State v. Dyer ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/09/2017 09:13 AM CST
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. DYER
Cite as 298 Neb. 82
State of Nebraska, appellee, v.
A nthony P. Dyer, appellant.
___ N.W.2d ___
Filed October 27, 2017. No. S‑16‑742.
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: Appeal and Error. A determination of whether there
are substantial and compelling reasons under Neb. Rev. Stat.
§ 29‑2204.02(2)(c) (Supp. 2015) why a defendant cannot effectively
and safely be supervised in the community is within the trial court’s
discretion, and a decision to withhold probation on such basis will not
be reversed on appeal absent an abuse of discretion.
Petition for further review from the Court of Appeals, Moore,
Chief Judge, and R iedmann and Bishop, Judges, on appeal
thereto from the District Court for Lancaster County, John A.
Colborn, Judge. Judgment of Court of Appeals affirmed.
Mark E. Rappl for appellant.
Douglas J. Peterson, Attorney General, Erin E. Tangeman,
and, on brief, George R. Love for appellee.
Heavican, C.J., Wright, Miller‑Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
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298 Nebraska R eports
STATE v. DYER
Cite as 298 Neb. 82
Per Curiam.
NATURE OF CASE
Anthony P. Dyer pled no contest to a charge of enticement
by electronic communication device in the district court for
Lancaster County. The court sentenced Dyer to 2 years’ impris-
onment and 12 months’ postrelease supervision. Dyer appealed
his sentence to the Nebraska Court of Appeals and claimed
that the district court had imposed an excessive sentence. Dyer
argued that because the charge to which he pled was a Class IV
felony, Neb. Rev. Stat. § 29‑2204.02 (Supp. 2015) required the
court to impose a sentence of probation unless there were sub-
stantial and compelling reasons why he could not effectively
and safely be supervised in the community. Dyer asserted that
the district court in this case failed to articulate such substan-
tial and compelling reasons. The Court of Appeals rejected
Dyer’s arguments and affirmed the sentence imposed by the
district court. State v. Dyer, 24 Neb. Ct. App. 514, 891 N.W.2d
705 (2017).
We granted Dyer’s petition for further review. Although we
clarify the standards with respect to sentencing pursuant to
§ 29‑2204.02, we agree with the Court of Appeals’ ultimate
determination that the district court did not abuse its discre-
tion, and we therefore affirm the Court of Appeals’ disposition
of this appeal.
STATEMENT OF FACTS
Dyer pled no contest to a charge of enticement by electronic
communication device pursuant to a plea agreement in which
the State agreed not to pursue any additional charges arising
out of the underlying investigation. The factual basis for the
plea was, generally, that on November 17 and 18, 2015, Dyer,
who was 30 years old at the time, communicated online and
through text messages with an investigator Dyer believed to be
a 13‑year‑old girl. The communications included discussion of
sexual activity, and Dyer sent a picture of his genitalia to the
investigator. Dyer arranged a meeting at a specific location,
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STATE v. DYER
Cite as 298 Neb. 82
and he was arrested when he arrived at the arranged meeting
place. The court accepted the plea.
Thereafter, the district court sentenced Dyer to 2 years’
imprisonment and 12 months’ postrelease supervision. In its
sentencing order, the court stated that it found, “pursuant to
NEB. REV. STAT. § 29‑2260 [(Supp. 2015)],” that
substantial and compelling reasons, as checked on the
attached sheet, exist why the defendant cannot effec-
tively and safely be supervised in the community on
probation and that imprisonment of the defendant is nec-
essary for the protection of the public because the risk
is substantial that, during any period of probation, the
defendant would engage in additional criminal conduct
and because a lesser sentence would depreciate the seri-
ousness of the defendant’s crime and promote disrespect
for the law.
The sheet that was attached to, and referenced in, the order
stated: “Pursuant to Neb. Rev. Stat. § 29‑2260, the court
finds the following substantial and compelling reasons (those
checked) why the defendant cannot effectively and safely be
supervised in the community on probation[.]” Thereunder were
listed 21 generically phrased reasons; the court had placed an
“X” next to the following 5 of the 21 reasons: (1) “A lesser
sentence would depreciate the seriousness of the crime”; (2)
“[a] lesser sentence would promote disrespect for the law”; (3)
“[i]ncarceration is necessary to protect the safety and security
of the public, including the victim(s) in this case”; (4) “[t]he
crime caused or threatened serious injury or harm”; and (5)
“[t]he circumstances indicate that the defendant understood
the consequences of his or her actions and the potential harm
to others.”
At the sentencing hearing, which was held the same day
the sentencing order was entered, the court stated that in
determining the appropriate sentence, it had considered the
comments of Dyer and his attorney and the information on
Dyer’s behalf that was included in the presentence report. The
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STATE v. DYER
Cite as 298 Neb. 82
court stated that it could not ignore “the serious nature of this
offense and all of the surrounding facts and circumstances,”
and it recounted various factors it considered. These included
the benefits to Dyer of the plea agreement, the results of test-
ing and evaluation of Dyer, and specific facts and circum-
stances surrounding the offense Dyer committed. The court
then stated that it found substantial and compelling reasons
why Dyer could not be effectively and safely supervised in the
community on probation. The court’s comments at the sen-
tencing hearing regarding substantial and compelling reasons
were virtually identical to the comments set forth above that
were included in the sentencing order.
Dyer appealed to the Court of Appeals, and his sole assign-
ment of error was that the district court imposed an excessive
sentence. He argued that the court failed to articulate substan-
tial and compelling reasons, beyond the nature of the crime
itself, why probation would not be appropriate. The Court of
Appeals rejected Dyer’s arguments and affirmed. State v. Dyer,
24 Neb. Ct. App. 514, 891 N.W.2d 705 (2017).
The Court of Appeals found no abuse of discretion in the
sentence imposed. The Court of Appeals noted that under
Neb. Rev. Stat. § 28‑833 (Reissue 2016), enticement by
electronic communication device is a Class IV felony, and
that the maximum sentence for a Class IV felony is 2 years’
imprisonment and 12 months’ postrelease supervision. The
sentence imposed was within the statutory limits. The Court
of Appeals also noted that § 29‑2204.02, which we quote later
in the opinion, provides that if a defendant is convicted of a
Class IV felony, the court shall impose a sentence of proba-
tion unless there are substantial and compelling reasons why
the defendant cannot effectively and safely be supervised in
the community. The Court of Appeals further noted that the
determination of whether “substantial and compelling rea-
sons” are present under § 29‑2204.02 shall be made by refer-
ence to, but not limited to, the criteria set forth in Neb. Rev.
Stat. § 29‑2260(2) and (3) (Supp. 2015), which list grounds
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STATE v. DYER
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which shall be accorded weight either in favor of or opposed
to probation.
With these statutes in mind, the Court of Appeals rejected
Dyer’s argument to the effect that the district court abused
its discretion when it withheld probation based solely on the
nature of the crime. Dyer had argued that when the Legislature
enacted § 29‑2204.02 and related statutes, it intended a pre-
sumption of probation for Class IV felonies, including entice-
ment by electronic communication device.
The Court of Appeals found Dyer’s argument without merit,
because (1) § 29‑2260 and, consequently, § 29‑2204.02 require
regard for the nature of the offense when considering proba-
tion versus imprisonment and (2) the district court in this case
did not rely solely on the nature of the offense. The Court of
Appeals determined that the record showed that the district
court considered not only the nature of the offense generally
but also the nature of the specific violation in this case, as well
as factors such as the substantial risk that Dyer would engage
in criminal conduct while on probation, the risk of a lesser
sentence depreciating the seriousness of the offense, and the
risk of promoting disrespect for the law.
As specific facts in the record that supported its determi-
nations, the Court of Appeals noted that Dyer communicated
with a person he believed to be 13 years old, he set up a meet-
ing with that person, and he followed through by showing
up at the arranged meeting site with condoms. The Court of
Appeals also noted that the district court relied on an evalu-
ation which determined that Dyer’s risk for reoffending was
in the “­moderate‑high risk category.” The Court of Appeals
concluded that although Dyer’s sentence was at the maximum,
it was within the statutory range, and that the district court did
not abuse its discretion when it imposed a sentence of impris-
onment rather than probation.
We granted Dyer’s petition for further review.
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STATE v. DYER
Cite as 298 Neb. 82
ASSIGNMENT OF ERROR
Dyer claims that the Court of Appeals erred when it affirmed
the sentence imposed by the district court, and in particular the
district court’s decision to impose a sentence of imprisonment
rather than probation.
STANDARDS 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. State v. Jones, 297 Neb. 557, 900 N.W.2d 757
(2017). A judicial abuse of discretion exists when the reasons
or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. Id.
[3] A determination of whether there are substantial and
compelling reasons under § 29‑2204.02(2)(c) why a defendant
cannot effectively and safely be supervised in the community
is within the trial court’s discretion, and a decision to withhold
probation on such basis will not be reversed on appeal absent
an abuse of discretion. See State v. Baxter, 295 Neb. 496, 888
N.W.2d 726 (2017).
ANALYSIS
The offense for which Dyer was convicted was a Class IV
felony which occurred on November 17 and 18, 2015. Because
the relevant portions of § 29‑2204.02 became effective August
30, 2015, the sentencing in this case was subject to the provi-
sions of § 29‑2204.02 relating to Class IV felonies. Recently,
in State v. Baxter, supra, we set forth standards to be followed
by trial courts when sentencing a defendant for a Class IV
felony pursuant to § 29‑2204.02 and by appellate courts when
reviewing such sentencing. Because the Court of Appeals did
not reference Baxter in its published opinion in this case,
we granted further review to determine whether the Court of
Appeals’ analysis in this case comports with the principles we
set forth in Baxter. Although we find it necessary to clarify
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STATE v. DYER
Cite as 298 Neb. 82
certain aspects of the Court of Appeals’ analysis, we agree with
the Court of Appeals’ ultimate conclusion that the district court
did not abuse its discretion when it sentenced Dyer to 2 years’
imprisonment and 12 months’ postrelease supervision.
Dyer’s argument regarding the sentence imposed in this case
focuses on the district court’s decision to impose a sentence of
imprisonment rather than probation. Regarding sentencing for a
Class IV felony, § 29‑2204.02 provides in relevant part:
(2) If the criminal offense is a Class IV felony, the
court shall impose a sentence of probation unless:
(a) The defendant is concurrently or consecutively sen-
tenced to imprisonment for any felony other than another
Class IV felony;
(b) The defendant has been deemed a habitual criminal
pursuant to section 29‑2221; or
(c) There are substantial and compelling reasons why
the defendant cannot effectively and safely be supervised
in the community, including, but not limited to, the crite-
ria in subsections (2) and (3) of section 29‑2260. Unless
other reasons are found to be present, that the offender
has not previously succeeded on probation is not, stand-
ing alone, a substantial and compelling reason.
(3) If a sentence of probation is not imposed, the
court shall state its reasoning on the record, advise the
defend­ant of his or her right to appeal the sentence, and
impose a sentence as provided in subsection (1) of this
section.
Subsections (2)(a) and (b) of § 29‑2204.02 were not relevant
in this case, and therefore the district court’s decision to with-
hold a sentence of probation and to sentence Dyer to impris-
onment was based on its finding of substantial and compelling
reasons to do so under subsection (2)(c).
Dyer argues that the Court of Appeals misconstrued
the intent of § 29‑2204.02 and related statutes which, he
argues, require a presumption of probation. He also argues
that § 29‑2204.02 and related statutes put the focus on
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STATE v. DYER
Cite as 298 Neb. 82
the characteristics of the defendant and why that particu-
lar defend­ ant is not a proper candidate for probation. He
contends that certain factors upon which the district court
focused, such as “depreciate the seriousness of the crime”
and “promote disrespect for the law,” incorrectly focused on
the nature of the crime rather than the specific defendant. The
Court of Appeals found no merit to Dyer’s arguments.
In State v. Baxter, 295 Neb. 496, 504, 888 N.W.2d 726,
733 (2017), although we did not use a phrase stating that
“§ 29‑2204.02(2) creates a presumption of probation” as
the proper sentence for a Class IV felony, we did note that
“§ 29‑2204.02(2) effectively adds a general limitation on a
court’s discretion in choosing between probation and incar-
ceration with respect to a Class IV felony, because it requires
a court to impose a sentence of probation for a Class IV
felony unless certain specified exceptions are present.” While
in Baxter we indicated that § 29‑2204.02 requires a sentence
of probation in the absence of one or more of the specified
exceptions, we also stated that the trial court has discretion to
determine the existence of the exception for “substantial and
compelling reasons” set forth in § 29‑2204.02(2)(c). But to
the extent that the Court of Appeals in this case did not recog-
nize that § 29‑2204.02 “tips the balance . . . toward probation”
in Class IV felonies, see Baxter, 295 Neb. at 506, 888 N.W.2d
at 734, we disapprove of its reasoning.
Dyer’s argument that § 29‑2204.02(2)(c) puts the focus
on the characteristics of the defendant has some support in
the text of the statute. Section 29‑2204.02(2)(c) specifies
that the court must find “substantial and compelling reasons
why the defendant cannot effectively and safely be super-
vised in the community.” Such phrase focuses on the char-
acteristics of the defendant and whether such characteristics
indicate that the particular defendant cannot effectively and
safely be supervised in the community. But the statute at
§ 29‑2204.02(2)(c) continues by stating that such substantial
and compelling reasons include, but are not limited to, “the
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Cite as 298 Neb. 82
criteria in subsections (2) and (3) of section 29‑2260,” and
§ 29‑2260 includes traditional sentencing criteria, including
consideration of the nature of the crime. Therefore, the appro-
priate considerations under § 29‑2204.02(2)(c), when deciding
whether the defendant can effectively and safely be supervised
in the community, include the traditional reasons that a court
is to consider when deciding whether to impose a sentence of
imprisonment or a sentence of probation.
As relevant to Dyer’s argument in the present case, one
criterion set forth in § 29‑2260(2) includes: “(c) A lesser sen-
tence will depreciate the seriousness of the offender’s crime
or promote disrespect for law.” Thus, contrary to Dyer’s
argument that such considerations are inappropriate because
they focus on the nature of the crime rather than the specific
defend­ant, the Legislature determined in § 29‑2204.02(2)(c)
that such criteria are and remain relevant to determining
whether the defendant can effectively and safely be supervised
in the community.
Dyer further argues that the Court of Appeals’ decision is
not consistent with State v. Baxter, 295 Neb. 496, 888 N.W.2d
726 (2017), because the district court did not state its reason-
ing on the record, but instead merely supplied a list of reasons
without articulating how the record supported such reasons. In
Baxter, we were differentiating between § 29‑2204.02(2)(c),
which requires “substantial and compelling reasons” in order
not to grant probation, and § 29‑2204.02(3), which requires
that “the court shall state its reasoning on the record” as to why
probation is denied. As explained in Baxter, the court’s reasons
could also be understood as its reasoning if sufficiently articu-
lated by the court “on the record” when it pronounces sentence
or by the court’s sentencing order. Applying these standards
to our review of the sentencing in this case, we note that in
its sentencing order, the district court, having listed what it
found to be substantial and compelling reasons why Dyer
“cannot effectively and safely be supervised in the community
on probation,” found that “imprisonment of the defendant is
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Cite as 298 Neb. 82
necessary for the protection of the public.” The reasons set
forth by the district court were all valid considerations under
the language of § 29‑2204.02(2)(c).
Although the sentencing order itself merely listed the
reasons and did not provide the “reasoning” required by
§ 29‑2204.02(3), the district court’s comments at the sentenc-
ing hearing filled in the missing pieces of the court’s reason-
ing. The court noted specific findings from the record which
we recognize as supporting its determination that substan-
tial and compelling reasons against probation existed under
§ 29‑2204.02(2)(c). We note that at the time the district court
sentenced Dyer, it did not have the benefit of our decision in
Baxter, and therefore the district court was not as explicit in
showing its reasoning as a court would be in light of Baxter.
However, through its comments at the sentencing hearing when
combined with the sentencing order, the court set forth the
substantial and compelling reasons that it found to exist and
it set forth information from the record that supported such
reasons. On appeal, we can connect the court’s observations as
contained in the record to its finding of substantial and com-
pelling reasons, and we see that the record as a whole supports
the court’s findings. We therefore conclude that the district
court did not abuse its discretion when it determined that there
were substantial and compelling reasons why Dyer could not
effectively and safely be supervised in the community and
when it therefore imposed a sentence of imprisonment rather
than probation.
Finally, although Dyer’s arguments in support of further
review focus on the district court’s decision to impose a term
of imprisonment rather than probation, we also find no error
in the Court of Appeals’ determination that the district court
did not abuse its discretion with regard to the length of the
sentence it imposed.
CONCLUSION
Although we clarify certain standards relating to a sentenc-
ing decision under § 29‑2204.02, we agree with the Court
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STATE v. DYER
Cite as 298 Neb. 82
of Appeals’ ultimate determination that the district court did
not abuse its discretion when it sentenced Dyer to imprison-
ment in this Class IV felony. We therefore affirm the Court of
Appeals’ disposition of this appeal.
A ffirmed.
Miller‑Lerman, J., concurring.
I agree with the conclusion that the district court did not
abuse its discretion when it sentenced Anthony P. Dyer to
2 years’ imprisonment and 12 months’ postrelease supervi-
sion. I write separately to emphasize certain points regarding
the requirements under Neb. Rev. Stat. § 29‑2204.02 (Supp.
2015), with respect to a court’s decision whether to impose
a sentence of probation or a sentence of imprisonment when
the defendant has been convicted of a Class IV felony. With
certain exceptions, § 29‑2204.02 generally requires a court to
impose a sentence of probation for a Class IV felony. See State
v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017). These statu-
tory requirements relative to sentencing for a Class IV felony
differ significantly from the same decision when the defendant
has been convicted of a felony of a different class.
In Neb. Rev. Stat. § 29‑2260(2) (Supp. 2015), the Legislature
provided that when a defendant is convicted of “a misde-
meanor or a felony for which mandatory or mandatory mini-
mum imprisonment is not specifically required,” the sentencing
court generally has discretion to impose a sentence of proba-
tion rather than a sentence of imprisonment. The statute sets
forth factors that, while not controlling the court’s discretion,
would support a sentence of probation. But § 29‑2260(2) limits
the court’s discretion to impose a sentence of probation when
the court has found that for certain reasons, “imprisonment of
the offender is necessary for protection of the public.”
When the Legislature enacted § 29‑2204.02 as part of
2015 Neb. Laws, L.B. 605, it chose to set Class IV felonies
apart from other types of crimes with regard to the decision
whether to impose a sentence of imprisonment or a sentence of
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probation. We stated in Baxter, 295 Neb. at 506, 888 N.W.2d
at 734, that § 29‑2204.02(2) “generally tips the balance in sen-
tencing for a Class IV felony toward probation.” It does so by
requiring that when the offense is a Class IV felony, “the court
shall impose a sentence of probation unless” one or more of the
following is present: (1) The defendant is concurrently or con-
secutively sentenced to imprisonment for any felony other than
another Class IV felony, (2) the defendant has been deemed
a habitual criminal, or (3) there are substantial and compel-
ling reasons why the defendant cannot effectively and safely
be supervised in the community. § 29‑2204.02(2). We further
stated in Baxter that § 29‑2204.02(3) “reinforces this balance
[favoring probation] by obligating the court to state its reason-
ing for withholding probation on the record.” 295 Neb. at 506,
888 N.W.2d at 734.
I turn to the sentencing in this case to illustrate the appli-
cation of § 29‑2204.02 in sentencing for a Class IV felony.
Pursuant to § 29‑2204.02(2), the court was required to sen-
tence Dyer to probation unless it found one of the three
circumstances noted above to be present. In this case, as in
Baxter, the circumstances set forth in § 29‑2204.02(2)(a)
and (b) were clearly not present, and so the court needed to
determine under § 29‑2204.02(2)(c) whether there were “sub-
stantial and compelling reasons why the defendant cannot
effectively and safely be supervised in the community.” I note
that although § 29‑2204.02(2)(c) provides that such reasons
include, but are not limited to, “the criteria in subsections
(2) and (3) of section 29‑2260,” § 29‑2204.02(2)(c) includes
two requirements that expand this analysis when sentencing
for a Class IV felony beyond what would be required under
§ 29‑2260 when sentencing for any other class of felony or for
a misdemeanor.
First, although the reasons listed in § 29‑2260 are appropriate
considerations under § 29‑2204.02(2)(c) and, under § 29‑2260,
the court is required to find only that the reasons exist,
with respect to a Class IV felony under § 29‑2204.02(2)(c),
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the court must further find that such reasons are “substantial
and compelling.” Second, while the focus of § 29‑2260(2)
is on determining whether “imprisonment of the offender
is necessary for protection of the public,” the focus of
§ 29‑2204.02(2)(c) is on determining whether “the defendant
cannot effectively and safely be supervised in the community.”
I respectfully suggest that, as Dyer urges, this requirement
emphasizes the specific characteristics of the defendant rather
than the general nature of the crime he or she has commit-
ted. In my view, the Legislature has taken into account the
general nature of an offense when it classifies the offense,
and in § 29‑2204.02(2)(c), the Legislature expressed a policy
that offenses it has classified as Class IV felonies are the ones
for which probation is generally an appropriate punishment,
absent specific exceptions relating to the particular defendant.
In this respect, I recognize that the manner in which a particu-
lar defendant committed an offense, in contrast to the general
nature of the offense, can be indicative of that defendant’s
individual characteristics and therefore relevant to the analysis
under § 29‑2204.02(2)(c).
In the present case, along with the majority and the
Nebraska Court of Appeals, I would conclude that the dis-
trict court did not abuse its discretion when it found under
§ 29‑2204.02(2)(c) that there were substantial and compelling
reasons why Dyer could not effectively and safely be super-
vised in the community. In this regard, as I read the record, the
district court appropriately gave weight to its finding that “the
risk is substantial that, during any period of probation, [Dyer]
would engage in additional criminal conduct.”
At the sentencing hearing, the district court noted facts
which supported this finding. This included evidence that
Dyer had not only committed the charged offense of entic-
ing by electronic communications a person he thought to be a
13‑year‑old, he took the further steps of setting up a meeting
and followed through by showing up at the arranged meet-
ing place and time. The district court also noted that certain
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testing showed Dyer to be in the moderate‑to‑high category
for risk to reoffend. Although Dyer points to other materials
indicating that he was at a lower risk, the district court did not
abuse its discretion when it gave greater credence to the evi-
dence of a higher risk. Taken together, the parts of the record
noted by the district court supported the finding that there was
a substantial risk that during a period of probation, Dyer might
engage in conduct similar to that shown in this case. And,
more to the point of an analysis under § 29‑2204.02(2)(c), I
believe that such substantial risk constitutes a substantial and
compelling reason why Dyer in particular could not effec-
tively and safely be supervised in the community. I believe
this consideration in itself is sufficient to support the district
court’s decision to withhold probation and impose a term
of imprisonment; accordingly, I do not think it necessary to
examine each reason cited by the district court.
As a general matter, I believe that when a factor such as
“a lesser sentence would depreciate the seriousness of the
crime and promote disrespect for the law” is cited to support
a finding under § 29‑2204.02(2)(c), the court should take care
to show that such consideration is a substantial and compel-
ling reason why the specific defendant could not effectively
and safely be supervised in the community. I recognize that
such factors, being considerations listed in § 29‑2260(2) and
(3), are ones that the Legislature has deemed to be appro-
priate considerations under § 29‑2204.02(2)(c). However, as
noted above, the determination with regard to a Class IV
felony under § 29‑2204.02(2)(c) is different from the deter-
mination with respect to any other class of offense under
§ 29‑2260. Thus, the court’s invocation of the considerations
in § 29‑2260(2) and (3) must be specific to the defendant
and his or her specific offense and not a determination that
the general offense is one that should carry a punishment of
imprisonment. Such a generalized determination of the appro-
priate punishment for an offense is for the Legislature to make
when it classifies a statutory offense, and by classifying an
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offense as a Class IV felony, the Legislature has indicated
in § 29‑2204.02(2) its determination that such offense is one
for which probation is generally an appropriate punishment,
absent specific exceptions.
Finally, I want to note the importance of the “reasoning”
requirement of § 29‑2204.02(3) to the balance the Legislature
created in the statute. As we stated in State v. Baxter, 295 Neb.
496, 506, 888 N.W.2d 726, 734 (2017), in § 29‑2204.02(2),
the Legislature “generally tips the balance in sentencing for
a Class IV felony toward probation” and it “reinforces this
balance by obligating the court [in § 29‑2204.02(3)] to state
its reasoning for withholding probation on the record.” In this
case and in Baxter, we have stressed that “reasoning” is more
than merely a list of reasons. In this case, the district court
attached to its sentencing order a sort of checklist of poten-
tial “substantial and compelling reasons” and checked those
that it found to be present. A checklist is clearly helpful to a
court by guiding its analysis of relevant considerations and by
communicating and summarizing its findings, but in my view,
courts should not fall into a habit of relying on such a checklist
as a substitute for the “reasoning on the record” requirement
of § 29‑2204.02(3). Instead, reasoning under § 29‑2204.02(3)
requires analysis of why the record in a specific case supports
the court’s determination that substantial and compelling rea-
sons exist why the specific defendant cannot effectively and
safely be supervised in the community; such analysis is not
fulfilled by a checklist of potential reasons on which certain
reasons are checked off.
In this case and in Baxter, the requirements of § 29‑2204.02
were still fairly new at the time of sentencing. In our consid-
eration, we have afforded the sentencing courts some leeway
in how explicitly they articulated the connection between the
record and the required findings under § 29‑2204.02(2)(c), and
we have affirmed the sentence if the record as a whole sup-
ports proper reasoning, even if the court did not explicitly state
its reasoning as required by § 29‑2204.02(3). In the future, it
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. DYER
Cite as 298 Neb. 82
will be more conducive to appellate review if sentencing courts
explicitly state their reasoning rather than relying on the appel-
late court to make the connection.
As we indicated in Baxter, the reasoning requirement of
§ 29‑2204.02(3) has the purpose of explaining the court’s
reasoning to the defendant, and it helps to focus the court’s
analysis where the court is required to explicitly set forth the
reasoning behind its findings which support its decision not
to impose probation. Because § 29‑2204.02 tips the balance
toward probation, as we stated in Baxter, “if the court is hav-
ing difficulty articulating its reasoning for imposing a sentence
of imprisonment on the record,” it may suggest that “the court
should impose a sentence of probation.” 295 Neb. at 506, 888
N.W.2d at 734.
After having expressed the foregoing cautions, I agree
with the majority’s conclusion that the district court did not
abuse its discretion in this case, and I therefore concur that
the decision of the Court of Appeals on further review should
be affirmed.