State v. Haley ( 1977 )

Spencer, J.

Defendant, Milton J. Haley, appeals from a sentence of 18 months to 5 years in the Nebraska Penal and Correctional Complex on a charge of unlawfully assaulting another. Defendant was originally charged with first degree sexual assault. He pleaded nolo contendere to the amended charge. He prosecutes this appeal, alleging the sentence is excessive. We affirm.

Haley was charged with sexual assault, first degree, for committing fellatio. As the result of plea bargaining, an amended information was filed, charging him with assaulting another inmate while being confined in the Nebraska Penal and Correctional Complex. The evidence disclosed that Haley forced a cell mate to engage in fellatio with him.

The possible penalty for the crime to which defendant pled nolo contendere is imprisonment in the Nebraska Penal and Correctional Complex for not more than 5 years. The minimum, therefore, would be one-third of the statutory maximum, or 20 months. The sentence Haley received is 18 months to 5 years, which is within the statutory limits. We have repeatedly said that a sentence within statutory limits will not be disturbed on an appeal absent an abuse of discretion by the trial court. State v. McCurry, 198 Neb. 673, 254 N. W. 2d 698 (1977).

There has been no abuse of discretion here. Defendant relies on State v. Etchison, 188 Neb. 134, 195 N. W. 2d 498 (1972), and urges the court to examine his sentence in the light of the. criteria there stated. Defendant’s crime involved the use of force and intimidation. The crime was demeaning to the victim as well as being a vicious one. The criteria enumerated in Etchison, supra, was based on adherence to the following premise: “The primary function of the criminal law is to protect individuals and society from the depredations of the criminally bent.”

The defendant at the time of the offense was serving a sentence for assault with intent to commit robbery, a felony offense. There was no abuse of discretion herein. The sentence is affirmed.

Affirmed.