State v. Thieszen ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/24/2018 09:09 AM CDT
- 112 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 112State of Nebraska, appellee, v.
Sydney L. Thieszen, appellant.
___ N.W.2d ___
Filed June 1, 2018. No. S-17-539.
1. 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.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
3. Sentences: Evidence. A sentencing court has broad discretion as to
the source and type of evidence and information which may be used
in determining the kind and extent of the punishment to be imposed,
and evidence may be presented as to any matter that the court deems
relevant to the sentence.
4. Sentences. The appropriateness of a sentence is necessarily a subjec-
tive judgment and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts and circumstances
surrounding the defendant’s life.
5. 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.
6. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural back-
ground, (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.
- 113 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 1127. ____. Where a defendant was under the age of 18 when he or she com-
mitted a Class IA felony, Neb. Rev. Stat. § 28-105.02 (Reissue 2016)
dictates that the sentencing judge must also consider mitigating factors,
such as the defendant’s (1) age at the time of the offense, (2) impetuos-
ity, (3) family and community environment, and (4) ability to appreciate
risks and consequences of the conduct, as well as (5) the outcome of a
comprehensive mental health evaluation of the defendant conducted by
an adolescent mental health professional licensed in Nebraska.
Appeal from the District Court for York County: James C.
Stecker, Judge. Affirmed.
Jeffery A. Pickens, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Vaughan, District Judge.
Cassel, J.
I. INTRODUCTION
A court sentenced Sydney L. Thieszen to life imprison-
ment for a murder he committed at age 14. Pursuant to Miller
v. Alabama,1 Thieszen obtained postconviction relief. The
court resentenced Thieszen to 70 years’ to life imprisonment.
Because we find no abuse of discretion by the court, we affirm
Thieszen’s sentence.
II. BACKGROUND
1. Crime and Direct A ppeal
The facts and circumstances pertaining to Thieszen’s crimes
are set out in greater detail in our decision resolving his
direct appeal.2 In 1987, 14-year-old Thieszen shot and killed
1
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407(2012).
2
See State v. Thieszen, 232 Neb. 952, 442 N.W.2d 887 (1989).
- 114 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 112his 12-year-old sister, Sacha L. Thieszen. The State charged
Thieszen with first degree murder and use of a firearm in the
commission of a felony. Pursuant to a plea bargain, Thieszen
pled guilty to second degree murder and the use of a firearm
charge. In 1988, the district court imposed a sentence of life
imprisonment for second degree murder and a consecutive
sentence of 80 to 240 months’ imprisonment for the fire-
arm conviction.
On appeal, Thieszen claimed that the district court abused
its discretion in refusing to transfer his case to juvenile court
and in imposing an excessive sentence on the firearm charge.
We disagreed. We recognized that there was evidence Thieszen
could possibly be successfully rehabilitated during the approx-
imately 4 years that the juvenile court maintained jurisdiction
over him, but that the record also supported the court’s find-
ings that the crime was violent and that Thieszen may require
treatment beyond the age of majority.3 We noted that the
sentence for the firearm conviction was within the statutory
limits, and we could not say that the court abused its discretion
in imposing it.4
2. First Postconviction
and R etrial
In 1994, Thieszen filed a motion for postconviction relief,
alleging that the operative information was defective because
it failed to allege he acted with malice. The district court sus-
tained the motion and vacated Thieszen’s convictions.
The State then filed a second amended information which
charged Thieszen with first degree murder and use of a firearm
to commit a felony. A jury convicted Thieszen of the charges.
The court again imposed sentences of life imprisonment for
the murder conviction and a consecutive term of 80 to 240
months’ imprisonment for the use of a firearm conviction.
3
See id.4
See id.- 115 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 1123. Second Postconviction
(a) Initial Proceedings
In 2013, Thieszen filed a motion for postconviction relief
pursuant to the decision in Miller.5 The district court vacated
Thieszen’s life sentence, and the State appealed. We affirmed
the judgment and remanded the cause for resentencing.6
(b) Mitigation Hearing
In March 2017, the district court received extensive evi-
dence during a mitigation hearing.
Thieszen was born into an abusive environment. His natu-
ral mother was an alcoholic. On one occasion while she
was intoxicated, she tried to burn Thieszen’s eyes out with
a lighter. She stomped on him at one time. When Thieszen
was 2 or 3 years old, she threw him in a swimming pool. She
tried to run his hand through a meat grinder. Thieszen’s natu-
ral mother also smashed his toys as punishment and locked
him in closets. When Thieszen was approximately age 4, he
was removed from his natural mother’s custody due to abuse
and neglect.
After multiple foster care placements, Thieszen was placed
with Edwin and Joyce Thieszen. Edwin and Joyce adopted
Thieszen when he was 9 years old. At that time, Edwin and
Joyce had three biological children and two other adopted
children. Initially, Thieszen wanted to keep his distance from
the family. But after approximately 1 year, he became very
lovable and outgoing.
Although Edwin and Joyce offered a stable and structured
environment, it may not have been a nurturing one. A doctor
who evaluated Thieszen in connection with the adoption proc­
ess expressed some reservation that the family’s strong reli-
gious beliefs may be too restrictive for a child with Thieszen’s
background. Edwin and Joyce believed in corporal punishment
5
Miller v. Alabama, supra note 1.
6
See State v. Thieszen, 295 Neb. 293, 887 N.W.2d 871 (2016).
- 116 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 112for rule violations. Edwin testified that he spanked the chil-
dren when no other punishment worked and that he used his
hand, a belt, a hose, or “whatever was handy.”
When Thieszen was 12 years old, there was “a sudden
drastic change in his behavior.” His report cards reflected
much lower grades, he ceased performing his chores properly,
and he began shooting holes in the family’s buildings and
machinery. In January 1986, Thieszen began seeing Sandra
Kroeker, a counselor, due to concerns about his poor grades
and dishonesty. Kroeker felt that there was a great correla-
tion between Thieszen’s adolescent behavior and the abusive
relationship Thieszen had with his natural mother. Kroeker
diagnosed Thieszen with a conduct disorder. She testified that
Thieszen was immature in his ability to formulate and maintain
relationships, to express himself, to engage in effective deci-
sionmaking, and to control impulses.
In December 1986, the family learned that Thieszen had
been sexually molesting one of the family’s foster children.
After that point, Thieszen did not feel loved or wanted by his
family. And he felt ostracized at school because the children
there knew of his sexual assault on his foster sister.
There was also evidence of voyeuristic behavior. One of
Thieszen’s sisters testified that she noticed him watching her
as she sunbathed. He pried open the doorjamb on the bath-
room and would consistently be outside the bathroom door
while she was showering or changing. At one point, Thieszen
entered her bedroom during the middle of the night and lifted
her bed covers.
By the time Thieszen was 13 or 14 years old, he did not
have a good relationship with Joyce. He did not feel comfort-
able discussing issues with her. One of Thieszen’s classmates
testified that Thieszen often spoke about killing Joyce.
On the day of the murder, Thieszen wanted to run away
from home because he knew he was going to be punished
for a wrongdoing. When Sacha tried to stop Thieszen, he hit
her with a wooden rod, which caused bleeding. Sacha ran up
- 117 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 112the stairs to the bathroom, and as she was leaning over the
sink, Thieszen shot her in the back of the head. He put her
body in the bathtub and shot her twice more. Thieszen then
took the family’s van and left. He was apprehended in Kansas
days later.
The court received the testimony of two psychiatrists that
had been offered in connection with Thieszen’s request to
transfer his criminal case to juvenile court. One psychiatrist
opined that Thieszen was competent to stand trial and that he
was sane at the time of the offense. He found significance in
the type of abuse that Thieszen had experienced as a very small
child and the number of foster homes that he had been in prior
to adoption. He testified that Thieszen had a conduct disor-
der, meaning that he displayed behavior that was not socially
acceptable. The other psychiatrist, who interviewed Thieszen
in December 1987, testified that Thieszen was not psychotic
and was of average to slightly above-­average intelligence.
Dr. Kayla Pope, a board-certified child and adolescent psy-
chiatrist, testified at the mitigation hearing. She testified that
neuroscience research demonstrated that adolescent brains
were different from adult brains. Adolescent brains were in
“developmental transition” and were “characterized by nov-
elty seeking, risk taking, poor judgment and increased sub-
mission to peer pressure.” Pope explained that the prefrontal
cortex, which was the last part of the brain to develop, was
the part of the brain that overrides impulsive behavior and
allows the weighing of the risks and benefits of the decisions
one makes. Pope testified that there are significant differ-
ences between the brains of a 14-year-old and a 17-year-old.
According to Pope, adolescents “are thinking in the moment”
and lack the ability to see the long-term consequences of
their actions.
Pope testified that high levels of stress can impact brain
development. Early trauma would impair a child’s develop-
mental process. According to Pope, abuse by Thieszen’s natu-
ral mother would interfere with the formation of a secure
- 118 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 112attachment and would make Thieszen “untrusting” and “emo-
tionally and behaviorally very disregulated not knowing how
to respond to his environment.” Pope testified that Thieszen’s
early trauma and multiple placements in foster care affected
“how he would see the world and how he would respond to
the world.” And due to Thieszen’s experience of being abused
by his natural mother, Pope testified that corporal punishment
would be very inappropriate and would likely bring up prior
trauma and “make [Thieszen] more reactive as opposed to
helping him calm down and think through the situation.”
Pope reported that there was ample evidence that Thieszen
was impetuous beyond what was normal for his chrono-
logical age. She testified that Thieszen was very immature,
impulsive, and unable to calm himself at the time of the mur-
der. Pope believed Thieszen was behaving in an impulsive
way at the time of the murder and that he did not appreci-
ate the consequences of what he was doing. She reported
that Thieszen “struggled to modify his behavior in light of
the consequences he faced.” She noted that Edwin stated
Thieszen would repeatedly misbehave and would say that he
did not know why he did the things he did. As to Thieszen’s
intellectual capacity, Pope testified that he had a very high
IQ. But she explained that intelligence is the ability to know
things and to figure things out; it is not a marker for develop-
ment or maturity.
Pope performed a comprehensive mental health evaluation.
With regard to Thieszen’s prenatal history, Pope had concern
that his natural mother may have used drugs and alcohol
while pregnant, which would impact Thieszen’s brain devel-
opment and behavior. She testified that Thieszen had no sig-
nificant medical history and no substance abuse history prior
to the murder.
Pope testified that Thieszen had many infractions during
his first few years in prison, but that there was a “precipi-
tous drop” in those infractions as he aged. She saw no evi-
dence that Thieszen engaged in aggression or violent sexual
- 119 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 112behavior while incarcerated. Pope testified that Thieszen did
not meet criteria for any mental health issue. She did not
believe Thieszen had an antisocial personality disorder, stat-
ing that there was no evidence of any antisocial behavior in
the past 30 years. Pope testified that Thieszen had earned
his diploma through the GED program, had taken additional
coursework, and had been helping other inmates with their aca-
demic pursuits. Although there was evidence that Thieszen had
engaged in substance abuse while in prison, his last infraction
for it was in 2000. Pope testified that Thieszen had over 200
misconduct reports, but that many were for minor violations,
such as tattooing activities or having items not permitted in his
cell. Records showed that as of January 18, 2017, Thieszen had
only four misconduct reports in the previous 5 years. Of those
reports, the most serious offense was possessing or receiving
unauthorized articles, for which Thieszen received 7 days of
room restriction.
Pope testified that Thieszen had formed several significant
relationships that he had kept for several years. This demon-
strated his ability to form a support network and to cultivate
relationships that would help sustain him in the community.
And Pope testified that it was remarkable Thieszen had such
ability, because he had difficulty forming attachments early
in development, and that his ability to form such relationships
now is an indication of his emotional maturity. Pope testified
that Thieszen expressed remorse for the crime.
Dr. Kirk Newring performed a psychological evaluation
of Thieszen. On a diagnostic tool to assess violence risk and
psychopathy, Thieszen scored a 12, which was higher than the
community average of 6, but lower than the typical inmate
score of 22. Newring testified that individuals with scores
below 20 typically are not considered psychopathic. Newring
administered a personality inventory, which did not reveal any
major mental health problems. A tool to measure intelligence
showed that Thieszen had an average to above-average IQ.
Based on a violence risk assessment, Newring placed Thieszen
- 120 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 112at a low risk for future acts of violence. A violence risk assess-
ment tool showed that Thieszen “had some protective factors
present, which is predictive of a favorable response to com-
munity transition.” Those factors were intelligence, empathy,
coping skills, and self-control.
Newring’s diagnostic impressions were adjustment disor-
der with anxiety and antisocial personality disorder. Newring
explained that Thieszen met the criteria for a diagnosis of anti-
social personality disorder but cautioned that Thieszen had not
shown any of that criteria in the last decade.
Newring did not administer any sex offender assessment
tools because Thieszen, from the age of 18, had no sex-
related misconduct reports or charges. According to Newring,
Thieszen reported engaging in physical intimacies with female
staff members over the course of his incarceration. Newring
testified that those relationships would be potentially unhealthy
if they were still occurring, but that Thieszen described them
as “historical.”
In 2014, Newring administered a self-report measure to
assess the likelihood of substance abuse dependence. Based on
the testing, Newring had concerns that Thieszen would meet
criteria for cannabis use disorder.
Newring testified that Thieszen expressed remorse, regret,
and sorrow for his crime. According to Newring, Thieszen
“was likely in a very emotionally aroused situation and not
able to do rational, cognitive thinking that we would expect to
see in a cold logic situation.” Newring explained that an emo-
tionally aroused 14-year-old is different from a coldly logical
14-year-old and that a 14-year-old is much different from an
18-year-old. Newring asked Thieszen what, if anything, would
he change, and Thieszen answered that he would have told the
judge he did not want to be adopted by Edwin and Joyce.
A corrections officer at the prison who sees Thieszen on
nearly a daily basis testified that Thieszen was “[p]robably” a
good inmate. According to the officer, Thieszen did not cause
trouble and was respectful to corrections officers and other
- 121 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 112inmates. The officer further testified that Thieszen “just always
does everything he’s supposed to do” and that “[i]f you tell him
to do something, he does it.” According to the officer, Thieszen
knits, crochets, exercises, and paints. He testified that Thieszen
has many visitors. Five individuals wrote letters in strong sup-
port of Thieszen. A few of those individuals attached pictures
of Thieszen’s artwork and craftwork.
(c) Resentencing
At the time of resentencing, Thieszen was 44 years old and
had been incarcerated since 1987. Before imposing a sentence,
the court addressed the factors set forth in Neb. Rev. Stat.
§ 28-105.02(2) (Reissue 2016). The court sentenced Thieszen
to 70 years’ to life imprisonment for first degree murder, to be
served consecutively to the sentence he was currently serving
of 80 to 240 months’ imprisonment for the firearm conviction.
Thieszen filed a timely appeal.
III. ASSIGNMENTS OF ERROR
Thieszen assigns, reordered, that the district court abused its
discretion in (1) failing to strike certain letters from the pre-
sentence report, (2) allowing improper victim impact testimony
at the sentencing hearing, (3) imposing an excessive sentence,
(4) imposing a de facto sentence of life imprisonment without
parole in the absence of a finding of irreparable corruption, and
(5) imposing a disproportionate sentence upon him.
IV. STANDARD OF REVIEW
[1,2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.7 A judicial abuse of discretion exists when the rea­
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just
results in matters submitted for disposition.8
7
State v. Russell, 299 Neb. 483, 908 N.W.2d 669 (2018).
8
Id.- 122 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 112V. ANALYSIS
1. Letters in Presentence R eport
During the resentencing hearing, Thieszen’s counsel asked
that a number of letters in the presentence report be stricken.
He did not believe it was appropriate for the court to receive
letters from anonymous sources, and the court responded that
it would not consider anonymous letters. Thieszen’s counsel
also requested that the court not consider specific informa-
tion in letters that was baseless or inflammatory. The court
stated that it would give such a letter “the weight and cred-
ibility that it’s due and disregard any portions not supported
by the record.”
On appeal, Thieszen argues that the court abused its dis-
cretion by overruling his objections to letters which were
submitted by anonymous sources, which contained baseless
information, or which were intended to intimidate the judge
and encourage the imposition of an inappropriate sentence. We
disagree for two main reasons.
First, to some extent, the court granted the relief Thieszen
requested. The court stated that it would not consider unsigned
letters. The presentence report shows that the court struck a
number of letters. With regard to letters to which Thieszen
objected but which the court did not strike, the court stated that
it would give each letter the weight and credibility it was due
and that it would disregard portions that were not supported by
the record.
[3] Second, a sentencing court has broad discretion as to the
source and type of evidence and information which may be
used in determining the kind and extent of the punishment to
be imposed, and evidence may be presented as to any matter
that the court deems relevant to the sentence.9 We cannot say
that the court abused its broad discretion in declining to strike
all of the letters to which Thieszen objected.
9
State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).
- 123 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 1122. Victim Impact Testimony
The State informed the court that one of Thieszen’s sis-
ters wished to read a letter to the court under Neb. Rev. Stat.
§ 81-1848 (Cum. Supp. 2016). Thieszen’s counsel objected on
the basis that the sister is not a “victim” under the statute. But
the court stated that it would “give her an opportunity to read
her letter as an immediate family member.”
A statute sets forth rights for victims of crimes.10 Such a
victim has the right to submit a written impact statement at sen-
tencing or to read his or her impact statement at sentencing.11
But the statute gives such rights to “victims” as defined by
Neb. Rev. Stat. § 29-119 (Reissue 2016). Under § 29-119(2)(b),
a victim in the case of a homicide is “the nearest surviving
relative under the law as provided by section 30-2303 but does
not include the alleged perpetrator of the homicide.”
Thieszen contends that the court abused its discretion
in allowing improper victim impact testimony. Because
Thieszen’s parents are alive, Thieszen contends that they, but
not his sister, had the right to read their impact statements
at sentencing.
We rejected a similar challenge in State v. Galindo.12 In that
case, the defendant objected to victim impact statements on
the ground that not all of the family representatives qualified
as a “nearest surviving relative” under § 29-119. The sentenc-
ing court overruled the objection, and we found no error. We
stated: “The definition of ‘victim’ upon which [the defend­
ant] relies merely provides for a baseline right, under the
[Nebraska Crime Victim’s Reparations Act], to give a victim
impact statement. The [act] does not seek to limit the sentenc-
ing court’s traditional discretion to consider evidence from
a variety of sources.”13 Because we continue to believe this
10
See § 81-1848.
11
See § 81-1848(1)(d)(vii).
12
State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009).
13
Id. at 670, 774 N.W.2d at 245.
- 124 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 112reasoning is sound, we decline Thieszen’s invitation to over-
rule that aspect of Galindo.
The court did not abuse its discretion in allowing an oral
statement from Thieszen’s sister. The State advised the court
that the victims as defined in § 29-119—i.e., Edwin and
Joyce—“are elderly, they live out of state and for various rea-
sons don’t want to participate in the process.” It was not unten-
able for the court to allow the victims’ daughter to be heard
instead. This assignment of error lacks merit.
3. Excessiveness of Sentence
Thieszen’s primary complaint on appeal is that his sentence
is excessive for various reasons. The court imposed a sen-
tence of 70 years’ to life imprisonment. The sentence is within
the statutory limits of 40 years’ to life imprisonment.14 But
Thieszen contends that the court abused its discretion in impos-
ing the sentence.
Thieszen begins by comparing his sentence to that imposed
in State v. Jackson.15 In that case, the victim died of multiple
gunshot wounds. The State filed identical informations against
the defendant and two others, charging each with first degree
murder and use of a deadly weapon during the commission of
a felony. At the time of the murder, the defendant was nearly
18 years old. A jury found the defendant guilty of murder but
not guilty of the weapon charge, and the court imposed a sen-
tence of life imprisonment. Because the defendant was under
18 years old at the time of the murder, he was later resen-
tenced to 60 to 80 years’ imprisonment. Thieszen points out
that he was younger than the defendant in Jackson, but that the
defend­ant in Jackson received a lesser sentence.
[4] The lesser sentence imposed in Jackson does not per-
suade us that Thieszen’s sentence constitutes an abuse of discre-
tion. Significantly, there were questions about the defendant’s
14
See § 28-105.02(1).
15
State v. Jackson, 297 Neb. 22, 899 N.W.2d 215 (2017).
- 125 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 112level of participation in Jackson. Here, there is no dispute that
Thieszen murdered Sacha. But more importantly, we do not
“‘color match’” sentences.16 It would be virtually impossible
to find two murder cases which are the same in all respects.17
The appropriateness of a sentence is necessarily a subjective
judgment and includes the sentencing judge’s observation of
the defendant’s demeanor and attitude and all the facts and cir-
cumstances surrounding the defendant’s life.18 The fact that a
different offender with a different background received a lesser
sentence for a crime committed under different circumstances
does not mean that Thieszen’s sentence was excessive.
[5-7] 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.19 In determining a sentence to be imposed, relevant
factors customarily considered and applied are 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 Because
Thieszen was under the age of 18 when he committed a
Class IA felony, § 28-105.02 dictates that the sentencing judge
must also consider mitigating factors, such as the defendant’s
(1) age at the time of the offense, (2) impetuos­ity, (3) family
and community environment, and (4) ability to appreciate risks
and consequences of the conduct, as well as (5) the outcome
16
See State v. Ellis, 281 Neb. 571, 613, 799 N.W.2d 267, 302 (2011).
17
Id.18
State v. Castaneda, 295 Neb. 547, 889 N.W.2d 87 (2017), cert. denied ___
U.S. ___, 138 S. Ct. 83, 199 L. Ed. 2d 54.
19
State v. Russell, supra note 7.
20
Id.- 126 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 112of a comprehensive mental health evaluation of the defendant
conducted by an adolescent mental health pro­fessional licensed
in Nebraska.21
The district court considered the pertinent sentencing fac-
tors. It recognized that Thieszen was 14 years old at the time
of the offense and that at the time of resentencing, he was
divorced and had employment through “prison industries.” In
considering factors under § 28-105.02(2), the court acknowl-
edged that evaluations showed Thieszen was impetuous and
immature at the time of the offense. However, the court noted
that Thieszen purchased shells prior to the crime and that
because his gun had been taken away from him, there “was no
valid reason for [him] to purchase or possess shells except to
carry out previous threats to [his] family.” The court observed
that Thieszen’s natural mother was abusive and that he was
raised in an abusive environment until age 4. The court stated
that Edwin and Joyce raised Thieszen in a structured environ-
ment, that they disciplined Thieszen to correct his behavior, but
that Thieszen did not modify his behavior after being caught
doing something wrong. The court noted that Thieszen had
above-average intellectual capacity. It recognized that Thieszen
had never been hospitalized for any mental health reason and
that Newring indicated Thieszen was well adjusted. We can-
not say that the court abused its discretion in its assessment of
the factors.
We are cognizant of factors militating against Thieszen’s
culpability for the crime. According to Pope, Thieszen’s trau-
matic early childhood likely influenced his emotional and
cognitive development. There was evidence that Thieszen was
struggling mentally and emotionally prior to the murder and
that the only treatment provided was occasional therapy ses-
sions. According to Pope, “these factors would have interfered
with [Thieszen’s] ability to make rational decisions, appro-
priately consider risks and consequences, and to regulate his
21
See id.
- 127 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. THIESZEN
Cite as 300 Neb. 112behavior and impulses above and beyond the limitations that
are associated with adolescence.” Pope observed that over
time, Thieszen had taken on the roles of teacher and advi-
sor to other inmates and to the social network he had formed
outside of prison. These factors support the imposition of a
minimum sentence that is less than life imprisonment. The
court, by setting the minimum sentence at 70 years, imposed
such a sentence.
Thieszen also claims that his sentence amounted to a de
facto life sentence and that such a sentence was disproportion-
ate to the offense. According to Thieszen, his sentence of 70
years’ to life imprisonment means he will not be parole eligible
until age 53 and, if paroled, he will be on parole for the rest of
his life. But the sentence provides Thieszen with a “meaningful
and realistic opportunity to obtain release.”22 We have rejected
similar claims that a lengthy term-of-years sentence was a de
facto sentence of life imprisonment,23 and we see no reason to
revisit that conclusion here.
VI. CONCLUSION
We conclude that the district court did not abuse its discre-
tion in overruling Thieszen’s objections to letters in the pre-
sentence report, in allowing Thieszen’s sister to read her vic-
tim impact statement at the sentencing hearing, or in imposing
the sentence. We therefore affirm Thieszen’s murder sentence
of 70 years’ to life imprisonment.
A ffirmed.
22
State v. Smith, 295 Neb. 957, 979, 892 N.W.2d 52, 66 (2017), cert. denied
___ U.S. ___, 138 S. Ct. 315, 199 L. Ed. 2d 208.
23
See, State v. Russell, supra note 7; State v. Smith, supra note 22.