State v. Brunsen ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/01/2022 01:08 AM CDT
- 368 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRUNSEN
Cite as 311 Neb. 368State of Nebraska, appellee, v.
Mark A. Brunsen, appellant.
___ N.W.2d ___
Filed April 15, 2022. No. S-21-354.
1. Convictions: Appeal and Error. An appellate court reviews decisions
of whether to set aside an eligible conviction under Neb. Rev. Stat.
§ 29-2264 (Cum. Supp. 2020) for an abuse of discretion.
2. Convictions: Courts: Public Health and Welfare. Neb. Rev. Stat.
§ 29-2264 (Cum. Supp. 2020) allows a sentencing court to set aside an
eligible conviction if it finds doing so is in the “best interest” of the
offender and consistent with the public welfare.
3. 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.
4. Judges. The proper administration of the law demands not only that
judges refrain from actual bias, but that they avoid all appearances
of unfairness.
5. Judges: Recusal. A judge should recuse himself or herself when a liti-
gant demonstrates that a reasonable person who knew the circumstances
of the case would question the judge’s impartiality under an objective
standard of reasonableness, even though no actual bias or prejudice
was shown.
6. Judges: Appeal and Error. A trial judge on occasion will misspeak,
and every ill-advised word will not be the basis for reversible error.
7. Judges: Recusal: Waiver. Failing to request a judge’s recusal when
aware for an adequate period of time of the court’s conduct or beliefs
forming the alleged basis for the recusal operates as a waiver of
that right.
8. Judges: Recusal: Time. The issue of judicial disqualification is timely
if submitted at the earliest practicable opportunity after the disqualifying
facts are discovered.
- 369 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRUNSEN
Cite as 311 Neb. 3689. Courts: Convictions. The statutory mandate of Neb. Rev. Stat.
§ 29-2264 (Cum. Supp. 2020) that the court consider “[a]ny other
information the court considers relevant” does not empower the court
to rest its decision on irrelevant or erroneous facts or misperceptions of
the law.
10. Courts: Convictions: Prosecuting Attorneys. The court may, in its
discretion, give weight to the county attorney’s recommendation with
respect to a petition under Neb. Rev. Stat. § 29-2264 (Cum. Supp. 2020),
but it is not obliged to do so.
11. Statutes: Appeal and Error. An appellate court gives statutory lan-
guage its plain and ordinary meaning and will not read into a statute a
meaning that is not there.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed.
Kevin Ruser and Ryan P. Sullivan, of University of Nebraska
Civil Clinical Law Program, and Jayden Barth and Rachel T.
Dick, Senior Certified Law Students, for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ., and Meismer, District Judge.
Freudenberg, J.
I. INTRODUCTION
This case presents an appeal from the denial of a petition to
set aside a conviction pursuant to Neb. Rev. Stat. § 29-2264(Cum. Supp. 2020). The petitioner, with the assistance of a pub-
licly funded pro bono program at the University of Nebraska
College of Law, has been pursuing set asides of several eligible
convictions. All preceding petitions had been successful, and
the State supported the present set aside request.
The district court expressed concern at the hearing regard-
ing a recent weapons conviction. It also voiced certain mis-
understandings, corrected by the State, about the effects of
- 370 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRUNSEN
Cite as 311 Neb. 368setting aside convictions and whether other judges had fully
reviewed the petitioner’s criminal record. The court hypoth-
esized that as a result of the petitioner’s crimes being set aside,
he could, ultimately, commit a future act of domestic terrorism
and the media would direct blame upon the courts for having
simply “signed off” on the process. The court also questioned
whether the petitioner’s representation by a publicly funded
educational program was a good use of taxpayer money. The
petitioner asserts the court’s ruling was based upon untenable
and unreasonable reasoning and impermissible bias and, thus,
was an abuse of discretion.
II. BACKGROUND
Mark A. Brunsen appeals from the denial of his motion
to set aside, pursuant to § 29-2264, his 1988 conviction of
the Class I misdemeanor of theft by receiving a stolen item,
$100 to $300. He was sentenced to 4 months in jail, which
he served.
1. Prior History and Behavior
After Sentencing
At the hearing, Brunsen’s attorney, from the civil clinic at
the University of Nebraska College of Law, pointed out that
Brunsen, who was then 51 years of age, has, since a convic-
tion in 2017, committed no crimes other than minor traffic
offenses. Brunsen had “turned [his] life around,” is gainfully
employed, and is involved with the local community through
volunteering.
Brunsen works as a truckdriver and has, for the past 2 years,
been employed as an owner/operator leased to a transportation
company. He was trying to set aside all eligible prior convic-
tions in order to obtain a transportation worker card, or “TWIC
card,” issued by the “TSA and Homeland Security,” which
would allow him to take shipping containers in and out of
railyards. He also wished to obtain a “HazMat Safety Permit
[which] would allow him to haul for local co-ops.”
- 371 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRUNSEN
Cite as 311 Neb. 368Brunsen testified that the conviction he was seeking to set
aside arose from him being “one of the individuals in a sto-
len car.” Brunsen felt “[a]shamed, terrible” about that convic-
tion and was “hanging with the wrong people.” He acknowl-
edged a number of “run-ins with the law” from his “teen
years through [his] 30s.” He regretted doing “any of those
things back then” and wished he “would have got straightened
out sooner.”
Brunsen explained that he was seeking to set aside the 1988
conviction “to continue on the successful path that I’ve gotten
on now and be judged on my character and my merits instead
of my past criminal history and offenses.” He said, “I’m not
trying to erase my prior mistakes, but I’m — I don’t want to
be defined by them.”
Brunsen’s criminal history, entered into evidence at the hear-
ing, shows numerous prior convictions, beginning when he was
a teenager. These generally involved nonviolent misdemeanor
crimes of dishonesty and continued largely unabated until
Brunsen approached his forties. In addition to the 1988 con-
viction, Brunsen’s record contains the following convictions
in Nebraska, excluding minor traffic infractions. Brunsen’s
criminal record reflects that several of these convictions were
set aside in 2020.
(a) 1980s
In 1986, Brunsen was found guilty of backing against traffic
and leaving the scene of a property damage accident. In 1987,
he was found guilty of being a minor in possession of liquor
and of stealing money or goods less than $300. In 1988, he
was found guilty of two counts of stealing money or goods less
than $300. He was also found guilty of making a false state-
ment, liquor consumption in a prohibited place, and minor in
possession of liquor. In 1989, Brunsen was convicted of felony
forgery in the second degree, misdemeanor theft by unlawful
taking, failure to appear on a citation, and three counts of steal-
ing money or goods less than $300.
- 372 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRUNSEN
Cite as 311 Neb. 368(b) 1990s
In 1990, Brunsen was convicted of making a false statement.
In 1991, he was found guilty of unlawful possession or con-
sumption of alcohol by a minor and making a false statement.
He was also convicted of making a false statement to a police
officer and of possessing, selling, or discharging an unlaw-
ful firearm. In 1992, Brunsen was convicted of two counts of
theft by unlawful taking. In 1993, Brunsen had misdemeanor
convictions of insufficient funds check under $100, stealing
money or goods less than $500, and failing to appear in court.
In 1994, he was convicted of attempting a Class III or IIIA
felony, failure to appear, and of an insufficient funds check
under $100. In 1995, Brunsen was convicted of issuing a bad
check of less than $100, driving during suspension, possessing
stolen property, possessing drug paraphernalia, and failure to
appear in court.
In 1996, Brunsen was convicted of operating a motor vehi-
cle without a license, negligent driving, and failure to appear
in court. In 1997, he was convicted of injuring or destroying
property of another and negligent driving. In 1998, Brunsen
was convicted of false reporting, selling alcohol to a minor,
shoplifting, fraudulently obtaining property under $100, and
failure to appear. He was convicted in 1999 of violating
probation, having fictitious plates/unlawful display, and no
valid registration.
(c) 2000 to 2012
Brunsen had misdemeanor convictions in 2000 of shoplift-
ing, fraudulently obtaining property under $100, issuing a bad
check for less than $100, stealing money or goods less than
$300, failure to appear, and attempt of a Class IV felony. He
had misdemeanor convictions in 2001 of issuing a bad check
for less than $100, possessing drug paraphernalia, and operat-
ing a motor vehicle with a suspended license. In 2002, Brunsen
was convicted of driving during revocation, stealing money
or goods less than $300, and no proof of insurance. In 2003,
- 373 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRUNSEN
Cite as 311 Neb. 368Brunsen was convicted of stealing money or goods less than
$500 and failure to appear in court. In 2004, he was convicted
of having fictitious plates/unlawful display. In 2008, he was
found guilty of driving under the influence, first offense, and
failing to appear in court. In Colorado, Brunsen was convicted
in 2012 of theft under $500.
(d) 2017 Conviction
The most recent conviction, in 2017, was for attempted pos-
session of a deadly weapon by a prohibited person. Brunsen
was sentenced to 12 months’ probation.
Brunsen testified at the hearing that the plea-based 2017 con-
viction stemmed from his staying in a bedroom at his father’s
house in 2016. Brunsen’s brother owned a decorative knife that
the brother had hung on the wall of the bedroom. Brunsen was
using another knife, his own, to secure the bedroom door that
could not have a lock mounted in it. The weapons were discov-
ered during a drug raid served on the house.
Brunsen asserted that he did not know the knives were con-
sidered deadly weapons and prohibited. His counsel explained
that when Brunsen was convicted of the underlying felony
conviction, they were not. Brunsen described that “[i]t was
ignorant on my part,” he “should have been smarter and known
about that,” “[i]t was completely my fault. I — I should have
known better,” and he regretted it.
2. Discussion at Hearing
The State supported setting aside the 1988 conviction,
explaining:
Judge, in consideration of the statutory factors, the testi-
mony of . . . Brunsen, the passage of the period of time
between the subject offense and today’s date, as well as
the passage of time of law abiding conduct, the State
believes that the set aside should be granted and that . . .
Brunsen should be granted the relief sought. State has no
objection to the Court ordering that relief.
- 374 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRUNSEN
Cite as 311 Neb. 368Brunsen’s counsel argued Brunsen was a good candidate for
set aside because he was “owning up” to his mistakes. But the
court responded, “Do you not agree that accepting responsibil-
ity would also be accepting the consequences of the life you’ve
led to this point?”
When Brunsen’s counsel suggested that the most recent
2017 conviction was a “blip” of being “caught in a house that
had a couple knives,” the court responded that Brunsen was
caught in a “house that was being raided for drugs.”
(a) Other Set Asides, Legal Effect of Set Asides, and
Possible Future Bombing and Bad Publicity
The court expressed concern that if it granted the set aside,
Brunsen’s record would be “wiped clean,” and that employers
checking his criminal history would no longer see the crime.
The court then summarized its apprehensions about whether
Brunsen was “a good person to take a risk on,” in light of
Brunsen’s ambitions as a truckdriver and the court’s percep-
tion that other judges had “just signed off” on setting aside
Brunsen’s other convictions:
See, because here’s what I think: I go ahead and I set
this aside and then let’s say, God forbid, . . . Brunsen
goes out and does something really stupid. And then, you
know, the Journal Star picks up the story and decides,
well, geez, this guy, he went to court and he had all these
several things set aside, including felony convictions.
And, guess what, no judge even looked at the evidence,
they just signed off on it, because the County Attorney’s
Office signed off on it. I mean this — these are the kinds
of things that play around in my head.
And he’s a — you know, he’s got a CDL. He’s a truck
driver. He’s an owner/operator. He wants to be able to
transport hazardous materials. I mean these things are
like running through my head here, you know, the kinds
of things that, you know, maybe ended up down in
Oklahoma City, you know, not too many years ago, when
- 375 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRUNSEN
Cite as 311 Neb. 368I was still a child. You know, these are the things that
kind of run through my head, and I think, is this really,
you know, a good person to take a risk on. Those are the
things the Court has to consider, by State law. The Court
has to consider those things.
And it appears to me like I’m the only Court that
has even seen this evidence. And so it kind of lands in
my lap.
In response, the State clarified that in all the other cases set-
ting aside Brunsen’s eligible prior convictions, the courts had
before them the “JUSTICE entries,” Brunsen’s criminal his-
tory, and the factual basis for the convictions sought to be set
aside. In at least one case where the court set aside a convic-
tion, there was a hearing where Brunsen testified and the court
was presented with very similar evidence to that presented in
the current hearing.
The State also clarified the legal and practical effect of
the set aside, if granted. It explained that Brunsen’s criminal
record would still reflect the prior conviction, but that it was
set aside, and employers would be able to see everything asso-
ciated with the conviction.
The court did not expressly indicate during the hearing
whether it accepted these clarifications, but it made no further
legal assertions indicating disregard for such clarifications.
(b) Alleged Commentary on
“Clean Slate Program”
During the course of the hearing, Brunsen’s counsel noted
that of the approximately 200 clients he had worked with
through the “Clean Slate Program,” Brunsen was one of the best
candidates for setting aside prior convictions. This led to the
court’s inquiring about the program, which counsel explained
usually involved referrals from veterans ­organizations and
vocational rehabilitation counselors to work with prior crimi-
nals to rehabilitate their records, through the “mechanisms that
our Legislature has given” in order to “incentivize people to
stay on the right path and to reduce recidivism.”
- 376 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRUNSEN
Cite as 311 Neb. 368Brunsen’s counsel, in arguing for set aside, pointed out
it had been 32 years since the crime in question. The court
pointed out that Brunsen has had a lot of convictions since the
crime he was seeking to set aside. Counsel responded he did
not disagree. The court then said, “And this is — this is how
we’re spending our tax dollars in education, as well.” When
Brunsen’s counsel responded with his belief these were tax
dollars “really well spent,” the court interjected that “reason-
able minds could differ.”
3. Court’s Order
The court did not pronounce its decision at the hearing.
Four days after the hearing, the court issued its written disposi-
tion. The court’s order stated simply, “The Court, being fully
advised in the premises, now finds that the requested relief
should be and hereby is denied.”
Thus, it overruled Brunsen’s motion to set aside his 1988
conviction. The court did not make any explicit findings of fact
or articulate its reasoning in the order.
III. ASSIGNMENT OF ERROR
Brunsen assigns that the district court abused its discretion
by refusing to grant his petition to set aside his conviction.
IV. STANDARD OF REVIEW
[1] An appellate court reviews decisions of whether to set
aside an eligible conviction under § 29-2264 for an abuse
of discretion. 1
V. ANALYSIS
[2] Section 29-2264 allows a sentencing court to set aside
an eligible conviction if it finds doing so is in the “best
interest” of the offender and consistent with the public wel-
fare. 2 Subsection (4) of § 29-2264 sets forth that in deter-
mining whether to set aside the conviction, the court “shall
1
See State v. Kudlacz, 288 Neb. 656, 850 N.W.2d 755 (2014).
2
See Woodward v. Lahm, 295 Neb. 698, 890 N.W.2d 493 (2017).
- 377 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRUNSEN
Cite as 311 Neb. 368consider” (a) the behavior of the offender after sentencing;
(b) the likelihood that the offender will not engage in further
criminal activity; and (c) any other information the court con-
siders relevant. Subsection (5) of § 29-2264 states that “[t]he
court may grant the offender’s petition and issue an order set-
ting aside the conviction when in the opinion of the court the
order will be in the best interest of the offender and consistent
with the public welfare.”
Other provisions of subsection (5) of § 29-2264 describe
the positive effects for the applicant of having a conviction set
aside. The order setting aside the conviction shall nullify the
conviction, remove all civil disabilities and disqualifications
imposed as a result of the conviction, and notify the offender
to consult with any attorney regarding the effect of the order,
if any, on the offender’s ability to possess a firearm under state
or federal law.
However, subsection (6) of § 29-2264 provides that setting
aside a conviction shall not preclude the use of the conviction
for numerous other matters expressly set forth therein, includ-
ing determining the sentence on any subsequent conviction of
a criminal offense; proving the conviction as evidence of the
commission of the offense in the event an offender is charged
with a subsequent offense and the penalty provided by law is
increased if the prior conviction is proved; using the conviction
as evidence of commission of the offense for purposes of deter-
mining whether an application filed or a license issued under
childcare laws should be denied, suspended, or revoked; and
determining eligibility for, or obligations relating to, a com-
mercial driver’s license.
[3] The parties agree that the decision of whether to set
aside a conviction pursuant to § 29-2264 is discretionary, and
in exercising its discretion, the court must consider the factors
specified therein. 3 An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or
3
See, State v. Kudlacz, supra note 1; State v. Wester, 269 Neb. 295, 691
N.W.2d 536 (2005).
- 378 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRUNSEN
Cite as 311 Neb. 368unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. 4
Brunsen argues that the district court’s decision was arbi-
trary and capricious, and untethered from statutory factors, and
that it violated due process and deprived him of a just result
and substantial rights. He elaborates that the district court
impermissibly relied on a “fear of personal backlash from
the press” and a biased belief that the “Clean Slate Program
was a misuse of taxpayer money.” 5 He asserts the court also
made an unwarranted comparison of Brunsen to a violent mass
murderer rather than conducting a realistic analysis, based on
the objective evidence before it, of whether Brunsen might
­reoffend in the future. Further, Brunsen asserts the court’s
decision was influenced by a misunderstanding of the function
of a set aside, conflating it with record sealing and believing
employers would no longer be able to see it, as well as by a
misapprehension that other courts setting aside Brunsen’s other
convictions had not fully considered Brunsen’s record. Finally,
Brunsen argues courts should give substantial weight to the
State’s recommendations with respect to petitions to set aside
convictions, and the court in this case did not.
1. Bias
[4,5] We first address Brunsen’s claims of bias. The proper
administration of the law demands not only that judges refrain
from actual bias, but that they avoid all appearances of unfair-
ness. 6 A judge should recuse himself or herself when a litigant
demonstrates that a reasonable person who knew the circum-
stances of the case would question the judge’s impartiality
under an objective standard of reasonableness, even though no
actual bias or prejudice was shown. 7
4
In re Interest of Victor L., 309 Neb. 21, 958 N.W.2d 413 (2021).
5
Brief for appellant at 8.
6
See Franks v. Franks, 181 Neb. 710, 150 N.W.2d 252 (1967). See, also,
State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998).
7
State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
- 379 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRUNSEN
Cite as 311 Neb. 368[6] We have recognized that certain comments made from
the bench are “‘too intemperate to be ignored.’” 8 On the other
hand, “‘a trial judge on occasion will misspeak’” and “‘every
ill-advised word will not be the basis for reversible error.’” 9
While some of the judge’s commentary in this case was ill
advised, we do not read the record as reflecting a bias against
the “Clean Slate Program” or the law that the judge was called
upon to implement.
The judge’s commentary was made in the context of
Brunsen’s particular circumstance of having a lengthy crimi-
nal record. In other words, the judge was questioning the use
of tax dollars to bring the petition at issue, not such petitions
generally. The extent of the petitioner’s criminal history is a
relevant and proper consideration in determining the likeli-
hood that the offender will not engage in further criminal
activity and whether the order will be consistent with the pub-
lic welfare. The comments were insufficient to question the
judge’s impartiality.
[7,8] In any event, failing to request a judge’s recusal when
aware for an adequate period of time of the court’s conduct or
beliefs forming the alleged basis for the recusal operates as a
waiver of that right. 10 The issue of judicial disqualification is
timely if submitted at the earliest practicable opportunity after
the disqualifying facts are discovered. 11 Here, there was ade-
quate time, between the commentary now complained of and
the court’s issuance of its ruling, for Brunsen’s counsel to have
moved for the judge to recuse herself. Because no timely issue
of disqualification was submitted below, it was waived.
8
State v. Pattno, supra note 6, 254 Neb. at 741, 579 N.W.2d at 508, quoting
U.S. v. Bakker, 925 F.2d 728 (4th Cir. 1991).
9
Id.10
See, In re Interest of J.K., 300 Neb. 510, 915 N.W.2d 91 (2018); State v.
McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004); State v. Lotter, 255 Neb.
456, 586 N.W.2d 591 (1998), modified on denial of rehearing 255 Neb.
889, 587 N.W.2d 673 (1999).
11
In re Interest of J.K., supra note 10.
- 380 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRUNSEN
Cite as 311 Neb. 3682. Irrelevant, Erroneous, or
Speculative Information
[9] The greater part of Brunsen’s argument is that the court’s
decision was based on misinformation and unjustified, imagi-
nary scenarios. We have said that due process requires that
sentencing judges consider only constitutionally acceptable
and relevant information as the basis for a sentence. 12 This is
consistent with precedent of the U.S. Supreme Court that due
process protections against arbitrary government decisions give
the offender a right to a rational procedure of selecting a sen-
tence based upon relevant considerations and accurate informa-
tion. 13 In other contexts, we have said that judicial discretion
is not an absolute to be exercised arbitrarily, but is a legal dis-
cretion. 14 We conclude the statutory mandate of § 29-2264 that
the court consider “[a]ny other information the court considers
relevant” does not empower the court to rest its decision on
irrelevant or erroneous facts or misperceptions of the law. And
the parties do not suggest otherwise.
However, we find in this case that the court did not rest its
decision on irrelevant or erroneous facts. First, whether the
court misunderstood that other courts had just “signed off” on
setting other convictions aside is largely irrelevant. The court’s
obligation, regardless, was to independently consider the peti-
tion before it, and the record shows it did so.
As for the court’s concerns about the set aside wiping
Brunsen’s record clean, such that employers would no ­longer
see his prior convictions, the State clarified at length this
12
See State v. Pattno, supra note 6. See, also, State v. Cerritos-Valdez, 295
Neb. 563, 889 N.W.2d 605 (2017); State v. Barker, 231 Neb. 430, 436
N.W.2d 520 (1989).
13
See, United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592(1972); Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690(1948). See, also, California v. Ramos, 463 U.S. 992, 103 S. Ct. 3446, 77
L. Ed. 2d 1171 (1983).
14
See Schleif v. State, 131 Neb. 875, 270 N.W. 510 (1936).
- 381 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRUNSEN
Cite as 311 Neb. 368was not the case. Further, while not speaking in terms of
employers, per se, § 29-2264 itself conveys that set asides do
not wipe one’s record clean. Finally, Brunsen’s criminal record,
which had been received by the court as evidence, showed all
his prior convictions, separately indicating which ones were set
aside. We will not presume from the judge’s silence that the
judge did not take the State’s clarifications to heart or carefully
review Brunsen’s criminal record before issuing the order. Nor
will we presume the judge failed to read and properly under-
stand § 29-2264 prior to issuing the order. The trial judge is
presumed to be familiar with and to have applied the proper
rules of law, unless it clearly appears otherwise. 15
We do not read the court’s discussion of the Oklahoma City
bombing as a determination that Brunsen has a propensity
for violence, which was based on an imaginary scenario and
complete speculation rather than a realistic analysis of whether
Brunsen might reoffend in the future. Nor do we believe
the record reflects that the court’s decision was improperly
influenced by the fear of imagined bad publicity. While we
discourage such colorful hypothesizing, the court was making
the point that it felt a serious and independent responsibility to
evaluate whether granting Brunsen’s set aside of his conviction
was consistent with the public welfare, which was in doubt
due to an extensive criminal history. The court’s point was
dramatized, but it does not appear the court believed, based
on a loose association of trucks and dangerous materials, that
Brunsen’s criminal record was predictive of mass murder. And
we note, further, that this commentary took place before the
State clarified the set aside would not mean Brunsen’s prior
convictions were hidden from employers or from the federal
authorities that would issue the transportation credentials he
wished to obtain.
15
See, Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011);
State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003). See, also, United
States v. Tucker, supra note 13.
- 382 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRUNSEN
Cite as 311 Neb. 3683. State’s Recommendation
[10,11] The court’s point that it was not obliged to simply
“sign[] off” on the petition to set aside the conviction because
the county attorney had done so is well taken. While the court
may, in its discretion, give weight to the county attorney’s
recommendation, we disagree with Brunsen’s argument that it
had an obligation to do so. No such obligation is set forth in
§ 29-2264. We give statutory language its plain and ordinary
meaning and will not read into a statute a meaning that is
not there. 16
VI. CONCLUSION
In conclusion, we disagree with Brunsen’s contention that
the district court’s decision was arbitrary and capricious and
untethered from statutory factors. Rather, the court implicitly
found that setting aside Brunsen’s 1988 conviction was incon-
sistent with the public welfare, after considering the likelihood,
based upon an extensive criminal history with a conviction as
recent as 2017, that Brunsen would not engage in further crimi-
nal activity. Abuse of discretion is a deferential standard of
review. 17 And we cannot say that the court abused its discretion
in denying Brunsen’s petition to set aside his 1988 conviction.
The district court’s order is affirmed.
Affirmed.
Heavican, C.J., not participating.
16
See, e.g., Lozier Corp. v. Douglas Cty. Bd. of Equal., 285 Neb. 705, 829
N.W.2d 652 (2013).
17
See, e.g., State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).