electronic monitoring.
Strong testified that Hunt and his family received numerous
services once Hunt returned home, including family support,
gang intervention, individual and family therapy, and electronic
monitoring. Hunt was ordered to participate in “pro-social
activit[ies],” attend school, and attend individual and family
therapy. He initially complied, but within a few weeks, he was
suspended from school for fighting, began missing curfew, cut
off his electronic monitoring device, and used marijuana. As a
result, the State already was seeking to revoke Hunt’s place-
ment when, on March 16, 2016, Hunt cut off his electronic
monitor a second time and allegedly committed the current
felony offenses.
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STATE v. HUNT
Cite as 299 Neb. 573
Strong testified that although Hunt had been accepted to
the Arizona group home facility before his current charges, he
had no pending application at the time of the transfer hearing,
and there was no guarantee Hunt would be accepted into the
Arizona facility again. Strong testified that the secure youth
detention facility in Kearney, Nebraska, was a housing option
of last resort from which Hunt could not be rejected. Strong
testified the Kearney facility offered therapy and services
directed to youth that she believed would benefit Hunt. But
she noted that therapy and other services are also available in
adult prisons.
The district court took the motion to transfer under advise-
ment and later denied it in a written order entered September
12, 2016. In its order, the district court found that Hunt’s
current and prior offenses were extremely violent and aggres-
sive and committed in a premeditated manner. It found that
although Hunt was only 15 years old, he was charged with
crimes of violence involving guns used to rob others, and his
crimes exhibited sophistication and maturity. The district court
found that Hunt was a gang member and his motivation for
committing the charged offenses was self-serving. It deter-
mined that although Hunt may be amenable to treatment, there
were no guarantees “or even reasonable assurances” that Hunt
would be accepted into a group home setting given this was his
second episode of seriously violent offenses within a 9-month
period, and the court concluded that without detention and
rehabilitative treatment, Hunt presented a serious risk to the
community. The court also found it was in Hunt’s best interests
to be continued in secure detention.
Ultimately, after weighing all the statutory factors, the dis-
trict court concluded Hunt “exhibited behavior . . . of being a
juvenile out of control, with access to multiple hand guns will-
ing to commit violent acts of robbery without regard for the
safety and welfare of others and as a result [found Hunt] to be
a danger to the community.” Thus, the district court retained
jurisdiction and overruled Hunt’s motion to transfer.
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STATE v. HUNT
Cite as 299 Neb. 573
At the time Hunt’s motion to transfer was denied, such an
order was not final and appealable.3 However, we note that
effective August 24, 2017, the Legislature amended the rel-
evant statute to provide that “[a]n order granting or denying
transfer of the case from county or district court to juvenile
court shall be considered a final order for the purposes of
appeal” and to give “any party” the right to appeal from such
order within 10 days.4
Plea and Sentence
Thereafter, pursuant to a plea agreement, Hunt pled no con-
test to an amended information charging one count of using
a deadly weapon (firearm) to commit a felony (a Class IC
felony), one count of robbery (a Class II felony), and one count
of first degree assault (a Class II felony). The court accepted
Hunt’s pleas, found him guilty, and ordered a presentence
investigation report.
The presentence report concluded Hunt was at a high risk
to reoffend and recommended the court consider a sentence
of incarceration “to promote accountability, to protect society
and provide [Hunt] with any and all services deemed to be
appropriate through the Douglas County Youth Center and the
Nebraska Department of [Correctional Services].”
At the sentencing hearing on February 23, 2017, Hunt’s
counsel asked the court to consider disposition under the
Nebraska Juvenile Code.5 In support, Hunt’s counsel cited
Strong’s testimony at the transfer hearing that Hunt would
improve in a structured, secured facility geared toward youth.
The attorney reminded the court about the facility in Arizona,
but offered no proof the facility would still accept Hunt.
Alternatively, Hunt’s attorney asked the court to impose the
“lowest level of incarceration” permitted for the convictions.
3
See State v. Bluett, 295 Neb. 369, 889 N.W.2d 83 (2016).
4
§ 29-1816(3)(c) (Supp. 2017). See 2017 Neb. Laws, L.B. 11, § 1.
5
See § 29-2204(5).
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STATE v. HUNT
Cite as 299 Neb. 573
The State asked the court to impose consecutive prison
terms and asked that the terms be “substantial,” observing that
Hunt already had “committed more violent crime in [a] few
years [than] most really violent offenders do in a lifetime.”
The district court denied Hunt’s request for disposition
under the juvenile code, reasoning that Hunt was on probation
for violent armed robberies when he committed the violent
crimes for which he was being sentenced, and “obviously
[was] getting no benefits from the supervision of the juvenile
court.” The court referenced Hunt’s violent criminal history
and the impact of Hunt’s crimes, particularly on the conve-
nience store employee who was shot. The court expressed
how difficult it was to sentence Hunt, who had turned 16 by
the time of the hearing, to prison. But the court stated that
after reading the presentence investigation report, it concluded
Hunt was a public danger and, in order to protect the com-
munity, Hunt needed to be incarcerated “long enough [to]
grow up.”
The court sentenced Hunt to 15 to 20 years’ imprisonment
on the robbery conviction, 15 to 20 years’ imprisonment on
the first degree assault conviction, and 5 to 20 years’ impris-
onment on the conviction for use of a firearm to commit a
felony. All sentences were ordered to be served consecutively.
The court advised Hunt that assuming he lost no good time, he
would be eligible for parole in 20 years, at the age of 36, and
would be mandatorily discharged in 321⁄2 years. Hunt timely
filed this direct appeal.
ASSIGNMENTS OF ERROR
Hunt assigns the district court erred by (1) denying his
motion to transfer to juvenile court and (2) refusing his request
for disposition under the Nebraska Juvenile Code and, instead,
imposing excessive sentences.
STANDARD OF REVIEW
[1,2] A trial court’s denial of a motion to transfer a pend-
ing criminal proceeding to the juvenile court is reviewed for
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STATE v. HUNT
Cite as 299 Neb. 573
an abuse of discretion.6 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 con-
science, reason, and evidence.7
[3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.8
ANALYSIS
No A buse of Discretion
in Denying Transfer
Motions to transfer a pending criminal case to juvenile
court are governed by § 29-1816(3) (Reissue 2016) and Neb.
Rev. Stat. § 43-276(1) (Reissue 2016). Generally speaking,
§ 29-1816(3) sets forth the procedure to be followed, and
§ 43-276(1) enumerates the factors a court must consider when
ruling on a motion to transfer, which include
(a) [t]he type of treatment such juvenile would most
likely be amenable to; (b) whether there is evidence that
the alleged offense included violence; (c) the motivation
for the commission of the offense; (d) the age of the
juvenile and the ages and circumstances of any others
involved in the offense; (e) the previous history of the
juvenile, including whether he or she had been convicted
of any previous offenses or adjudicated in juvenile court;
(f) the best interests of the juvenile; (g) consideration of
public safety; (h) consideration of the juvenile’s ability
to appreciate the nature and seriousness of his or her
conduct; (i) whether the best interests of the juvenile and
the security of the public may require that the juvenile
continue in secure detention or under supervision for a
period extending beyond his or her minority and, if so,
6
State v. Bluett, supra note 3.
7
Id.
8
State v. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017).
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Cite as 299 Neb. 573
the available alternatives best suited to this purpose; (j)
whether the victim agrees to participate in mediation;
(k) whether there is a juvenile pretrial diversion program
established pursuant to sections 43-260.02 to 43-260.07;
(l) whether the juvenile has been convicted of or has
acknowledged unauthorized use or possession of a fire-
arm; (m) whether a juvenile court order has been issued
for the juvenile pursuant to section 43-2,106.03; (n)
whether the juvenile is a criminal street gang member;
and (o) such other matters as the parties deem relevant to
aid in the decision.
[4] In order to retain the proceedings, the court need not
resolve every statutory factor against the juvenile, and there
are no weighted factors and no prescribed method by which
more or less weight is assigned to a specific factor.9 It is a
balancing test by which public protection and societal security
are weighed against the practical and nonproblematical reha-
bilitation of the juvenile.10
[5,6] After the court considers the evidence in light of the
§ 43-276 factors, “the case shall be transferred to juvenile
court unless a sound basis exists for retaining the case in
county court or district court.”11 The court is required to “set
forth findings for the reason for its decision” on the motion
to transfer.12
[7] The burden of proving a sound basis for retention lies
with the State.13 Hunt argues that the State failed to meet its
burden and that the district court abused its discretion in fail-
ing to grant the transfer. We disagree.
Summarized, the evidence at the transfer hearing showed
Hunt was a gang member and had been adjudicated in 2015
9
State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (2015).
10
Id.
11
§ 29-1816(3)(a).
12
§ 29-1816(3)(b).
13
State v. Dominguez, supra note 9.
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for robberies involving firearms when he was 14 years old. He
had been detained in the Douglas County Youth Center, placed
in “shelter care,” and returned home under probation super-
vision on electronic monitoring. Hunt had received, among
other services, drug and alcohol testing, a psychological eval­
uation, electronic monitoring, individual and family therapy,
and gang intervention services. Despite these services, Hunt
was suspended from school for fighting, cut off his electronic
monitoring device to avoid supervision, and used controlled
substances. On March 16, 2016, Hunt cut off his electronic
monitor for the second time, robbed two convenience stores at
gunpoint, and shot an employee.
In its order denying Hunt’s motion to transfer, the dis-
trict court considered each of the applicable factors listed in
§ 43-276 and made specific findings. After weighing the vari-
ous factors, the district court concluded there was a sound basis
for retaining jurisdiction over the case and denied the motion
to transfer.
[8] When a district court’s basis for retaining jurisdiction
over a juvenile is supported by appropriate evidence, it can-
not be said that the court abused its discretion in refusing to
transfer the case to juvenile court.14 The record in this case
fully supports the reasoning of the district court, and we find
no abuse of discretion in denying Hunt’s motion to transfer the
case to juvenile court.
No A buse of Discretion
in Sentences
Hunt argues the district court abused its discretion by refus-
ing to enter disposition under the Nebraska Juvenile Code and,
instead, imposing consecutive prison sentences totaling 35 to
60 years, which he argues is excessive.
Hunt was convicted of (1) using a deadly weapon (fire-
arm) to commit a felony, a Class IC felony punishable by
14
Id.
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imprisonment for a mandatory minimum of 5 years and a
maximum of 50 years15; (2) robbery, a Class II felony punish-
able by imprisonment for 1 to 50 years16; and (3) first degree
assault, a Class II felony punishable by imprisonment for 1 to
50 years.17 And because Hunt was under 18 years of age when
he committed his crimes, the district court had the discretion to
make disposition under the Nebraska Juvenile Code:
Except when a term of life is required by law, whenever
the defendant was under eighteen years of age at the
time he or she committed the crime for which he or she
was convicted, the court may, in its discretion, instead of
imposing the penalty provided for the crime, make such
disposition of the defendant as the court deems proper
under the Nebraska Juvenile Code.18
The district court denied Hunt’s request for disposition
under the juvenile code, explaining that at the time he com-
mitted the violent armed robbery for which he was being
sentenced, he was under juvenile probation supervision for
committing violent armed robberies in 2015 and “obviously
[was] getting no benefits from the supervision of the juvenile
court.” Moreover, the court reasoned that due to the serious
danger Hunt posed to the community, it was necessary that he
be incarcerated well beyond the age of majority. We find no
abuse of discretion in denying Hunt’s motion for disposition
under the juvenile code.
[9] Nor do we find an abuse of discretion in the sentences
imposed. 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
15
See Neb. Rev. Stat. §§ 28-1205(1)(c) (Reissue 2016) and 28-105(1) (Supp.
2015).
16
See Neb. Rev. Stat. § 28-324 (Reissue 2016) and § 28-105(1).
17
See Neb. Rev. Stat. § 28-308 (Reissue 2016) and § 28-105(1).
18
§ 29-2204(5).
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any applicable legal principles in determining the sentence to
be imposed.19
[10,11] When imposing a sentence, the sentencing court is
to consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense
and (8) the amount of violence involved in the commission of
the crime.20 Generally, it is within a trial court’s discretion to
direct that sentences imposed for separate crimes be served
either concurrently or consecutively.21 This is so even when
offenses carry a mandatory minimum sentence, unless the stat-
ute requires that consecutive sentences be imposed.22
The sentence imposed on each of Hunt’s convictions was
well within the statutory limits, and the record shows the
court considered and applied the necessary sentencing fac-
tors. Hunt’s criminal history was significant, his crimes were
violent and involved firearms, and his behavior was escalating
despite the services and supervision provided in juvenile court.
Moreover, Hunt’s presentence report concluded he was at a
high risk to reoffend. We cannot find an abuse of discretion in
the sentences imposed.
CONCLUSION
For the aforementioned reasons, the judgment of the district
court is affirmed.
A ffirmed.
Wright, Miller-Lerman, and K elch, JJ., not participating.
19
State v. Stone, supra note 8.
20
Id.
21
Id.
22
Id.