State v. Hurd ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/02/2020 09:08 AM CDT
- 393 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. HURD
Cite as 307 Neb. 393
State of Nebraska, appellee, v.
Kenneth E. Hurd, appellant.
___ N.W.2d ___
Filed October 2, 2020. No. S-19-919.
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. 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. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the
lower court.
4. ____: ____. An appellate court will not resort to interpretation to
ascertain the meaning of statutory words that are plain, direct, and
unambiguous.
5. Courts: Sentences. A sentencing court has wide latitude and discretion
to impose any sentence within the statutory limits.
Appeal from the District Court for Seward County: James C.
Stecker, Judge. Affirmed.
Jim K. McGough and Nathan S. Lab, of McGough Law,
P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
- 394 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. HURD
Cite as 307 Neb. 393
Heavican, C.J.
INTRODUCTION
Kenneth E. Hurd pled no contest to a misdemeanor charge
of child abuse. He was sentenced to 1 year’s imprisonment. He
appealed, and we moved this case to our docket to answer the
question of whether, under Neb. Rev. Stat. § 81-1848 (Cum.
Supp. 2018), a victim may both fill out a victim impact state-
ment to be included in the presentence investigation report
and also write and read a separate letter to be offered at the
defendant’s sentencing hearing. We conclude that the plain lan-
guage of § 81-1848 allows both a victim impact statement and
a written letter and that Hurd’s sentence was not excessive. We
accordingly affirm.
FACTUAL BACKGROUND
Hurd was charged by information with incest. Pursuant to
a plea agreement, Hurd subsequently pled no contest to one
count of misdemeanor child abuse. In return for Hurd’s no con-
test plea, the State agreed to recommend probation.
A presentence investigation report was completed. The vic-
tim included a victim impact statement, consisting of responses
to a questionnaire drafted by the probation office, and ­suggested
that she believed probation would be appropriate. The proba-
tion officer completing the report indicated the same.
At the sentencing hearing, the State offered a factual basis
alleging that Hurd resided with his wife and the alleged victim
in this case and that Hurd subjected the victim to emotional
trauma and physical abuse. The State also requested that the
victim be permitted to read aloud a separate letter that she had
written to Hurd. That request was granted over Hurd’s objec-
tion. The contents of the letter were read into the record, and
the letter itself was entered into evidence. Hurd was subse-
quently sentenced to 1 year’s imprisonment.
Hurd appeals.
- 395 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. HURD
Cite as 307 Neb. 393
ASSIGNMENTS OF ERROR
Hurd assigns, renumbered, that the district court abused its
discretion by (1) allowing the victim to submit a statement to
be included in the presentence investigation report and allow-
ing her to also read a separate letter that was then offered into
evidence for purposes of sentencing and (2) relying on state-
ments suggesting that Hurd had committed first degree sexual
assault in sentencing him to the maximum 1-year sentence of
imprisonment allowable for his conviction for misdemeanor
child abuse.
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. 1 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. 2
[3] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court. 3
ANALYSIS
Interpretation of § 81-1848(1)(d).
In his first assignment of error, Hurd argues that the district
court erred in allowing the victim to provide a victim impact
statement for the presentence investigation report and to also
read and offer to the court a separate, written statement.
As relevant, § 81-1848 provides:
(1) Victims as defined in section 29-119 shall have the
. . . right[]:
....
1
State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020).
2
Id.
3
State v. Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. HURD
Cite as 307 Neb. 393
(d) To be notified by the county attorney by any means
reasonably calculated to give prompt actual notice of
the following:
....
(iv) The victim’s right to make a written or oral impact
statement to be used in the probation officer’s prepa-
ration of a presentence investigation report concerning
the defendant;
....
(vii) The victim’s right to submit a written impact
statement at the sentencing proceeding or to read his or
her impact statement submitted pursuant to subdivision
(1)(d)(iv) of this section at the sentencing proceeding.
We held in State v. Galindo, 4 and reiterated in State v. Thieszen, 5
that § 81-1848 of the Nebraska Crime Victim’s Reparations Act
provides a list of baseline rights and that the act “does not seek
to limit the sentencing court’s traditional discretion to consider
evidence from a variety of sources.”
Hurd’s assignment of error presents two issues—whether
the victim was entitled to submit both a victim impact state-
ment under § 81-1848(1)(d)(iv) and a written impact statement
under § 81-1848(1)(d)(vii) and whether the district court erred
in allowing the victim to read the second impact statement
at sentencing before making the written version part of the
record. These issues require this court to consider the language
of § 81-1848. There is no allegation on appeal that the State
violated the plea agreement.
[4] An appellate court will not resort to interpretation to
ascertain the meaning of statutory words that are plain, direct,
and unambiguous. 6
In this case, the language of § 81-1848 plainly states that
the victim had both the right to offer a written statement for
4
State v. Galindo, 278 Neb. 599, 670, 774 N.W.2d 190, 245 (2009).
5
See State v. Thieszen, 300 Neb. 112, 912 N.W.2d 696 (2018).
6
State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. HURD
Cite as 307 Neb. 393
the presentence investigation report under subsection (1)(d)(iv)
and to also offer a written impact statement at the time of
sentencing under subsection (1)(d)(vii). As the State notes, the
ability to do so seems to be a “peculiar quirk” of that section,
but the language is nevertheless plain in allowing both. 7 The
victim here did both, as was permitted by statute, and we find
no error in the district court’s allowing both to be considered
at sentencing.
We note that Hurd objected to the written letter offered at
sentencing on the ground that the victim had offered a written
statement for inclusion in the presentence investigation report.
We also note that Hurd further objected to facts relating to a
sexual assault included in the report. But Hurd did not seek
a continuance as a result of the reading or offering of the
victim’s letter, nor did he argue that the information alleged
in the letter read and offered at sentencing was unknown
to him.
We also observe that the same plain language set forth
above does not explicitly reserve to a victim the right to read
aloud a separate victim impact statement drafted for purposes
of sentencing, as occurred in this case. But as we have previ-
ously noted, the rights set forth in § 81-1848 are baseline rights
and do not limit a sentencing court’s discretion to consider
evidence from a variety of sources. Where Hurd has failed to
demonstrate that he was prejudiced by the victim’s reading her
letter, a written version was, in any case, made available to
the court. 8
The district court has discretion to consider many things in
determining a sentence, as will be discussed below. Allowing
this letter to be read, rather than simply offered, is consistent
with this discretion. Hurd’s first assignment of error is with-
out merit.
7
Brief for appellee at 11.
8
See State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. HURD
Cite as 307 Neb. 393
Consideration of Charges Dropped
Pursuant to Plea Agreement.
In his second assignment of error, Hurd assigns that the
district court erred in relying on allegations originally charged,
but ultimately dismissed, in order to sentence him to the maxi-
mum sentence allowed for his conviction.
The State relied on State v. Janis 9 to support its position that
it was not an abuse of discretion for the district court to con-
sider dismissed charges when sentencing a defendant:
“It must be assumed, we think, that a trial judge knows
the difference between information that is pertinent to the
issue before him and that which is unfounded rumor. The
law invests a trial judge with a wide discretion as to the
sources and types of information used to assist him in
determining the sentence to be imposed within statutory
limits.” It is hard for us to understand how a trial court
may properly consider information of the appellant’s
behavior if no charges are filed, but may not consider the
underlying facts if a charge is filed and later dismissed,
not because the facts are untrue, but due to a plea bargain.
While we do not mean to suggest . . . that a trial court is
free to consider any matter having no relevance or basis,
we do mean to say that a trial court is, indeed, given wide
discretion and where it appears that a sentence imposed
is within statutory and constitutional limitations, it will
not be disturbed on appeal in the absence of an abuse of
discretion on the part of the trial court.
Hurd argues that his case is distinguishable from Janis
because “the district court in this matter improperly con-
cluded that [Hurd] was guilty of a more serious and dismissed
charge and abused its discretion by excluding consideration
of a probationary sentence because the court believed that
[Hurd] would not admit to the more serious charge.” 10 Having
9
State v. Janis, 207 Neb. 491, 495, 299 N.W.2d 447, 449-50 (1980) (quot­
ing State v. Rapp, 184 Neb. 156, 165 N.W.2d 715 (1969)).
10
Brief for appellant at 12.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. HURD
Cite as 307 Neb. 393
reviewed the district court’s comments made at sentencing, we
disagree with this characterization.
[5] As noted above, we have observed that a sentencing
court has wide latitude and discretion to impose any sentence
within the statutory limits:
“It is a long accepted practice in this state that before
sentencing a defendant after conviction a trial judge has
a broad discretion in the source and type of evidence he
may use to assist him in determining the kind and extent
of punishment to be imposed within the limits fixed by
statute. Highly relevant, if not essential, to his determina-
tion of an appropriate sentence is the gaining of knowl-
edge concerning defendant’s life, character, and previous
conduct. In gaining this information, the trial court may
consider reports of probation officers, police reports, affi-
davits, and other information including his own observa-
tions of the defendant. A presentence investigation has
nothing to do with the issue of guilt. The rules governing
due process with respect to the admissibility of evidence
are not the same in a presentence hearing as in a trial in
which guilt or innocence is the issue. The latitude allowed
a sentencing judge at a presentence hearing to determine
the nature and length of punishment, other than in recidi-
vist cases, is almost without limitation as long as it is
relevant to the issue.” 11
The sentence imposed was supported by the facts of this
case and the victim’s statement, and it was within the district
court’s discretion. Hurd’s second assignment of error is with-
out merit.
CONCLUSION
We affirm the judgment of conviction and the sentence of
the district court.
Affirmed.
11
Rapp, supra note 9, 184 Neb. at 157-58, 165 N.W.2d at 716.