State v. Horne , 315 Neb. 766 ( 2024 )

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www.nebraska.gov/apps-courts-epub/
01/19/2024 09:08 AM CST
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315 Nebraska Reports
STATE V. HORNE
Cite as 315 Neb. 766State of Nebraska, appellee, v.
Tristan T. Horne, appellant.
___ N.W.2d ___
Filed January 19, 2024. No. S-23-192.
1. Courts: Appeal and Error. A defendant’s removal from a problem-
solving court program is reviewed for an abuse of discretion.
2. Sentences: Appeal and Error. A sentence imposed within statutory
limits will not be disturbed on appeal in the absence of an abuse of dis-
cretion by the trial court.
3. ____: ____. An abuse of discretion takes place when the sentencing
court’s reasons or ruling are clearly untenable and unfairly deprive a
litigant of a substantial right and a just result.
4. Trial: Appeal and Error. A party is normally required to object to a
perceived error by a trial court in order to preserve that issue for appeal.
5. Appeal and Error. Plain error may be found on appeal when an error
unasserted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and fairness
of the judicial process.
Appeal from the District Court for Sarpy County: Stefanie
A. Martinez, Judge. Affirmed.
Christopher J. Lathrop, Deputy Sarpy County Public
Defender, and Savannah Kroll, Senior Certified Law Student,
for appellant.
Michael T. Hilgers, Attorney General, and Teryn Blessin for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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STATE V. HORNE
Cite as 315 Neb. 766Papik, J.
After pleading guilty to a charge of attempted possession
of a firearm by a prohibited person, Tristan T. Horne was
accepted into a problem-solving court program. On several
occasions during Horne’s participation in the program, the
district court sanctioned Horne for his failure to comply with
program requirements. Eventually, the State moved to remove
Horne from the program due to additional failures to follow
program requirements. Horne admitted to the alleged viola-
tions, and the district court removed Horne from the program.
The district court then sentenced Horne to a term of imprison-
ment on the charge to which he had earlier pled guilty. Horne
appeals, challenging his removal from the problem-solving
court program, the fact that the district court did not order
a presentence investigation before sentencing him, and the
length of his sentence. We find no reversible error and there-
fore affirm.
BACKGROUND
Horne’s Guilty Plea; Entry Into
Wellness Court Program.
This case began when the State charged Horne with pos-
session of a firearm by a prohibited person. The charges arose
from an incident in which Horne appeared on a video holding
a gun and making comments about killing himself.
Horne and the State later reached a plea agreement. Pursuant
to the agreement, Horne pled guilty to an amended charge of
attempted possession of a firearm by a prohibited person and
the State recommended that Horne be admitted to “Wellness
Court,” a problem-solving court program administered by the
district court. In such programs, sentencing is deferred fol-
lowing a guilty plea and the defendant instead participates in
a program that includes treatment, supervision, and judicial
oversight. See State v. Shambley, 281 Neb. 317, 795 N.W.2d
884 (2011). See, also, Neb. Rev. Stat. § 24-1302 (Reissue
2016) (amended by 2023 Neb. Laws, L.B. 50, effective
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STATE V. HORNE
Cite as 315 Neb. 766September 2, 2023); Neb. Ct. R. § 6-1201 et seq. (rev. 2022).
After successful completion of the program, participants are
often permitted to withdraw their pleas and have their charges
dismissed. See Shambley, supra. If, however, the participant
is removed from the program or withdraws before success-
ful completion, the conviction stands and the case proceeds
to sentencing on that conviction. See id. The district court’s
wellness court program is designed to assist defendants with
mental health diagnoses.
The district court accepted Horne’s guilty plea. It then con-
firmed on the record that Horne had read and reviewed with his
attorney a contract governing the terms of his participation in
the wellness court program. The district court also confirmed
that Horne agreed to adhere to the requirements of the con-
tract and that he understood that a failure to do so could result
in removal from the program. The district court additionally
advised Horne that if he was removed from the program, he
could be sentenced on the charge to which he had pled guilty.
The district court accepted Horne into the wellness court pro-
gram and released him on a signature bond. The full contract
governing Horne’s participation in the wellness court program
is not included in the record on appeal.
In a journal entry and order memorializing the hearing at
which Horne pled guilty and was accepted into the wellness
court program, the district court stated that Horne had volun-
tarily, knowingly, and intelligently waived his right to a pre-
sentence investigation.
Wellness Court Program.
Horne began participating in the wellness court program
shortly after the district court accepted him into the program
in April 2021. As part of the wellness court program, Horne
had frequent status hearings in the district court. During those
hearings, Horne reported on his weekly schedule, his progress
toward certain personal goals, and his meetings with proba-
tion officers and therapists. During several of those status
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STATE V. HORNE
Cite as 315 Neb. 766hearings, the district court sanctioned Horne for violations of
program requirements, including missed drug tests, missed
Alcoholics Anonymous meetings, dishonesty with probation
officers, and not completing community service hours ordered
by the district court.
At one point during Horne’s participation in the well-
ness court program, he admitted to “a relapse.” To address
the relapse, the district court ordered Horne to move into a
structured living facility. When Horne failed to move into a
structured living facility despite program staff notifying him
of an opening, the district court ordered Horne to move into
the facility or, if the space was no longer available, to report to
the county jail for a 1-day jail sanction. The record indicates
that Horne failed to report as ordered, and the district court
ordered a jail sanction.
As a result of Horne’s failure to follow directions of the
district court, the district court eventually ordered Horne to
remain in the county jail until a bed became available at a resi-
dential treatment facility. When a bed became available, Horne
was released to the facility, but was ordered to immediately
report to the county jail if he failed to successfully complete
treatment. Horne left the treatment facility without success-
fully completing treatment and failed to report to jail. Horne
later failed to appear at a status hearing, and the district court
issued a warrant for his arrest. Horne was arrested and again
placed in the county jail.
Horne was subsequently placed in another treatment facil-
ity and ordered to wear a GPS monitoring device at all times.
After Horne was unsuccessfully discharged from this treat-
ment facility, the State filed a motion in October 2022 seeking
Horne’s termination from the wellness court program. In the
motion, the State alleged multiple violations of Horne’s well-
ness court program contract. The motion alleged that Horne
had failed to appear for a wellness court program hearing;
that he had tested positive for marijuana while at his latest
residential treatment facility, but denied using; that he had
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STATE V. HORNE
Cite as 315 Neb. 766removed his GPS monitoring device; and that he had failed to
report directly to the county jail as required after his unsuc-
cessful discharge from the treatment facility. A warrant was
again issued for Horne’s arrest, and he was arrested.
Removal From Wellness Court
Program and Sentencing.
At a hearing on the motion to terminate Horne from the
wellness court program, Horne admitted to the allegations in
the State’s motion. After accepting Horne’s admissions, the
district court set another hearing for “disposition.”
The district court began the subsequent hearing by asking
Horne’s counsel if there was “any legal reason why we can’t
proceed to disposition.” Horne’s counsel said there was no
such reason. The district court then stated that “although a
presentence investigation report was not completed,” it would
take judicial notice of the State’s motion to remove Horne
from the wellness court program and would receive as exhibits
the affidavit of probable cause for Horne’s initial arrest, as
well as a document summarizing Horne’s criminal history.
Horne’s counsel, when given the opportunity to address
the district court, acknowledged that Horne “attempted to
participate” in the wellness court program but “did so with
not a whole lot of success.” He argued that Horne should be
permitted to remain in the wellness court program or should
be sentenced to a term of probation on the charge to which
he pled.
The district court declined to allow Horne to remain in the
wellness court program. On the charge to which Horne pled
guilty, the district court sentenced him to 6 to 20 years’ impris-
onment with credit for time he had already served.
Horne timely appealed, and we moved the case to our
docket.
ASSIGNMENTS OF ERROR
Horne assigns three errors. We have paraphrased those
errors as follows: the district court erred by (1) removing him
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STATE V. HORNE
Cite as 315 Neb. 766from the wellness court program, (2) sentencing him without
first ordering a presentence investigation, and (3) imposing an
excessive sentence.
STANDARD OF REVIEW
[1] We have not previously addressed the standard of
review that applies to a defendant’s challenge to removal
from a problem-solving court program. The Nebraska Court of
Appeals has held that a defendant’s removal from a problem-
solving court program is reviewed for an abuse of discretion.
See State v. Seaman, 28 Neb. App. 667, 947 N.W.2d 589(2020). We agree. Deciding whether to remove a defendant
from a problem-solving court program is much like decid-
ing whether to revoke a defendant’s probation or choosing a
sentence within the prescribed statutory range. Each depends
upon a trial court’s “unique familiarity with the facts and cir-
cumstances of a case and its judgment in balancing a host of
incommensurate and disparate considerations.” U.S. v. Ruiz-
Terrazas, 477 F.3d 1196, 1201 (10th Cir. 2007). We review a
decision to revoke probation, and a sentence imposed within
statutory limits, for abuse of discretion. See, e.g., State v. Ezell,
314 Neb. 825, 993 N.W.2d 449 (2023) (sentencing); State v.
Johnson, 287 Neb. 190, 842 N.W.2d 63 (2014) (revocation of
probation). We believe it appropriate to apply the same stan-
dard to a termination from a problem-solving court.
[2,3] A sentence imposed within statutory limits will not
be disturbed on appeal in the absence of an abuse of discre-
tion by the trial court. State v. Alkazahy, 314 Neb. 406, 990
N.W.2d 740 (2023). An abuse of discretion takes place when
the sentencing court’s reasons or rulings are clearly untenable
and unfairly deprive a litigant of a substantial right and a just
result. Id.ANALYSIS
Removal From Wellness Court Program.
Horne argues that the district court erred by removing
him from the wellness court program. Horne primarily argues
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STATE V. HORNE
Cite as 315 Neb. 766that the conduct underlying his conviction supports continued
participation in the wellness court program rather than a term
of incarceration. While he admits to “some struggles” with the
wellness court program, he argues he has attempted to fulfill
its requirements and the district court should have allowed him
to remain in the program. Brief for appellant at 21.
Saying that Horne’s had “some struggles” in the well-
ness court program is an understatement. As detailed above,
Horne violated requirements of the wellness court repeat-
edly. He missed drug tests; he was dishonest with probation
officers; he failed to complete ordered community service;
he missed Alcoholics Anonymous meetings; he did not report
to a structured living facility as ordered; he spent time in the
county jail as a result of sanctions; he failed to successfully
complete multiple residential treatment programs; he failed
to report to jail as ordered after leaving a treatment program;
he tested positive for marijuana, and then he denied using
while at a residential treatment program; he removed his
court-ordered GPS monitoring device. On several occasions,
the district court reminded Horne of the need to follow the
program’s requirements. Furthermore, the district court made
clear to Horne when he entered the program that he could be
removed from the program if he failed to comply with the pro-
gram’s requirements.
Horne’s argument in this case appears to be that he deserves
one more chance to comply with the requirements of the well-
ness court program. In particular, he points to a residential
treatment program he has not yet entered and argues he
should be allowed to remain in the wellness court program
and be placed there. We must keep in mind, however, our
abuse of discretion standard of review. A judicial abuse of
discretion exists only when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying a just result in matters submitted
for disposition. State v. Ramirez, 314 Neb. 419, 990 N.W.2d
550 (2023). In applying that standard of review here, we
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STATE V. HORNE
Cite as 315 Neb. 766are particularly hesitant to second-guess the district court’s
decision to remove Horne from the wellness court program,
in light of the substantial firsthand knowledge of Horne it
had through his participation in the program. Given Horne’s
multiple failures to comply with the requirements of the well-
ness court program and the district court’s familiarity with
Horne, we cannot say the district court’s decision in this case
concluding “enough was enough” was untenable. We thus
conclude the district court did not abuse its discretion by
removing Horne from the wellness court program.
Lack of Presentence Investigation Report.
Horne next argues that the district court erred by imposing a
sentence without first ordering a presentence investigation. He
argues such an investigation was required by Neb. Rev. Stat.
§ 29-2261(1) (Cum. Supp. 2022). That subsection provides, in
relevant part, as follows:
Unless it is impractical to do so, when an offender has
been convicted of a felony other than murder in the
first degree, the court shall not impose sentence without
first ordering a presentence investigation of the offender
and according due consideration to a written report of
such investigation.
Horne argues that decisions of this court have established
that it is mandatory for a district court to consider a pre-
sentence investigation report in sentencing unless such an
investigation would be impractical or the record demonstrates
the defendant made a knowing and intelligent waiver of a
presentence investigation. Horne claims that an investigation
would not have been impractical here and that the record
does not show that he knowingly and intelligently waived a
presentence investigation. The State counters by arguing that,
under the circumstances, an investigation was impractical and
that Horne knowingly and intelligently waived his right to
an investigation.
[4] Before turning to the parties’ arguments, we address
another issue: the fact that Horne made no objection to the
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STATE V. HORNE
Cite as 315 Neb. 766sentence being imposed without a presentence investiga-
tion, even after the district court announced on the record
that “a presentence investigation report was not completed.”
Generally speaking, we will not review an issue for prejudi-
cial error if the party fails to make a timely objection in the
court below. See State v. Childs, 309 Neb. 427, 960 N.W.2d
585 (2021). Under most circumstances, we require a party to
object to a perceived error by a trial court in order to preserve
that issue for appeal. State v. McSwine, 292 Neb. 565, 873
N.W.2d 405 (2016). As we have occasionally articulated the
principle, “[o]ne cannot silently tolerate error, gamble on a
favorable result, and then complain that one guessed wrong.”
In re Interest of Samantha L., 286 Neb. 778, 787, 839 N.W.2d
265, 272 (2013). See, also, State v. Kruse, 303 Neb. 799, 808,
931 N.W.2d 148, 155 (2019) (“[a]s a general rule, an appellate
court will not consider an argument or theory that is raised for
the first time on appeal”). Usually, when a party fails to object
to an alleged error by the trial court, we will, at most, review
the issue for plain error. See McSwine, supra. See, also, State
v. Roth, 311 Neb. 1007, 1014, 977 N.W.2d 221, 228 (2022)
(“[c]onsideration of plain error occurs at the discretion of an
appellate court”).
Our rule limiting appellate review when an issue was
not brought to the attention of the trial court serves impor-
tant purposes. As the U.S. Supreme Court has explained,
rules circumscribing review in the absence of a trial court
objection “encourage all trial participants to seek a fair and
accurate [proceeding] the first time around.” United States
v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 84 L. Ed. 2d 1(1985) (internal quotation marks omitted). Put another way,
rules limiting appellate review in the absence of a trial court
objection incentivize trial court objections “so that any errors
can be corrected before their full impact is realized.” State
v. Pearson, 775 N.W.2d 155, 161 (Minn. 2009). At the same
time, appellate courts’ limited discretion to recognize plain
error even in the absence of a lower court objection serves
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Cite as 315 Neb. 766as a backstop to potential injustice. See Hormel v. Helvering,
312 U.S. 552, 557, 61 S. Ct. 719, 85 L. Ed. 1037 (1941) (“[a]
rigid and undeviating judicially declared practice under which
courts of review would invariably and under all circumstances
decline to consider all questions which had not previously
been specifically urged would be out of harmony with . . .
rules of fundamental justice”).
Horne cannot dispute that it would be consistent with our
rules regarding trial court objections, as well as the purposes
those rules serve, to limit our review on this assignment of
error to whether the district court plainly erred by not order-
ing a presentence investigation. We anticipate, however, that
Horne would contend that precedent in prior cases involving
§ 29-2261(1) establishes that we should not limit our review
in this manner. As we will explain, we disagree.
In a line of prior cases, this court has explored whether
and under what circumstances a defendant can waive an argu-
ment that a trial court erred by not completing a presentence
investigation contemplated by § 29-2261(1). That line of cases
begins with State v. Hiross, 211 Neb. 319, 318 N.W.2d 291(1982). In that case, the trial court informed the defendant that
it was willing to order a presentence investigation in a mis-
demeanor case, but the defendant’s counsel advised the court
that the defendant did not want a presentence investigation
and desired to waive the trial court’s offer to obtain one. When
the defend­ant subsequently argued on appeal that the trial
court erred by not ordering a presentence investigation, this
court concluded that the defendant had “waived the court’s
offer” of a presentence investigation and was thus “not now in
a position to claim error.” Id. at 320, 318 N.W.2d at 292.
A few years later in State v. Tolbert, 223 Neb. 794, 394
N.W.2d 288 (1986), both the defendant and her counsel
informed the trial court that they wished to waive the presen-
tence investigation. After the trial court imposed a sentence
without completing a presentence investigation, however, the
defendant argued on appeal that the trial court erred by
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Cite as 315 Neb. 766not ordering a presentence investigation. Although this court
ultimately held that the trial court was not required to order
a presentence investigation because doing so would have
been impractical, we, citing Hiross, supra, also noted that a
defend­ant can waive an objection to a trial court’s decision
not to order a presentence investigation.
Over two decades later in State v. Qualls, 284 Neb. 929,
824 N.W.2d 362 (2012), we were confronted with yet another
case in which the defendant informed the trial court that he
desired to waive a presentence investigation and the trial
court proceeded to impose a sentence without ordering one. In
Qualls, the defendant later argued on appeal that the trial court
erred by failing to adequately advise him that he was entitled
to have a presentence investigation completed and for the trial
court to consider the report of that investigation in crafting a
sentence. In our opinion, we noted that § 29-2261(1) generally
makes presentence investigations mandatory in felony cases,
but citing Tolbert, supra, we noted that we had held that a
defendant can waive a presentence investigation. We observed
that while we had held that an otherwise mandatory presen-
tence investigation can be waived, we had not previously
addressed how such a waiver could be effectuated. Relying
on general propositions regarding waiver and the standards by
which defendants may waive constitutional rights to counsel
and to be present at trial, we ultimately held that a defendant
can waive a presentence investigation under § 29-2261(1) if
“it is apparent from the record that the defendant’s relinquish-
ment of the right was knowingly and intelligently made.”
Qualls, 284 Neb. at 933, 824 N.W.2d at 365. We later applied
this standard to find that a defendant waived a presentence
investigation in State v. Iddings, 304 Neb. 759, 936 N.W.2d
747 (2020).
We do not understand the line of cases we have just dis-
cussed as exempting defendants who raise an argument
based on § 29-2261(1) from our usual rule requiring a timely
objection in the trial court to preserve an issue for full
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defendant can effectuate a waiver of a presentence investiga-
tion. But our rule limiting review without a timely objection
in the trial court is not, strictly speaking, a waiver rule, but,
rather, a rule of forfeiture.
As the U.S. Supreme Court has explained, “[w]aiver is
different from forfeiture. Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the inten-
tional relinquishment . . . of a known right.” United States v.
Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 123 L. Ed. 2d 508(1993) (internal quotation marks omitted). See, also, Freytag
v. Commissioner, 501 U.S. 868, 894 n.2, 111 S. Ct. 2631,
115 L. Ed. 2d 764 (1991) (Scalia, J., concurring) (observing
that waiver and forfeiture are “really not the same”); U.S. v.
Staples, 202 F.3d 992, 995 (7th Cir. 2000) (“[w]here waiver
is accomplished by intent, forfeiture comes about through
neglect”). We acknowledge that this court, like many others,
has not always used these terms precisely. Compare, e.g., State
v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011) (discuss-
ing cases in which failures to assert objections were found to
waive objections), with State v. Kennedy, 224 Neb. 164, 170,
396 N.W.2d 722, 726 (1986) (“[a] waiver is the voluntary
and intentional relinquishment of a known right, privilege, or
claim”). See, also, Hamer v. Neighborhood Housing Servs. of
Chicago, 583 U.S. 17, 20 n.1, 138 S. Ct. 13, 199 L. Ed. 2d
249 (2017) (“[t]he terms waiver and forfeiture—though often
used interchangeably by jurists and litigants—are not synony-
mous”); Freytag, supra (Scalia, J., concurring); U.S. v. Noble,
762 F.3d 509, 528 (6th Cir. 2014) (noting that courts have
used the terms “rather loosely”). Despite occasional linguis-
tic imprecision in discussing waiver and forfeiture, there are
meaningful distinctions between the concepts. See Noble, 762
F.3d at 528 (waiver and forfeiture have “different meanings
and difference consequences”).
One of the ways in which the distinction between waiver
and forfeiture is meaningful is that when a party truly and
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to honor that right and no appellate review is available. See
Olano, 507 U.S. at 733 (“[b]ecause the right to trial is waiv-
able, and because the defendant who enters a valid guilty
plea waives that right, his conviction without a trial is not
‘error’”); Staples, 202 F.3d at 995 (“[w]aiver extinguishes
the error and precludes appellate review”). The same is not
necessarily true for forfeiture. In Nebraska, as in the federal
system, a party can forfeit an argument by failing to timely
assert it, yet there is still the possibility that a court could
find that the trial court committed error on plain error review.
See, Olano, supra; State v. Roth, 311 Neb. 1007, 977 N.W.2d
221 (2022). Thus, by addressing waiver in State v. Qualls,
284 Neb. 929, 824 N.W.2d 362 (2021), we were determining
what a defendant must do to completely give up any right to
contend on appeal that the trial court erred by not ordering a
presentence investigation. We did not address in Qualls how
a defendant might, by failing to object to the lack of a presen-
tence investigation, forfeit the right to full appellate review
of that issue.
We are aware that some rights (such as the constitutional
rights to counsel and trial by jury) can be waived, but can-
not be given up through mere forfeiture. See Freytag v.
Commissioner, 501 U.S. 868, 111 S. Ct. 2631, 115 L. Ed. 2d
764 (1991) (Scalia, J., concurring). See, also, Olano, 507 U.S.
at 733 (explaining that whether right is waivable and how
right can be waived “depend on the right at stake”); State
v. Coffee, 389 Wis. 627, 643, 937 N.W.2d 579, 586 (2020)
(“[s]ome rights are so fundamental that they are not subject
to [forfeiture]”). Many other rights, however, including many
of constitutional origin, are subject to forfeiture if not timely
asserted. See, Freytag, supra (Scalia, J., concurring); Collins,
supra. Although we do not mean to diminish the importance of
a trial court’s consideration of information available through
a presentence investigation, we are not persuaded that the
mandate of § 29-2261(1) is comparable to the constitutional
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feit objections based on § 29-2261(1) if not timely asserted
in the trial court. See Schneckloth v. Bustamonte, 412 U.S.
218, 237, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (“[a]lmost
without exception, the requirement of a knowing and intel-
ligent waiver has been applied only to those rights which the
Constitution guarantees to a criminal defendant in order to
preserve a fair trial”).
[5] Having determined to limit our review to plain error, we
turn to whether plain error should be found here. We have said
that plain error may be found on appeal when an error unas-
serted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and,
if uncorrected, would result in damage to the integrity, repu-
tation, and fairness of the judicial process. State v. McSwine,
292 Neb. 565, 873 N.W.2d 405 (2016). We have additionally
observed that plain error “is not a vehicle that should be rou-
tinely used to ‘save’ an issue for appeal where a proper objec-
tion should have been, but was not, made at trial.” Id. at 583,
873 N.W.2d at 418.
Even assuming for the sake of argument that Horne could
show that it is plainly evident from the record that the district
court should have ordered a presentence investigation, we
decline to find plain error here. We initially note that there is
some indication in the record that Horne did, in fact, waive
a presentence investigation. As mentioned above, the district
court stated in a journal entry made at the time of Horne’s plea
that he had voluntarily, knowingly, and intelligently waived
his right to a presentence investigation. And although the
verbatim transcript of the plea hearing does not include any
discussion of a presentence investigation, at oral argument,
Horne’s counsel acknowledged the possibility that a waiver of
a presentence investigation was a standard term in the wellness
court program contract that Horne signed but is not a part of
the record on appeal.
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Cite as 315 Neb. 766More importantly, this is not a case in which the district
court lacked critical information about a defendant at sentenc-
ing. As part of the wellness court program, the district court
had the opportunity to observe Horne and regularly commu-
nicate with him about subjects such as his family, his employ-
ment, and his treatment from his entry in the program in April
2021 until the State filed its motion to remove him from the
program in January 2023. Furthermore, if there was additional
information that Horne felt was relevant to the district court’s
sentencing decision, we see no reason why Horne could not
have offered that information prior to sentencing. Under these
circumstances, we cannot say that it would result in damage
to the integrity, reputation, and fairness of the judicial process
if we allowed Horne’s sentence to stand despite the lack of a
presentence investigation. See McSwine, supra.
Excessive Sentence.
Horne’s final argument is that the district court imposed an
excessive sentence. He does not dispute that his sentence was
within statutory limits, but asserts that the district court none-
theless abused its discretion in fashioning a sentence.
We have on numerous occasions set forth the various fac-
tors that a sentencing judge is to consider. See, e.g., State v.
Thomas, 311 Neb. 989, 977 N.W.2d 258 (2022). Horne argues
that in his case, those factors weighed in favor of a sentence of
probation rather than incarceration if Horne was not allowed
to continue in the wellness court program. Mindful that it is
not our function to conduct a de novo review of the record to
determine what sentence we would impose, see State v. Pauly,
311 Neb. 418, 972 N.W.2d 907 (2022), we find that the district
court did not abuse its discretion in sentencing Horne.
CONCLUSION
Because we find no reversible error on the part of the dis-
trict court, we affirm.
Affirmed.